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Application
- This case concerns a
seven-month-old male child who was made the subject of a final care
order at an Issues Resolution Hearing on 10 November 2009.
Chronology
- The 53-year-old father has
parental responsibility for his son because he is recorded as the father
on the son's birth certificate. He is the present partner of the mother;
but she remains married to another man; and that man (her husband) has
participated in these proceedings solely to convey that he wishes to
have no further involvement (and, accordingly, service upon the husband
of ongoing orders/outcome has been dispensed with).
- The father himself has told
the Guardian that he would like his son to live with the mother and him
and be brought up by them. But the Guardian reports that he recognises
the difficulties such an outcome would present; on the one hand, he
understands that his parenting skills would need to be assessed,
(because historically he couldn't cope with his oldest son, who was
brought up by his sister); and, on the other hand, even if that
assessment proved positive, he would need to give up work in order to be
available to the child 24 hours a day because (as is set out below), the
mother is unable to look after him; and the father has repeatedly said
that he will not give up work because he needs to pay his bills and
"it would drive him mad to stay home all day".
- The mother has told the
Guardian that she would like to care for her son, but the unchallenged
medical evidence makes that aspiration unrealistic. A medical report on
file confirms that the 40-year-old mother lacks capacity to conduct
these proceedings, so the Official Solicitor acts on her behalf. He has
filed a statement accepting the medical opinion that she would require
24 hour supervision of her care of any child; and she recognises that
neither her partner nor any member of either of their families is
available to assist her to care for the child. Indeed, it is said, on
her behalf, that such an arrangement would not be in the child's
interest as he grew older, nor would it be in the mother's interests
(even if it could be afforded/arranged) since she would not want to have
such supervision.
- In addressing who else from
the family might be able to look after the son, the mother spoke of a
cousin called Carol who might be prepared to look after the child, but
nothing has come of that line of enquiry. The Guardian and the local
authority reported that the maternal grandparents have explained that
they are unable to care for the child; and the father confirmed that
there was no one from his side of the family who might do so either.
- The Official Solicitor also
acted for the mother in earlier proceedings relating to a daughter born
in 2007 to the union of this mother and her husband. At the daughter’s
birth, the husband/father was serving a sentence of imprisonment for
drink/driving offences; and the mother went to live in a Parenting
Support and Assessment Unit for 12 weeks. The assessment experience was
not a positive one for the mother; and when the husband was released
from prison the mother left her daughter in the unit and resumed
cohabitation with the husband. This outcome was consistent with the
report of the chartered psychologist that this mother was unable to
anticipate or prioritise her daughter's needs. Those proceedings
concluded in September 2008 with a care order in favour of the local
authority; a placement order was made and that daughter has now been
placed for adoption. The earlier proceedings concerning the daughter
have been disclosed into these proceedings concerning the son.
- This son was born shortly
after the conclusion of the care proceedings for the daughter. The local
authority made immediate application for a care order under section 31
(1) of The Children Act 1989, to the intent that he might be placed for
adoption.
- I stress that the child’s
welfare is my paramount concern. I have to take account of all matters
recited in the welfare checklist as set out in section 1 (3) of the
Children Act 1989, to some detail of which I allude below.
Welfare
Checklist
Age, gender & background characteristics
- Born at the parents’ home and
taken immediately to hospital, the seven-month male baby has been living
with his foster family since two days after the birth (which is “the
relevant date” for the purposes of section 31 CA 89 as will become clear
later). He has a half sister.
Physical,
emotional and educational needs
- He appears to be meeting his
developmental milestones. He may have inherited some learning
difficulties but he is too young for such diagnosis to be accurately
made. His physical emotional and educational needs are being met by his
foster carers with whom he has been living since birth. He has settled
with the foster carers and is reported to be thriving.
- As to contact the mother
initially declined the offered contact, fearing she would find it too
upsetting to have to say goodbye. But she relented and has attended 15
out of the 21 twice-weekly sessions arranged; father has attended seven
of those sessions too.
- The court accepts that it
would not be in the child's best interests to change his living arrangements
until the conclusion of these proceedings. In the longer term, all
parties agree the son needs the security of living in a permanent and
settled family unit.
Capability
of meeting the child’s needs
- The father has not submitted
to a parenting assessment and has made it abundantly clear that he
intends to continue to work full-time and so rules himself out of being
able to help care for the child during the day.
- In the earlier care
proceedings the chartered consultant psychologist concluded that the
mother needed prompting at every stage during contact to provide for her
daughter's needs; she lacked the ability to anticipate her needs and to
intervene proactively. As a child develops so anticipation of need
becomes more and more important; the mother was having trouble in the
very early stages, so the psychologist had no confidence that she would
be able to cope later. It was his considered opinion that there is no
treatment or therapy which would enhance this mother's intellect to a point
where she might become competent to safely parent a child.
- The chartered psychologist
who prepared a detailed report upon mother in August 2009 found her to
be of “a very low intellect… weak memory …and with an IQ below the 0.1
percentile.” He concluded that the mother lacked capacity to consent to
the making of any of the orders that are available to the court.
- The medical and social work
assessments conclude that the mother has a clear and severe learning
disability; she does not have the ability to safely parent her son and
the court is satisfied that there is no reasonable package of support
that would enable her to do so.
- I emphasise that it is not
necessary for the court to attribute blame for this situation; each
parent may well be trying his/her hardest and yet still may be failing
to meet the needs of the child, thus causing him significant harm. And
that is the situation here; there is no assessment of father, but from
the assessment of mother it is clear that she is not a viable carer for
her son; and her own inability to anticipate his needs will inevitably
lead her to neglect the child, from which he would suffer harm.
Wishes & feelings
- At seven months, the son is
not yet of an age at which his wishes and feelings can be ascertained. I
can assume that this child would probably wish to be cared for by his
birth family – for, in general terms, every child is better off being raised
within his family of origin, if at all possible; a child has a right to
be brought up by his natural family unless there are cogent reasons why
it is not in his best interests for that to happen.
- This concept was explained by
Mrs Justice Butler-Sloss (as she then was) in Re O (A minor)
(Custody: Adoption) [1992] 1 FLR 77 – “if it were a choice of
balancing the known defects of every parent, with some added problems
that this father has, against idealised perfect adopters, in a very
large number of cases children would immediately move out of the family
circle and towards adopters. That would be social engineering and it is
important to bear that in mind in looking of the problems which arise in
this case. It was put far better than I could hope to put it by Lord
Templeman in Re KD (a Minor) (Ward: termination of access) [1988]
1 AC 806 at page 812 ‘the best person to bring up a child is the natural
parent. It matters not whether the parent is wise or foolish, rich or
poor, educated or illiterate, provided the child's moral and physical
health are not in danger. Public authorities cannot improve on
nature.’”
- Although mother and father
both would prefer their son to be brought up by them, the contents of
paragraphs 3 - 6 and 13 – 17 above sadly show why that is not a
realistic option in this case.
Articles
6 & 8.
- I have firmly in mind Articles
6 and 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms 1950: which set out the right to a fair
trial and the precept that every citizen has the right to enjoy a
private family life free from the interference of the state unless there
are proper and sufficient grounds to intervene.
- K. v. Finland [2003] 1 FLR 696 sets out the precise terms of the relevant Articles and the
judgment makes it clear that;-
(a) any
order related to the public care of the child has to be capable of convincing
an objective observer that the measure was based on a careful and
unprejudiced assessment of all evidence on file, with the distinct reasons
for the care order stated explicitly;
(b) the
reasoning adopted has to reflect the careful scrutiny which any court could
be expected to carry out by balancing the evidence in favour and against
making an order; and
(c) there is
a positive duty to take measures to facilitate family reunification as soon
as reasonably feasible but that has to be balanced against the duty to
consider the best interests of the child.
- I conclude that family
reunification is not feasible in this case and that it is in the best
interests of the child for an order to be made. I now consider what that
order should be.
Range
of court powers
- In the absence of application
for any other orders, the options facing the court are to make no order,
to make a care order or to make a supervision order; I agree with the Guardian
that this is not a case in which the court can properly conclude that it
is in the child's best interests for it to make no order.
- S. 31(1) of the
Children Act 1989 states that “on the application of any local authority
or authorised person, the Court may make an order -- (a) placing the
child with respect to whom the application is made in the care of the
designated local authority; or (b) putting him under the supervision of
the designated local authority.”
Threshold
criteria
- S. 31 (2) states that
"the court may only make a care order or supervision order if it is
satisfied
(a) that the child concerned is suffering, or is likely to suffer,
significant harm;
and
(b) that the
harm, or likelihood of harm, is attributable to (i) the care given to the
child or likely to be given to him if the order were not made, not being what
it would be reasonable to expect a parent to give to him; or (ii) …(not
relevant).”
- Before any court may
entertain the making of a care order (or indeed a supervision order) the
statutory threshold criteria must have been established. The court has
to be satisfied that the child concerned is suffering or is likely to
suffer significant harm attributable to a lack of reasonable care being
afforded to him.
- In this case the threshold criteria
set out by the local authority are not disputed, and, in view of the
absence of contention about the evidence, it is not necessary for me to
set out matters in detail. I adopt as my findings of fact the threshold
document (agreed between the solicitors for the mother, the guardian and
the local authority, and not disputed by the father – who was not
present in court today because he was suffering from flu). I have
already directed that the document be annexed to my order.
- The facts advanced by the
local authority are based essentially on the allegations of neglect and
abandonment of the older half-sibling which amounted to actual neglect and
which, by reason of the mother’s learning disability, I find to be likely
to be repeated for the son. I am satisfied that he is likely to suffer
significant harm in future unless there had been intervention on the
relevant date, two days after the birth; that situation continues at the
present and into the foreseeable future.
- A supervision order is
clearly not appropriate in the circumstances.
- On the findings I have made
above, and on the relevant date, I find that the child was likely to
suffer significant harm; and the likelihood of that harm was
attributable to the probable want of care from the parents were the
order not to be made. The threshold criteria are thus satisfied and a
care order must be made to enable the local authority to share parental
responsibility and to exercise its duty to act in the best interests of
the child.
- A child has the right to be
raised in an environment where his welfare is not placed in jeopardy and
where he is provided with the opportunity to flourish and reach his
potential. The local authority sets out how it intends to achieve such a
future by its Care Plan.
Care Plan
- The court may only pass
responsibility over to the local authority by way of a final care order
when all the facts are as clearly known as can be hoped. I approve the
care plan in the bundle. Under the Act, the local authority must apply
for a placement order if satisfied that the child should be placed for
adoption. I accept that an adoption order is likely to be the best way
to ensure that this child is afforded secure, stable and permanent care
of high quality with carers who are able to meet his needs in a positive
and sensitive manner.
- There is no application for a
placement order before me today, but the child’s circumstances were
explained to the adoption panel on 30/9/09 and placement for adoption
was approved; that decision was ratified by the local authority
decision-maker on 4/11/09; and I have now listed a placement hearing to
take place before me in the near future in order to preserve judicial
continuity.
Conclusion
- I am happy to record a note
of optimism that pleases everyone and which emerged at the hearing. The
Official Solicitor told me – and indeed I was able to see for myself on
mother’s generous beaming face – how relieved and happy she was that the
local authority's adoption panel has approved prospective adopters who
could care for both the son and his half sibling, (the daughter in the
earlier proceedings) together.
- Knowing the mother and
exercising considerable imagination, the local authority has shown the
mother a DVD recording and photographs of a contact session which has
taken place between the two children; and the mother was clearly
delighted that both children looked well and happy. The authority has
agreed to use its best endeavours to provide the mother with a copy of
the DVD recording and of the photographs, and my order is made upon that
basis.
- I confirm the order published
on the 10th November 2009 when I made a Care Order in respect
of the child in favour of the local authority, with no order for costs
between the parties; and a Legal Service Commission Funding Assessment
Direction for any Assisted Party.
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