England and Wales County Court (Family)

Judgement

Application

1. This case concerns two young brothers. L is two years one month old; K is one year and two months old. On 13 July 2009 the local authority applied for a care order in respect of the older boy, followed by the issue of care proceedings in respect of the younger boy nine days later. The Care Plans envisage adoption; the Best Interests Panel approved placement for both boys together; a placement application in respect of both children was then issued and all applications fell to be determined before me on 20^th September 2010.

2. I explained at the start of the hearing that, as I am required to create an anonymised judgment for publication on the website (pursuant to the current Pilot Scheme), I would not deliver a detailed judgment at the conclusion of submissions. Father was keen that I should announce my decision straightaway and publish my fuller reasons later. I therefore described what I was going to do and explained in outline why I was going to take that course; this written judgment amplifies those reasons. The requirements of anonymity mean that all personal details become expunged - precisely so that neither the location nor the individuals involved (the children, the parents or anyone else) can be identified from the text. Although this means that all facts are de-personalised so that the decision is inevitably harder to read and digest, it is possible that this further distancing will make its conclusions easier to accept.

3. I have arranged to hand this judgment down formally on 11/10/10 at 11:10am, when the attendance of the parties and their advocates is excused, but from which date the time limit for any appeal will be measured.

Chronology

4. At the outset the children remained with their mother; but, after heightened concerns about parental behaviour, the children were removed and placed with the same foster carers with whom they have been living since July 2009. The parents never married, and separated in May 2010.

the mother

5. The children's mother has just turned 20 years old. After occupying many addresses she has been living, most recently, in temporary accommodation provided by the local authority.

6. She was assessed by Dr Shaun Parsons, a Chartered Psychologist. His report is dated 15 March 2010. He observed that the mother functioned in the low average range of adult intellectual ability; but he was impressed that she recognised the local authority's concerns about both children. Despite her "very problematic personality structure, which is strongly supported from the evidence in the papers as well as psychometrically and clinically" he received her assurance that she would cooperate with professionals. But he confessed that he was "not able to quantify the degree of change that may be possible in the future." He concluded that he was “largely pessimistic that (mother) will be able to change to a level where she will be able to offer a good enough standard of care to a child in her care or would be able to protect a child in her care from the risks that may be posed by others."

7. Following a negative parenting assessment from the local authority, an independent social work parenting assessment was undertaken by Shirley Roberts (who received very limited cooperation from the mother). The ISW’s report concludes that because mother has a "troubled and traumatic history … I would have to express concerns as to (the mother's) capacity to parent her children … I would question her capacity to sustain any programme of work that might have the potential to assist her."

8. The Social Worker and the Guardian made sterling efforts to persuade the mother to sustain her involvement. She last had contact with the children on 21^st May 2010, thus fulfilling the pessimistic prophecies of both the Psychologist and the Independent social worker. Since Spring 2010 she has become disengaged from the process completely and has failed to cooperate with even her own solicitors. Their Legal Service Funding Certificate was therefore discharged and she is unrepresented. She was last seen by the Local Authority Social Worker on 17 September 2010. On that occasion, she gratefully received various photographs of the children, including photographs which had been encased in a key fob. But she told the social worker that she did not intend to attend the imminent final court hearing; and indeed she did not attend.

the father

9. The father of both children is presently 19 years old. He has parental responsibility by virtue of his appearing on the children's birth certificates. Initially the Official Solicitor represented the father; but following a hearing before my colleague in August 2010, it was found that the father did have capacity to litigate, since when he has given instructions to his solicitors directly.

10. Following separation, he returned to the West Midlands Area and currently lives with his parents. Dr Yerassimou has carried out a psychiatric assessment of the father; his report is dated 5 May 2009. It describes a boy who was brought up in the care system with a long history of emotional and behavioural difficulties (going back to his early childhood) which appear to stem from severe physical, emotional and (unproved but probable) sexual abuse. He suffers from borderline learning difficulties; he has a low IQ, and when encountering difficulties in coping, his frustration has been a trigger for violence; at the time of the assessment, he was also agoraphobic. This combination of factors arising from his traumatic past led the psychiatrist to conclude that the father would experience considerable difficulties in parenting the children.

11. Ian Stringer, chartered psychologist, also prepared a report upon the father. It records how father acknowledged experiencing difficulties in complex personal and interpersonal relationships, making it difficult for him to embark upon independent living. "The added complexities of parenting will add to his difficulties … he is impatient of any information which does not fit his simplistic view, rejecting advice aggressively."

12. For a long period he too became disengaged from the court process, neglecting to attend for drug and alcohol testing, the NSPCC Caring Dad's Programme, the Parent Nurturing Programme (run by Social Services) and with his own consultant forensic psychologist. He last saw the children a year ago in September 2009 and only re-instructed his solicitors in August 2010. However, the father made an impressive effort to be present in court at this final hearing. He got up at 4am, caught the 6am train here, and then carefully explained his position.

13. He accepts that he cannot offer the children a secure home immediately or indeed in the foreseeable future; but, rather than the children being placed for adoption now, he would prefer the children to remain in foster care so that he might exercise contact to them and, if his circumstances changed -- for instance, by his entering into a stable relationship in the future -- he would hope to be able to offer the children a secure and loving home at that stage. But he was realistic; he admitted that this outcome must appear to be selfish - something that was in his best interests - when the court had to be guided by what was in the children's best interests. And he was emphatic that, whatever his feelings, he wanted me to make the decision about what was right for the children based solely upon what was in their best interests.

14. We discussed this during the course of the proceedings. He recognises that he cannot guarantee making the necessary changes to his lifestyle in a timescale which fits with the children’s needs for immediate certainty. I emphasised that he, himself, is not yet 20 years old; he has begun the process of turning his life around and I was impressed by his bravery in coming to court and his determination to see things through. The mother also has only just turned 20. These are two very young, inexperienced parents, who have led chaotic lifestyles.

15. I have read with care all four of the guardian’s reports and I suspect that the mother’s disengagement from Spring of this year amounts to a similar recognition (to that of the father) that neither parent can currently offer their sons the stability which the children need.

16. In addressing who else from the family might be able to look after the boys, no-one else has put himself or herself forward. The records show that the local authority delayed instituting these proceedings for many months whilst trying to engage with and support the parents in the clear hope of inculcating a full understanding of the risks and securing sufficient improvement in behaviour – but the parents failed even to engage with a local-authority-run nurturing programme. I think both parents understand why the court has to prioritise the children's needs for security and stability; and I am satisfied that both parents have effectively submitted to the inevitable when ceasing their effective opposition to the orders sought. I find that both parents are unable to prioritise the children's needs and to assume the heavy responsibility for parenting their sons, which has made their separation unavoidable.

17. The local authority made application for a Care Order under section 31 (1) of The Children Act 1989, and in its final care plans (annexed to the order) the local authority recommends adoption. I also add that both the allocated social worker and the Guardian have completed the detailed exercise of going through the welfare checklist and reducing their observations into writing, (which have been read by both parents). I respectfully agree with their views and adopt them.

18. I stress that the children’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, and I have done so; but to the most salient I allude below..

Welfare Checklist

Age, gender & background characteristics

19. These two boys are white, Welsh/British, and aged two and one respectively. The respective relevant dates for the purposes of section 31 CA 89 are 13 July 2009 -- for the older -- and 22 July for the younger. Both boys enjoy a lot of adult attention and the Guardian reports that the two children have a close bond.

Physical, emotional and educational needs

20. Both children are healthy with no specific health needs (save that the older boy has been referred to a consultant because his feet have been observed to be turning in; the younger boy has an undescended testicle and has been similarly referred to hospital). Their immunisations are up to date and they are both meeting their developmental milestones. They have been living with the same foster family since 31st July 2009. Their primary attachments are to their foster mother; they appeared to the Guardian to be "happy contented children, secure in their environment." They are both thriving.

21. As to contact the father has not seen the children since September 2009 and the mother has not seen them since May 2010; that may speak volumes about commitment; but nevertheless, appropriate goodbye contact will be offered and the father expressed himself as being grateful for that opportunity.

The likely effect of any change upon the children

22. Any child needs to grow up in a family where his developing needs for good quality care and nurturing and support will be met in full so that he is given the security of living in a permanent and settled family unit. These children have formed appropriate secure and loving attachments with the foster carers and it is reasonable to anticipate that, if handled sensitively, they will be able to transfer these attachments to an adoptive family.

Any harm which the child has suffered or is at risk of suffering

23. One child has suffered, and both are likely to suffer, significant harm as a consequence of the parent's chaotic lifestyles and their failure to prioritise the children's needs over their own.

Capability of meeting the child’s needs

24. It appears that these two inexperienced parents have been unable to prioritise their children's needs above their own. As I described in the opening dozen paragraphs of this judgement, both the mother and the father have suffered deeply ingrained experiences which colour their capability of meeting their children's needs both now and in the foreseeable future.

25. I emphasise that it is not necessary for the court to attribute blame for this situation; the mother and the father might well be trying their hardest and yet still may be failing to meet the needs of the children, thus causing them significant harm. No other family members are seeking care of the children.

Wishes & feelings

26. Both children are too young for their wishes and feelings to be ascertained. I can assume that both children would probably wish to be cared for by their 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. And cogent reasons exist in this case.

Articles 6 & 8.

27. 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.

28. K. v. Finland [ 2003] 1FLR 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.

29. I conclude that family reunification is not feasible in this case and that it is in the best interests of both children for an order to be made.

30. I now consider what that order should be.

Range of court powers

31. 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 children's best interests for it to make no order.

32. 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

33. 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).”

34. 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.

35. The threshold document in this case runs to 6 closely typed pages. At the relevant date for the older child (13 July 2009) the local authority avers that the older child had suffered significant harm, the broad characteristics of which have been conveniently collected under three main headings;

·       the first is domestic violence between the mother and father, (and between them and the extended family) in the presence of the older child. Both parents had convictions for violence prior to their getting together; and the relationship between them was volatile and violent - and a dozen instances are specifically cited.

·       Secondly the parents failed to provide necessary emotional and physical stability for the older child as instanced by over 20 different addresses in which their oldest son lived prior to being taken into care. Instances included the mother being evicted from a local authority hospital because of her failure to abide by the rules, and their removal from the homes of relatives who had called the police.

·       Thirdly, the parents failed to provide consistent and proper care - occasionally observed levels of hygiene were unacceptable; the older child suffered weight loss and was anaemic; he fell out of bed because of the absence of proper care for his safety; he was observed to have been kept out all night by his mother; there was need for a least one emergency loan from social services because of a failure to budget adequately. There was an almost complete absence of routine.

36. At the relevant date for the younger child (22nd of July 2009) the local authority came to the view that the younger child was likely to suffer significant harm because of the parents' behaviour in front of and treatment of the older child.

37. By reason of incidents of domestic violence on the 27th & 29 July 2009 both children were removed into foster care on 31 July 2009 and have remained there ever since.

38. The mother gave instructions to her solicitors to lodge her response to the threshold document, disputing some of the minor factual events, but expressing broad agreement with the document; she accepted that, even with her cavils, the threshold criteria were made out.

39. The response to the threshold document filed by the Official Solicitor on behalf of the father accepted the allegations of domestic violence, and accepted that the older boy would have witnessed arguments between the parents.

40. [Having regained the capacity to litigate, (before me) father confirmed that document as being accurate]. He, too, accepted that the threshold criteria were made out. Therefore, neither parent actively opposed the recitals in the threshold document relied on by the local authority.

41. I adopt as my findings of fact the threshold document (the text of which is set out in the bundle in section A [pages 106 to 111]. I am satisfied that the children would be likely to suffer significant harm in the future unless there had been intervention on the relevant dates, and I find that that situation continues at the present and into the foreseeable future.

42. A supervision order is clearly not appropriate in the circumstances.

43. On the findings I have made above, and on the relevant respective two dates, I find that the older child had suffered significant harm and that both children were likely to suffer significant harm; and the likelihood of that harm is attributable to the probable want of care from the parents were the order not to be made. The threshold criteria are thus satisfied for both children 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 children.

44. 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 for each of the children.

Care Plan

45. 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 reasonably expected. I approve the two Care Plans (dated 7/9/10) which I annexe to this order and I make a Care Order to the Local Authority in respect of both children.

46. Under the Act, the local authority must apply for a placement order if satisfied that a child should be placed for adoption. I accept that an adoption order is likely to be the best way to ensure that these children are afforded secure, stable and permanent care of high quality with carers who are able to meet their needs in a positive and sensitive manner.

Placement

47. The children's details were placed before the Local Authority's Adoption Best Interest Panel which recommended that adoption was the best option in the range of possible outcomes for the children; the Local Authority Decision Maker ratified the recommendation of Panel; the Local Authority issued applications that the children might be placed for adoption, and has completed its schedule B reports. I formally appoint the Guardian in the child care proceedings as the Guardian in the placement applications, and (in anticipation of appointment) the Guardian has completed her report, dated 20/9/10.

48. I adopt (within these placement applications) my findings in relation to the care proceedings. I also address the additional material required by section 1 (4) of the Adoption and Children Act 2002.

49. I adopt each of the Guardian’s conclusions in her third & fourth reports as my own, and I am satisfied that on the evidence about contact that it is highly probable that the two boys will not suffer distress at cessation of contact, ‘though I echo the guardian’s recommendation for letterbox contact.

50. The children are achieving their developmental milestones, are happy and settled with their foster carers, and have no special needs for the purposes of section 1(4)(b) of the 2002 Act. The primary relationship which each child has is with their foster carers (and with each other as siblings). The parents sadly have been unable to commit to regular contact; they lack the capacity to parent the children to a good enough standard and there are no extended family members are able to care for the children adequately.

51. There are no other close relatives with whom the sons have had contact; and no-one else has been successfully assessed to look after them. I am asked to look at the likely effect on the children (throughout their respective lives) of each having ceased to be a member of the original birth family and become an adopted person (pursuant to section 1 (4) (c) of the 2002 Act). Father has not seen them for a year, and mother only four times in the last year, (during weeks in late April and early May) the most recent being now some five months ago. As observed above, it is therefore unlikely that they will suffer any withdrawal symptoms at the cessation of contact.

52. The parties have thought about the likely effect on the children – throughout their lives – of their having ceased to be members of the original family and become adopted. The legislation emphasises the need for the court to look at the long term nature of this decision. The father attended this hearing, and felt unable to consent to the making of a placement order for the sons, preferring to abstain from giving positive consent, and leaving that decision to the court. Mother did not attend and did not supply her consent. The Guardian supports the local authority position that the children should be adopted. For the avoidance of doubt I find that section 21(2)(a) of the 2002 Act is engaged, and I am satisfied that the children’s welfare requires that I dispense with parental consent to placement. I am satisfied that the sons' best interests are served by placement orders being made for each of them in order to achieve the best prospect of permanence and stability for the children.

53. The parents can make a significant contribution towards their children's development of a healthy sense of their own selves by contributing to this life story work as fully as possible. I am keen to emphasise that the parents’ contribution really is essential; it will be very important to their sons in due course – when reading their carefully recorded life-story – that the brothers are able to have, with their parents’ cooperation, a clear knowledge and understanding of their birth family, with photographs and such other information as they can supply so that any questions they may have in the future might be answered.

54. Whilst adoption does not guarantee a successful outcome, all of the indicators present in this case are very good; the children are very young, their development is entirely normal, their health is good and, in the absence of major trauma, they are likely to settle into an adoptive placement. I am satisfied that the best interests of both boys are served by a placement order being made in order to achieve the best prospect of permanence and stability for both of them, and I so order.

ORDER

1       I therefore make a care order and a placement order in respect of each child.

2       There is to be letterbox contact afforded to the parents on the usual annual basis. Farewell contact is to be offered to both parents arranged as detailed in the Care Plans.

3       There shall be no order as to costs between the parties. There be Legal Services Commission Funding Assessment Directions for any Assisted party.