England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 46 (Fam)

 

In the County Court

 

 

Before:

District Judge X

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Between:

 

	Local Authority X	Applicant
	And
	A Mother	1st Respondent
	And
	A Father	2nd Respondent
	And
	A Child by their Guardian	3rd Respondent

 

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Hearing dates: 7 October 2010

 

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Judgment.

 

Introduction and issues as to orders sought.

In these Public Law proceedings the Applicant Local Authority seeks a Care Order in respect of one child under S.31 of the Children Act 1989, and an order pursuant to S. 21.1 of the Adoption and Children 2002 authorising them placement of the child with a substitute family by way of adoption with prospective adopters[ a placement order.] Throughout these proceedings, the Child’s welfare is my paramount consideration. The child for whom I am concerned is aged one.

 

There has already been lodged with the court a trial bundle which contains considerably more detail than contained in this judgment. The matter came before myself on a number of occasion and was listed on the 16^th September as an I R H, when the parties attended all of whom were legally represented. As the parents adopted a neutral position on the making of the care and placement orders, all the parties asked if in the circumstances I would deal with the matter finally on that day and provide a reasoned judgement shortly thereafter, and that the subsequent final 4 day hearing in October be vacated. After a short adjournment I proceeded as agreed and made the orders sought. This is my judgement my reasons for my earlier decision.

 

Family Dynamics

Mother [ M ] is under 30 and father [ F] under 45. Neither are employed. The Local Authority’s [LA] proposals are supported by the Guardian [ G ]. The child remains in foster care where it has been since birth. Physically the child appears healthy and developing well but now needs good quality loving care where the child can be brought up in a loving family arrangement. However immediately following birth the child was unsettled and the paediatrician who examined the child stated its behaviour was indicative of withdrawal from opiates.

 

Father and Mother cohabit. There are no alternative kinship carers despite the earlier suggestion of the maternal aunt, who subsequently withdrew from that proposal. No statements have been filed by the parents as to their final alternative proposals. Despite initially exercising contact 2 times per week for a limited period, neither parent has exercised contact individually or jointly to the child since mid April 2010, some 5 months ago, and despite the efforts of G, they have failed to meet or engage with G. No reasons for these failures have been provided by either parent.

 

Chronology

There is a detailed chronology of 55 pages of significant events set out at the beginning of the bundle which I adopt for the purposes of this judgement. In summary M and F have a history of alcohol abuse. F is dependant on a prescribed drug dihydracodeine, and during the pregnancy M also drunk alcohol and tested positive for that drug. She has slashed her wrists and assaulted police officers for which she is on probation. Additionally it was reported M was assaulted during the pregnancy by F when he tried to strangle her, throwing a knife at her and kicking her in the abdomen when she was 23 weeks pregnant. F has a long history of substance abuse, criminal offences, [he has serve a prison sentence], domestic violence and suffers with mental health problems. During the pregnancy F attempted suicide. Both parties have a long involvement with social services and when they visited the home immediately prior to birth it was obvious no preparation of the Child’s room or the home for the expectant child had been undertaken or commenced. The LA contend that neither individually or collectively can the parents safely parent the child.

 

The current circumstances of the child is that it remains in foster care where it has been since birth. F and M continue to cohabit and despite being offered contact have not exercised the same for 5 months.

 

History

The parties met in October 2008, since when their relationship has been unstable and volatile. They reside in a 2 bedroom flat that is privately rented. Domestic violence has been prevalent throughout their relationship. Each parent came into the relationship following the break up of their previous relationships with other partners. F had 2 other children age 15 and 17 who live with their mother to whom F has some limited contact. They are not subject to Social Service interventions. Additionally he has another child by a different party, now aged 8 who was subsequently adopted. F additionally has been injured when he fell off a building and was subsequently injured in motor cycle accident. The result is he is in continuous pain taking the drug mentioned. He admits to binge drinking, and making 2 attempts on his life. He accepts the criminal convictions and that the relationship with mother has been the subject of domestic violence.

 

Mother has given birth to 2 other children. One now age 5 resides with the the child’s paternal grandfather. M does not have any contact. Tragically her other child born in 2001 died in 2003 from sudden death syndrome. She also admits she abuses alcohol and has made attempts on her life and that she has been subjected to domestic violence. All of the above is referred in the threshold criteria to be found at pages A86 – A90 of the bundle.

 

Evidence

 The LA evidence is contained in a very detailed and full statement of 31 pages by the social worker, appearing at page C21-C51 of the bundle. F has a long history of substance abuse, offending behaviour, domestic violence, physically assaulting a child volatile relationships, and mental health issues including 2 attempts at suicide. Additionally following 2 unrelated accidents he is prescribed the opiate dihydrocodeine as he wares a calliper on his right leg from the injuries sustained in the 1992 motorcycle accident.

 

 M had an unhappy childhood with her mother abusing alcohol and being volatile and was referred as early as 1992 to the child and adolescent mental health team. Subsequently, M suffered the tragedy of her daughter’s death from an undiagnosed congenital condition which was neither predictable or preventable, although the child was subject to neglect prior to the death.

 

Following the current pregnancy, M presented herself when 23 pregnant to hospital drunk and having taken dihyracodeine, complaining of an assault by F, who himself had been admitted having taken an overdose.

 

Following the birth the child was voluntarily accommodated under S.20 Childrens Act 1989 and placed with foster carers with a regime of contact for both parents. Subsequently all contact ceased with both parents failing to attend any birth counselling sessions.

 

Neither F or M have any family support, such family expressing the view they are emotionally exhausted or they are running out of patience. CADT [ Cardiff Alcohol and Drug Team] have ceased their involvement with F as he has not engaged with them.

 

The LA’s core assessment conclude that neither parent has made any improved changes to their lifestyles in order to parent the child, and the child’s safety would be at risk in their care and his needs are likely to be neglected. Additionally both parents failed to work on their individual problems, as well as their difficulties as a presenting couple. The conclusion of the LA is that despite the intervention and advice, both current and historic, neither have changed their individual or joint risk taking behaviour to themselves or others.

 

Medical expert evidence

The above history generated at least 6 expert reports over many years dating from the involvement of social services and include psychiatrists and psychologists, all of whom reported negatively for both parents. The most recent reports find F fulfils the criteria for alcohol dependence syndrome and opiate dependence syndrome. Despite being advised to abstain he has not been able to achieve that goal. F’s behaviour is of concern when he is intoxicated as he can engage in self harming behaviours. The conclusion of the psychiatric report is that F is impaired in his capacity to parent the child. Similarly the recent psychological assessment and psychiatric examination undertaken on M and the F are negative.

 

It was clear that in the absence of significant changes in the lifestyles by F and M, they would be likely to continue to lead their chaotic lifestyle characterised by alcohol dependency, opiates abuse, violence, in which M and F and any child would be at risk of emotional and physical harm from them both.

 

A parenting assessment of M and F was not possible because of the parents lack of engagement with the LA.

 

The Burden and Standard of Proof.

The burden is on the Local Authority as the applicant. In re: B [2008] UKHL 35, Baroness Hale stated

 

‘…I … would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold at s31(2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies’.

 

Threshold

In a Public Law case a Court has no jurisdiction to make any Public Law Order unless and until the so-called threshold criteria set out in S 31 of the Children Act 1989 are established. I have to be satisfied on the balance of probabilities, that the child concerned, is suffering or is likely to suffer significant harm or likelihood of harm and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him/her if the order were not made not being what it would be reasonable to expect a parent to give to him/her.

 

In relation to the other matters relied upon as satisfying the threshold criteria I find M+ F had regularly been drinking to excess, taking drugs, and have remained in a violent relationship punctuated by serious violence. I am satisfied that taking the above into account the threshold criteria in respect of paragraphs 1- 16 appearing in the bundle at pages A86 –A90 has been satisfied.

 

Capability

It is useful to remind myself of what Hedley J said in re L [care; Threshold Criteria ] 2007 1 FLR 2050

 

“society must be willing to tolerate very diverse standards of parenting including the eccentric and barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.

 

It means that some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.

 

Disposal

Once the threshold criteria are established the court has to ask a number of sequential questions. The essential questions are: Whether an order should be made at all, and if so, what kind of order. In answering these fundamental questions, the court has to apply the principle that the Child’s Welfare is the paramount consideration; apply the statutory Welfare Checklist; not to make an Order unless the Court considers that the making of an order would be better for the child than making no order at all; and before making a Care Order, to consider and approve the Care Plan and the proposals for future contact if any.

 

The Subsequent Assessments

The Guardian endorsed and supported the LA and the findings of the medical experts, adding that neither parent had engaged with her despite considerable efforts by the G. Additionally the G has carried out a Risk Assessment in respect of the child, concluding that both parents presented as highly dangerous carers. The G found that the chances of rehabilitation of the child was remote owing to the history of violence and abuse which merely replicated that found in their former relationships.

 

Decision

Having reflected on all of the evidence I have heard and read and the submission, and as family reunification is not possible, it is clear that a care order has to be made as this is the only real option available upon a proper consideration of the welfare checklist under S 1.3 Children Act 1989. Both the allocated social worker and the guardian have completed the detailed exercise of the operation of the Welfare Checklist in the circumstances of this case and I agree with their views and adopt them and echo the guardians comments who supports them. As family reunification is not possible and as there are no extended members of the family available to assist I am left with no alternative but to make the care plan presented to the court as being the best appropriate.

 

I endorse the care plan and move to make a placement order which will enable the local authority to implement their care plan. I dispense with the parents consent having considered all the factors under S.21 Adoption and Children Act 2002.

 

And should there be direct contact? Some indirect contact, can show to the child through that contact, the parent has not given up and has remained concerned as to the Childs interest and well-being. However in this case, I cannot see that is appropriate, and I order no contact.

 

The Human Rights Act 1998

The principle of proportionality must always be considered alongside the welfare checklist of S.1 Children Act 1989.

 

Hale LJ in re ; C&B 2001 1 FLR stated;

 

‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted to that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interest of the child’

 

I have considered the relevant articles of the Convention on Human Rights. I am satisfied that the interference with the mother and father’s right to family life is both justified in law and pursues a legitimate aim, namely the welfare of the child. By the same token the interference fulfils a pressing need and is proportionate to that need.