England and Wales County Court (Family)

IN THE NEWCASTLE-UPON-TYNE COUNTY COURT

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		14th February 2014

1. THE JUDGE: I am concerned with the welfare of X who was made the subject of a care order by this court on 17^th July 2013 and in respect of whom South Tyneside Council now seeks a placement order. There is no active opposition to such an order but that does not absolve the court of the responsibility of making a determination. The history is complex and much of it is not necessary for me to repeat for today's purposes. X was the oldest of four children, full siblings, who were subject to care proceedings brought by South Tyneside Council, the children of Y and Z. She has three older half siblings who were not part of the proceedings but none of whom reside with their mother.
2. X is, sadly, a damaged and vulnerable child and that damage comes directly from her life experiences which are reflected most succinctly by the threshold findings made by the court in July last year, all but one of which were conceded by the parents, and from it one takes the knowledge that there had been significant Local Authority involvement with X's mother and the older children and then, once she formed a relationship with X's father, with them relating to alcohol and drug misuse, domestic violence and poor home conditions, all of which the children had been exposed to. There was a long history of neglect; there was a history of failure to engage with support services and not being open and honest with professionals. There were also matters such as missed health needs and so on.
3. The finding that was not conceded, but which was nevertheless made, was that X's father had sexually abused her and two of her siblings in really quite a serious way and that this is something that had occurred to the knowledge of the mother who had done nothing to protect it. The effect of that abuse is apparent from a report from Dr Tyler, the psychologist, that I had read and, as I will come to, there has been further information disclosed which just heightened the concern in relation to that.
4. X was placed in foster care on 13^th July 2012. She was placed with brand new (that is to say first time) foster carers, called Vicky and Darren and she has been there ever since. At the final hearing of the care proceedings the care plan for each child was one which included adoption by way of making a placement order and the court approved the care plan for all four children but declined to make a placement order in respect of X, unlike the other three, because of the concerns surrounding that plan, the opposition of the children's guardian, Barbara Hewitt, to it and opposition that had the support of Dr Tyler, the psychologist. It was clear to everyone that X needed therapeutic help. The NSPCC was recruited to assist. It carried out an assessment over the summer. It concluded that the therapeutic work was likely to take a minimum of 30 or 32 weeks and it might take up to a year. It also, critically, concluded that the foster carers were not experienced and sufficiently equipped to provide the support that X would necessarily need during such a process and recommended that it should be carried out in a placement where X was the only child.
5. Based on that assessment the Local Authority made concerted attempts to find a specialist foster placement where those conditions could be satisfied but, despite the use of external agencies and the like, those searches, unhappily, failed to reveal such a placement. Meanwhile time was marching on. The other three children had been placed. I have read of the farewell contact that X had with each of them and it is, frankly, heartbreaking to read of this small girl expressing pleasure, as she did, at the finality and permanence that her brother and sisters were thereby achieving.
6. The Local Authority has had, therefore, to re-think. Hence, it now proposes after extensive consultation with the professionals, including with the NSPCC, that given X's age, and I think I have thus far failed to mention it but she was born on 29^th April 2007 so will be 7 years old in just a couple of months time, that the priority has to be the placement and, accordingly, provided they are fully armed with all the necessary assessments and other material, an adopter should be found who is prepared to claim X and to support her through therapy and to be forever parents. If that cannot be achieved within a period of six months, then the search should cease in the interests of finality and X should stay where she is.
7. When the NSPCC initial assessment was carried out, it provoked some quite extreme behaviour on the part of X. In retrospect, the timing over the summer holidays was thought to have been ill-advised but hindsight is a wonderful thing. Notwithstanding that, these foster carers have stuck by X through thick and thin and have done a remarkable job and I want to say here and now that they are thus far unsung heroes and I very much hope that they are told, because they have already indicated a commitment to undergo further training in the immediate future to support X in the meanwhile. They are ready, willing and able with support to prepare X for a move if and when a potential adopter comes forward and simultaneously they offer to be long term foster carers if a permanent, alternative family does not emerge. That is, in the court's judgment, quite remarkable and selfless as well as a wholly X-focused approach and they are greatly to be commended.
8. Whilst all this was going on, I should mention that X's maternal grandmother, Q, emerged as a possible family carer for the first time, none other having been identified who were suitable at any rate, at the time of the care proceedings being finalised. Q has been screened and I have read the careful assessment prepared by the social worker which, sadly, rules her out as a family carer. It is not necessary to go into the detail but I say only this. It was clear, consistent really with X's almost complete ignorance of anything to do with Q who does not appear to have been a figure in her life, let alone a significant figure, Q knew very little of the background and Local Authority concerns and there was certainly evidence that there was not a full understanding even of those concerns that she had. Perhaps most troublingly, she disclosed very serious allegations that would arguably cap anything that even appears in the schedule of findings as they were found but, notwithstanding that knowledge, had taken no action to protect her grandchildren in the care of their parents. She has, therefore, properly been excluded and I am satisfied has accepted that, having approached it on the basis that she wanted to do what was for the best and would be guided by professionals.
9. The parents, who have not seen X since January 2013 and are subject to an order under section 34(4) of the Children Act whereby the Local Authority was granted permission not to facilitate contact between X and her parents, no longer oppose the making of a placement order. Neither parent has attended this morning, I am satisfied that each has given their legal representatives instructions. It must have been an extraordinarily hard decision for them to make. It is entirely understandable that they did not feel able to come here today and notwithstanding what is said about them and what they had done and the findings that have been made against them, it is nevertheless, as Miss Moulder on behalf of the Local Authority said, to their credit that they have adopted the position that they have which ultimately is one that puts X's interests first.
10. The children's guardian, who has been nothing if not forthright, remains concerned as to whether adoption is the appropriate course, particularly given that therapy has not occurred but has in a considered way bowed to the Local Authority's view and that of other professionals emphasising the need at this stage to finalise X's future. To be entirely fair to Miss Hewitt, she expresses no criticism of the Local Authority thinking as it is now presented to the court but instead she expresses a different professional opinion. She has welcomed the work that the Local Authority has now done, as is reflected by the care plan and the final evidence and, as I say, the plan itself in its present form and thus she guardedly supports it providing the adopters are fully informed as to what it is that they are taking on, specifically saying that they ought to see Dr Tyler's report as well as her own several reports written during the course of these proceedings and the care proceedings and also with an assurance that any prospective adopter will be adequately supported and trained, all things which the Local Authority endorses. There is, of course, scope in many circumstances for professionals to disagree, entirely consistent with the discharge of their duties. X's case is very much one where there is, sadly, no perfect solution and I think that the guardian's stance has been a principled one and a perfectly reasonable one and I recognise her quite proper independence of thought and pay tribute to the manner in which she has approached this.
11. When the care order was made, the Court of Appeal had not yet decided Re B-S [2013] EWCA Civ 1146. As all concerned with children in the public law system now know, it has transformed the way that the court is required to approach cases where a placement order is sought and the President in B-S reminded courts faced with making what is a very far reaching decision indeed that, first of all, it is not enough to show that a child could be placed in a more beneficial environment for her upbringing, reminded courts that the Supreme Court in Re B [2013] UKSC 33 earlier last year had used striking language as to the degree of necessity required before making such orders and of the need to explore and attempt alternative solutions.
12. The reminder as to the assessment of the parents' ability to discharge their responsibilities does not really arise in the circumstances of this case. What does arise is the need for proper evidence both from the Local Authority and the guardian, addressing all the options realistically possible and containing an analysis of the arguments for and against each and as well as identifying the need for a global holistic evaluation, the Court of Appeal specifically endorsing what Lord Justice McFarlane had said earlier last year in Re G [2013] EWCA Civ 965 which I will mention briefly. It went to say that absent such evidence, the court would not be properly equipped to decide such issues and even if the 26 week timetable for care proceedings would not be met, the stakes were too high for rigorous adherence to an inflexible timetable which ran the risk of justice being denied. That is a factor in this case; although the care proceedings were resolved, it is the fact that more than 26 weeks have elapsed since they were resolved and we still do not have finality.
13. This is, of course, a case where the holistic evaluation of the welfare stage realistically involves just two options. No family placement exists: that is a matter of fact and concession. So the only options that would secure X's welfare would be long term foster care or placement with a family permanently through adoption and I am quite satisfied that, in the way that the Court of Appeal said in Re B-S, the various pros and cons have been fully discussed, in particular, by the social worker in her final statement. In talking about the evaluation in Re G, Lord Justice McFarlane specifically identified the need to evaluate any risk of harm from alternative options by any other person, namely the Local Authority as a corporate parent, and the social worker in this case has pointed out the very many features of long term foster care which are disadvantageous to a child as opposed to adoption if that can be achieved.
14. Finally, in Re W [2013] EWCA Civ 1227 and drawing on what Lady Hale said in J [2013] UKSC 9, it seems to the court that the question which ultimately has to be asked given that the harm is identified and the source of that harm has been identified, what will be best for X? That question needs to be determined in accordance with the welfare checklist in the Adoption and Children Act 2002. X's immediate wishes and feelings would almost certainly be to remain with Vicky and Darren. She is, however, amenable to an alternative and has, as has been pointed out, gone through the experience of seeing her younger siblings all go off to be placed for adoption. Her wishes and feelings are important but they are but one factor that has to be weighed in the overall evaluation of the ultimate question, which is the welfare question as to what is best for her. It is quite clear that X is a child with very significant emotional needs, I have touched on that already and she is a young girl who has had very difficult life experiences who needs permanence and support and finality, having been in litigation and in a state of limbo now for a very considerable period of time. The harm to which she has been exposed has been considerable.
15. It seems to the court that the likely effect of X ceasing to be a member of her birth family, which was one of the factors singled out for special attention by Lord Justice McFarlane in Re G, does in this case fall to be considered along with her ability to have any kind of continuing relationship with her birth family. There is, of course, no more far reaching interference with a child or its parents' Article 8 rights than to sever the link with the birth family. The consequences are profound, X has already had life story work and more will no doubt be necessary in the fullness of time in the event that this severance occurs. However, this case is unusual in that, first of all, there has been no contact between X and her parents for more than a year with, I am satisfied from what I have read, positively beneficial effect so far as X is concerned. She is described as having a disorganised attachment and having read some of the experiences that she has had, that is not in the circumstances surprising. The section 34(4) order remains in place but it does not, of course, preclude applications being made in the future by her parents to have contact with her and, as Miss Moulder rightly said, any such application would have to be determined on its merits and would have to consider X's best welfare interests, albeit at the present time nobody anticipates any immediate plan that such an application should be made.
16. On the other hand, X's siblings have now started to go through the process of adoption, having been placed for that and I am told that the process of applying for an adoption order is now underway. Subject, of course, to all of the adopters concerned and two of the children have been placed together, one on their own, if X was placed for adoption we have potentially three sets of adopters but subject to that, contact in fact has good prospects of being maintained. Were X to remain in long term foster care, provided there was no contact with the parents that may well continue but the moment the possibility of parental contact raises its head in the future, which I repeat would have to be considered on the merits, the irony is that she would have a better prospect of at least maintaining the link with her birth family by adoption because of the link with her siblings than if she remains in long term foster care which would put that relationship potentially in jeopardy.
17. The professional view in this case is that the sibling relationship is more important than that with the parents. Of course, one is always told that the most important lifelong relationship is between siblings and so, on the face of it, in the circumstances of this case that sibling relationship would appear to be the more important one. If one was asked which relationship to prioritise, it would be that one. So against a picture of the parents not opposing this course today, unusually the prospect of continued and worthwhile familial contact are ironically better, in the court's judgment, were a placement order to be made than not. So for all of those reasons, I am satisfied that lifelong the course that is proposed is significantly the better one, this is a case where nothing else will do and that whilst the window remains open for this opportunity, X should have the chance to try and achieve permanence by way of adoption.
18. Although the parents do not oppose this course, they understandably do not agree to it. I am satisfied, therefore, that in the circumstances it is appropriate that their consent to the making of a placement order be dispensed with for the welfare reasons that I have identified and I thus dispense with their consent. In so doing and in making a placement order, I direct that the report of Dr Tyler, that the reports of the children's guardian and any other documents that the parties invite me to consider which might include the NSPCC work suitably redacted be disclosed to any prospective adopter who comes forward in respect of X. I am going to direct Miss Moulder in drafting the order, to include a recital to the effect that if no placement is found or is in prospect by 15^th August 2014, the court expects that the Local Authority no later than 12^th September 2014 will file an application to revoke the placement order.
19. I want to repeat my particular thanks to the guardian for her entirely principled response, I want to indicate my particular thanks to the social worker in this case who I know has been faced with very considerable difficulties but has produced a very thoughtful and comprehensive piece of work that has enabled these proceedings to end the way that they do today and I have already mentioned the remarkable work that has been done by these new foster carers who have, no doubt, taken on far more than they anticipated when they first put themselves forward.
[Discussions re order follow]