England and Wales County Court (Family)

IN THE BRISTOL COUNTY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF LJ (CHILD)

		Bristol Civil Justice Centre
		6th March 2014

HHJ Wildblood QC :

1. Introduction - These are public law family proceedings in which Bristol City Council seeks care and placement orders in relation to LJ, who is eleven months old, having been born on [a date in] 2013. He has been living with foster carers under interim care orders since the day after his birth and his mother has been having contact with him once a week since October 2013 (before that, twice a week).
2. LJ's mother, M, is aged nearly 20 and opposes the Local Authority's applications; she seeks the rehabilitation of LJ to her care and contends that she and LJ should live together in a mother and baby foster placement before moving into the community. LJ's father, F is aged 22 and, although he knew about the hearing, took no part in it and was not represented. He does not put himself or any member of his family forward as a potential carer of LJ. The guardian (Ms Clutterbuck), the independent social worker (Ms Karen Singer) and the psychologist (Ms Gillian Evans) support the Local Authority. The Local Authority care plan at D17 proposes that F should not have any contact with LJ. It proposes that M should have indirect contact twice a year via the 'letterbox' system.
3. Although the mother has two older children who live separately with relatives of their different fathers, it is not possible to arrange for LJ to live with either of his half siblings (their carers do not wish to care for him).
4. This case arises in the context of contentions that the mother suffered an abusive upbringing that has left her isolated and insufficiently mature or stable to care for a child either now or in a timescale that meets LJ's needs. It is without doubt a very sad case.
5. At the Issues Resolution Hearing I clarified the options that were being placed before the court. The Local Authority and guardian propose that LJ should be placed for adoption with as yet unidentified adopters; given his age they do not envisage any difficulty in finding adopters for him. The mother proposes rehabilitation to her care after further residential support and assessment. No party has sought to argue that long term fostering presents itself as a sensible or viable option for LJ. No party suggests that there are any family members or other identified adults who could care for LJ if M is not able to do so. Thus the case has proceeded on the basis that there are only two options: placement for adoption or rehabilitation to the mother. I agree that those are the only two possibilities on the facts of this case.
6. It is also agreed that, at the heart of this case, is the jurisprudence of Re B [2013] UKSC 33 that LJ should not be deprived of the right to an upbringing with his mother unless, as a last resort, there are exceptional circumstances demonstrating that no other solution compatible with his welfare is available. Of the dicta in Re B the President said in Re B-S [2013] EWCA Civ 1146: 'The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215 [22]'.
7. M's other children - LJ is M's third child. Her other children, with whom she now has contact once a month, are:

i) Chd1, who is aged 3, having been born on [a date in] 2010. Her father is JB (aged 20). Chd1 lives with her paternal grandmother and her partner under special guardianship orders [KK30]. JB has been involved with illegal drugs and drinks excessively;

ii) Chd2, who is aged 2. Her father is BW (aged 20). BW had an upbringing where he was exposed to neglect and parental drug taking [C30]. Chd2 lives with her paternal great grandparents. On 15^th January 2014 M pleaded guilty to assaulting BW on 31^st July 2013 and is now subject to a conditional discharge for 18 months (the magistrates found that she was not guilty of a linked charge of arson).

8. Final hearing - This case has benefited from a very high degree of good representation by each of the advocates. However, these proceedings have not displayed any manifestations of expedition in the lead up to the final hearing. Further, the evidence that was available when this hearing started in February was plainly unsatisfactory. The Local Authority had conducted an interim parenting assessment and had been ordered to do a full parenting assessment. It did not carry out that assessment because of allegations that arose that the mother and F were still seeing each other, contrary to their contentions that they had separated in April. A fact finding hearing was listed in October but did not proceed after the Local Authority withdrew those allegations due to the lack of evidence to support them. Ms Karen Singer was then ordered to do a parenting assessment of the mother. Neither Ms Singer nor the social worker who filed evidence after the fact finding hearing absorbed the point made by the judge before whom the fact finding hearing was listed that the unproven and withdrawn allegations must be treated as being without factual substance. Evidence of the services that the Local Authority might provide if LJ were to be rehabilitated to the mother was only provided on the morning of the February 2014 hearing and during the social worker's initial evidence; a statement was filed after that hearing (C164) and so was available when the case resumed on 5^th March.
9. The hearing started before me on Monday 3^rd February 2014 by which time it was already well beyond the 26 week period in which it should have been resolved. I heard the evidence of Ms Singer, the evidence of the social worker (Ms White) and the evidence of the mother. The case was being argued on the basis that the Local Authority considered that the mother had not developed sufficient maturity since the removal from her of her two older children in 2012 for her to care for LJ. Part of the mother's case, skilfully presented, was that there had not been any adequate assessment of the mother and that the assessments that had taken place had been based on an oversight of the conclusions of the fact finding hearing.
10. Gaps in the February evidence - As those initial two days in February progressed I became increasingly dissatisfied with the quality of the evidence that I was hearing. I was also particularly dissatisfied with the omissions from, and misunderstandings within, the parenting assessments of Ms Singer and the social worker. This led to the adjournment of the case from the February hearing to the resumed hearing that started on 5^th March 2014.
11. There were the following particular features of the February hearing that were unsatisfactory:

i) The Local Authority relied heavily on psychological evidence that had been obtained in January 2012 from a Dr Radford. Dr Radford has now retired. There was no update of psychological material. If I had to summarise in a sentence the views then expressed by Dr Radford it would be that she suggested that the mother did not then have sufficient maturity to care for her two older children in the light of her own damaging past.

ii) The lack of information about the Freedom Programme that the mother had said that she was attending. That Programme is intended to assist women to educate themselves in how to avoid domestically violent relationships. This was therefore important, given the mother's previous pattern of associating with violent men by whom she had children. As matters transpired it was very fortunate that further evidence was sought on this issue as it was revealed that the mother had given untruthful evidence about her attendance.

iii) The absence of medical evidence that was available to deal with the mother's assertion that she missed a large number of contact sessions because she was depressed and deprived of sleep. She suggested that she had assistance from her GP at the time and that the GP could confirm this. Therefore evidence was to be obtained by the mother and her solicitor for the March hearing to support this;

iv) The lack of knowledge about whether a care leaver's package had been put in place in relation to the mother and how the mother had responded. Indeed, no one could tell me in February when the mother had been in care and what support had been offered to her under Part III of The Children Act 1989.

v) There was only limited evidence of the services that the Local Authority could provide to support the options for LJ.

12. By the time that the hearing resumed on 5^th March 2014 Ms Gillian Evans had carried out a fresh psychological assessment. In it she concluded at E37: 'On balance, sadly, I am of the view that whilst some improvements have been made I cannot recommend that M be considered as a carer for LJ'. In her report Ms Evans said that M appeared to have shown some greater maturity, has engaged in positive contact with LJ, appeared to have made better lifestyle choices and to be in a position where the prognosis for her to succeed in a residential unit 'would appear reasonably positive'.
13. However Ms Evans also recorded that she considered that M is particularly vulnerable because of her insecure adult attachment style, relative isolation and lack of effective support. She also questioned the mother's commitment to maintain the changes in her lifestyle and was concerned by the mother's apparent lack of attendance at the Freedom Programme. She said at E37: 'Significant concerns relate to the longer term and whether M is sufficiently mature and resilient enough to cope on her own, over time, with the stresses of parenting given her relative isolation / lack of an effective support network…she has not yet had the opportunity to demonstrate sustained change in terms of lifestyle over a longer period, which she needs to be able to do prior to being considered as a carer for LJ or any subsequent child'.
14. Having seen the evidence of Ms Evans the Local Authority and the guardian filed position statements in which they expressed their adherence to the recommendation that LJ should be placed for adoption.
15. By the time of the hearing in March it was revealed that M had not attended the Freedom Programme this year at all. M had implied in her discussions with Ms Evans that she had been attending but, on questioning by Ms Evans, had not been able to tell her where the programme meetings had been taking place (although M did know that the meetings were taking place on Wednesdays). When I asked in March what M's case was on this issue I was then told that M accepts that she has not attended the programme this year; she said that she had been to the programme venue on occasions but did not participate in the group. This is in marked contrast to what she said in oral and sworn evidence at the February hearing – then she had said that she had attended on three or four occasions since Christmas and expressed a commitment to the programme. It was accepted at the March hearing that M had not told the truth about this when giving evidence in February.
16. It was the revelation that the mother had not attended the Programme this year at all (quite rightly communicated to the court by Ms Flexman when she was informed of the position) that led to the mother leaving the court building on 5^th March in distress faced with the recognition that her untruthfulness was now known and the consequences that that recognition might have.
17. The mother returned to court on 6^th March (after I had issued a written order that she must do so) and I was then handed a note which M had signed and which read: 'I have not participated in the Freedom Programme since Christmas 2013. I have been to the venue a few occasions but felt unable to go in because of another girl who is there. When I did attend before Christmas I did find it helped me to unpick things and it made me realise things about JB, LJ and BW. If I moved out of the area I would want to carry on doing this type of work and go somewhere like the Meriton as well'.
18. No evidence was produced from the mother's GP for the March hearing. The procedure that was to be followed is set out in the order of 5^th February 2014 at B77. The solicitor for the mother was to obtain a letter from the GP dealing with this point. The solicitor, Ms Cummins, sent a letter of authority to the mother for the information to be provided. The mother says that she did not receive the draft letter of authority. Since I delivered this judgment in court, Ms Cummin has written to inform me that she sent the form of authority to the mother for completion and return on three separate occasions and spoke to the mother by telephone, requesting its return. Unfortunately, the signed authority was never received and accordingly it was not possible to seek or obtain the report. No further steps were taken, therefore, to obtain this information until I suggested that efforts might be made to obtain it during the hearing. However, by then it was too late and no party sought to suggest that the hearing should be adjourned to obtain it.
19. By the time of the March hearing a statement had been filed by Anna Lemke-Elms (C157) who was the mother's social worker when she was placed with Chd1 on 15^th December 2010. Ms Lemke-Elms says that M became a 'relevant care leaver' on her 18^th birthday (i.e. on 12^th March 2012) and that she and M met each other frequently over a period of 2 ½ years. I was told that it was not possible to discover from the Local Authority records the dates upon which the mother was in care (which, I said, was absurd). Ms Lemke concluded her statement in these terms: 'In the 2 ½ years I have worked with M her level of engagement has varied from weekly contacts to periods of non engagement. M has had a very difficult past 3 years with the on-going court cases in relation to her 3 children and also a succession of abusive relationships. It has been difficult to engage M in effective planning as she has been in the court process for the majority of the past 3 years or has been in abusive relationships, which also makes planning difficult. I have offered very practical support and also supported her through crisis periods including several moves. I believe the key to her development is gaining support around healthy relationships which can be offered through the Freedom Programme. I think it would be useful for M to engage in some form of education or training which I will again explore once we know the court outcome…I believe that M does have the capacity to parent effectively in the future but only once she has accessed effective support around abusive relationships and also accessed support around the loss of her children'.
20. As to the Local Authority services that would be available to support options, the social worker filed a statement which is at C164 and which sets out the Local Authority's position. In my opinion it is a well balanced, if somewhat belated, statement and sets out how rehabilitation would have to be arranged if the court decided to pursue it; this would involve placement in a mother and baby foster placement and then accommodation in a residential unit. The statement analyses the positives and negatives of adoption (C170). It ends with the conclusion that the Local Authority adheres to its care plan for adoption (C171).
21. Paternity - Shortly before the hearing began some doubt arose as to whether F is LJ's father or whether JB, the father of M's oldest child, is also the father of LJ. M asserted at the hearing that she was quite sure that F was LJ's father but, at the request of the Local Authority, I ordered that DNA tests should be carried out. On 7^th February 2014 a report was prepared by 'Anglia DNA' which excluded JB as a possible father of LJ, leaving F as the only candidate for paternity of LJ.
22. M – M lives in a city area. Her own childhood, in which she spent periods in care, was marred by emotional abuse and instability. She is now isolated from her family. Her mother, KH, has a gambling addiction and, when she last stayed with M, made a suicide attempt. Her father, WG (i.e. not her uncle, as was wrongly suggested by the social worker in her statement at C133) has a long standing drug addiction and was absent for much of M's childhood. M does not suggest that any member of her family could assist her with the care of LJ and no member of her family has been suggested as a substitute carer for him. She has a difficult relationship with her older sister R (aged 24), who, she says 'has a lot of problems' and was violent to her during her childhood [KK67]. She has a brother C (aged 23) who she does not see.
23. She is said to have blocked out some of the memories of her childhood and the view taken in 2012 by a psychologist and other professionals is that she was probably sexually abused as well (a suggestion that is insufficiently evidence based to be reliable). The psychologist, Dr Radford, suggested in 2012 that M tends to 'log out' and says that a potential explanation is that 'as a very young child, at times when life was traumatic and she was placed under severe stress she either disconnected from what was going on by dissociating from the event or experiencing episodes of derealisation in which she would log out from these experiences'.
24. She became pregnant with her first child, Chd1 at the age of 15 and, very shortly after that birth, she became pregnant with Chd2 at the age of 16 (giving birth at 17). Her relationships with the fathers were unstable and volatile.
25. M's final statement is at C148. In it she says that she ended her relationship with F in April 2013 and has not formed any new relationships since [C151]. She states that she would wish to enter a mother and baby placement with LJ and says at C152: 'I accept that in 2011/12 when I was placed in a mother and baby placement with my two older children this did break down. However, that is not to say that it was a wholly negative assessment. I remained in the placement for many months. In addition I would say that this was two years ago and I believe that things have changed since then'. She expresses her opposition to adoption, says that she is no longer taking medication for depression and, she said, has benefited from attending the Freedom Programme.
26. Previous proceedings - There were proceedings relating to Chd1 and Chd2 which ended in October 2012. On 15^th December 2010 the mother and Chd1 were placed in a mother and baby foster placement [KK4]. That arose after an allegation had been made that BW had shaken Chd1, although there was no medical evidence of damage to her [KK54]. Shortly after, on 26^th January 2011, M left the placement and 'absconded' with LJ. On 28^th January 2011 Chd1 returned to the foster placement and, on 24^th February 2011, M joined Chd1 there (and so the mother and baby placement was resumed) [KK39]. By this stage she was already pregnant with Chd2. Her relationship with BW was volatile and violent.
27. When Chd2 was born, M and the two girls all moved on 10^th November 2011 to another placement. That second placement broke down leading to interim care orders being made in relation to those two children. It was on 9^th January 2012 that M left the foster home and would not tell the social worker where she was [KK32 – i.e. the findings of DJ (MC) Cooper)]. M's basic care of the children was also noted to have deteriorated during this time [DJ Cooper's findings at KK32]. Both children were removed from the mother on 26^th January 2012 and, within a relatively short period, were living with their current family carers [KK14]. M was offered contact three times a week but did not attend consistently. As a result and pending the final hearing in October 2012, contact was reduced to once a week [KK40]. The final hearing took place six months before LJ was born and at a time when M was already pregnant with him.
28. It is within those proceedings that the psychologist, Dr Shirley Radford wrote a report on 30^th January 2012 [KK49] and an addendum report on 13^th April 2012 [KK85]. Dr Radford had seen M on 16^th January 2012. In those reports Dr Radford suggested that M did not have the maturity or emotional regulation to care for the children. She concluded that M did not show signs of mental illness or personality disorder [KK81] and she assessed M's full scale IQ at 80 (Ms Evans assessed it at 78 - E26). Dr Radford said as follows in her report at KK82 (i.e. written two years ago when M was aged 17) :

• 'In my opinion, M has a relatively simplistic understanding of the concerns of the Local Authority. In conversation she appeared to me to recognise that her past relationships have been violent and abusive and she was able to recognise and describe some of the ways in which she would change her behaviours in the future.

• I would have significant concerns about her ability to recognise and protect the children in terms of the issues of potentially sexually abusive experiences. She maintains that she has no recall of her own history in which comments in the case papers suggest that she was sexually abused in childhood.

• In discussion she found it very difficult to recognise the potential risks posed by some of the members of her family although she was able to describe that she would be worried if any of them took an unnatural interest in the children and wanted to baby-sit them all the time or saw them as 'special' in some way.

• I do not feel that she would fully recognise the risk issues to her children in relation to domestic violence and exposure to situations of potential sexual abuse. She might gain further insight into the issues of domestic violence and the risks to her children from some intervention in terms of sessions at The Meriton.

• However, it is difficult to envisage how she could be helped to recognise situations which could place her children at risk of being sexually abused as she is unable to remember her own abuse and the risk is that she dissociates when presented with situations which remind her of her own abuse experiences'.

• ...There is some evidence that M has a basic understanding of potential risks to the children in terms of witnessing domestic violence…However, this is at a very naïve level and…I would recommend that she engages in some intervention related to domestic violence and sexually abusive behaviours in order to try to help her to develop a better understanding of these issues..

• …In my opinion, the issue in terms of her parenting ability is less likely to be one of providing adequate care to the children, rather her ability to consistently meet their emotional needs and to protect them from harm. I think that she is a very vulnerable young woman who is likely to seek to have her own emotional needs met as a matter of priority. It may be that she will mature over the next few years but this may be outside of the timescale of the children.

• …In my opinion there is no specific therapeutic psychological intervention that I would recommend for M at present due to her denial of having any memory of her traumatic past…However…I think that she would benefit from some sessions to address issues of domestic violence in relationships and to address risk issues in terms of sexually abusive behaviours'.

29. F - F has one other child, MA (who is aged 5). Her mother is MG. The relationship between F and MG was volatile, influenced by illegal drugs and violent [K54]. On 23^rd May 2013 HHJ Rutherford made a special guardianship order in relation to her.
30. F had a very difficult childhood in which he was exposed by his father to violence, neglect and drugs. He had little contact with his mother. He is regarded to be a volatile and unstable man. A psychological report at K94 states: 'Both MG and F have a childhood experience of neglectful and chaotic parenting and anxious / ambivalent attachment relationships…Whilst both parents have histories of poor emotional regulation and aggressive behaviour, F also has significant issues with loss / bereavement. He appears to have a particularly poor ability to regulate his emotions and self-soothe'.
31. M said that she has known F for 5 or 6 years but started going out with them in March 2012. She said that she did not know that he had a propensity for violence at the time. In evidence she described him as a distraught, violent boy but said that she only became aware of his propensity for violence on one occasion when he locked her in the house although, she said, he was not violent to her then but did shout. She said that she never witnessed him being violent. I did not believe her evidence on this point. In the light of everything that is said about him in these proceedings and in the proceedings relating to Chd2 she must have known full well what he was like. M herself regards him as so destructive and hostile that, if LJ returns to her, she says that she would move to a new location in order to avoid him.
32. I note that Ms Evans says at E33 that 'M continues to be fearful of F particularly in relation to him seeking to disrupt / remove LJ from his placement, particularly should she and LJ be placed together. M's fear being palpable'. Ms Evans said in evidence that M's body language communicated that fear when she met the mother. I accept that evidence (which was not in dispute).
33. LJ – LJ is a healthy child who has become attached to the foster carers with whom he has lived since the day after his birth. It is very unfortunate that it has taken this amount of time for these proceedings to come before the court for resolution.
34. Initially M was having supervised contact twice a week for one hour each session. The Local Authority says [C137] that, initially, these contact visits were positive. However, by October 2013 her attendance at contact became less consistent and it became apparent that she was suffering from sleep deprivation and depression. Therefore it was agreed that contact would be reduced to once a week with each session lasting for two hours; that arrangement also meant that it was not necessary for M to engage twice each week in the difficult transport arrangements by which contact took place. On the second day of the hearing the mother did not arrive until 11.15 a.m. having overslept (and was also late back from lunch on the first day); she said that she had been 'up all night thinking about court'. She did not attend contact on 3^rd March because, she said, she overslept. I accept that M was depressed last autumn and that this is part of the reason she did not attend contact. However, I also have an abundance of evidence that the mother lacks organisational fortitude and 'logs out' when faced with difficulties; I am quite sure that those tendencies also played a significant part in why she missed contact.
35. The schedule of attendance at contact from the papers is as follows:

14.10.2013	Contact did not occur	N
17.10.2013	Contact did not occur.	N
21.10.2013	Contact did occur.	Y
04.11.2013	Contact did not occur.	N
11.11.2013	Contact did not occur.	N
18.11.2013	Contact did occur.	Y
25.11.2013	Contact did not occur.	N
09.12.2013	Contact did not occur.	N
16.12.2013	Contact did occur.	Y
23.12.2013	Contact did not occur.	N
06.01.2013	Contact did occur.	Y
13.01.2013	Contact did occur.	Y
20.01.2013	Contact did occur	Y
27.01.2013	Contact did not occur (mother at criminal court)	N

36. Since 27^th January, M has attended 4 of the weekly contact sessions but not the contact that was due to take place on Monday 3^rd March. I was told that the mother intended to go on 3^rd March but her alarm did not go off and she missed the 9 a.m. phone call that she had to make to confirm that contact was to happen. She did not ring to explain this to anyone.
37. The Local Authority – The social worker, Ms White, has plainly found this a difficult case. She said that she hears repeated and adverse suggestions about M from within the local community. Like the independent social worker, Ms White plainly found it difficult to adjust to the withdrawal of a fact finding hearing; her final statement still referred to the original allegations that had been withdrawn and her position was that 'due to the high level and constant reporting throughout these proceedings it has been very difficult to dismiss or not question the allegations / concerns put before me. The fact that M's initial response to these allegations / concerns has been limited and she has produced very flimsy evidence through her statement to substantiate people are out to cause problems for her, has left many questions unanswered' [C135]. At C134 she said: 'M's behaviour / presentation with me contradicts reporting from mother professional people involved in this case where M has presented volatile to others and remained in a relationship with F, colluding with him in respect of LJ'.
38. Her opinion that M and F had colluded together to hide a continuing relationship and communication was the very issue that lay behind the fact finding hearing. That allegation was withdrawn and, after I had asked at the February hearing and given opportunity for instructions to be taken, I was told that no evidence would be presented to suggest a continuation of any affectionate relationship between them after that fact finding hearing. There is now accepted evidence that they have continued to encounter each other (in particular in a public house) where hostile exchanges have apparently occurred (C174). It is also accepted that, as a result of F's emotional chaos there would be a real risk that he would undermine M's care of LJ if he became aware that LJ had returned to her care in a location of which he was aware.
39. Threshold – This is now agreed on the basis of the document at A31. It is based on the removal of Chd2 and Chd1, the assessment of Dr Radford, the failure of the mother to engage with professionals during the pregnancy, the removal of Chd2 from F and the threats that F has made. That is plainly sufficient for the provisions of section 31(2) to be fulfilled and I conclude that the criteria are satisfied on that basis.
40. These proceedings - These proceedings began on the day after the birth of LJ when the Local Authority made an application for an emergency protection order. At that time LJ was still at the hospital. The Local Authority application at B9 sets out the reasons why it thought it necessary to issue these proceedings. It states:

• 'The mother's previous children….were both removed from the mother's care due to neglect and physical abuse from the mother's former partners. The father's daughter MD is currently the subject of ongoing care proceedings due to concerns of domestic violence and emotional abuse.

• Professionals have reported hearing the father being verbally abusive to the mother. The father struggles to manage his emotions and is often threatening and abusive. In September 2012 he abducted his daughter from the care of a foster carer. On 4^th April 2013 the father made a threat to his GP that he would remove Chd2 from Local Authority care.

• Despite efforts to work with the parents throughout the mother's pregnancy they have both failed to engage and have stated that they will not work with Children and Young People's Services. On 23^rd January 2013 the parents met the social work team. At the end of the meeting the father stated he had nothing to lose and would get a passport for the baby.

• The father had to be removed from the hospital by security on 13^th April 2013 when the mother went into labour due to him forcing his way on to the ward. The father has been forceful on the phone to the hospital staff since LJ Junior was born. He has informed the social worker that he will 'take everyone out' at court when he was informed the Local Authority would be making an urgent application to the court.

• The Local Authority is concerned that the parents will try and remove the child from hospital and avoid engagement with professionals'.

41. The case was transferred to the County Court by HHJ Marston (sitting as a District Judge of the Magistrates Court) on the day of issue (15^th April 2013) and an interim care order was made. Interim care orders have been in place every since. On 17^th April HHJ Marston gave directions leading to a case management conference ('CMC') on 31^st May 2013.
42. Ms White, the social worker, carried out an interim parenting assessment shortly before that hearing; it was concluded on 28^th May 2013. She wrote: 'Historic indications are that M does not have the capacity to change within LJ's timescales and the outstanding intensive therapy necessary for M to have any recovery from her own abusive childhood has no end date. Therefore the Local Authority are not in a position to support a mother and baby foster placement / unit and feel it is in LJ's best interest to remain in his current placement'. After this, Ms White said in evidence, she did two or three more 'sessions' with M and then the Local Authority decided that it would not assess the mother further as a result of its suspicions that the mother and F were continuing in their relationship or, at least, were communicating with each other still.
43. Ms White said in evidence that, by the end of the interim assessment, the position of the Local Authority was that it would like to carry out further assessments as to whether the mother and baby should move together to a joint foster placement.
44. At the case management hearing on 31^st May 2013 [B34] HHJ Barclay joined F and made an order which provided that the Local Authority's final parenting assessment of mother was 'to be filed and served by 4 p.m. on the 22^nd August 2013'. That order was made after the court was told by the Local Authority representative that there was sufficient merit in the interim report for a full parenting assessment of the mother to be needed.
45. Viability assessments for residual assessments of the mother were carried out by Crown House in Malvern (A12) and by Dudley Lodge (A14). Both organisations concluded that M was not suited to a residential assessment with them at that time. Crown House stated at A13 that M needed to complete domestic violence work, remain separated from F, attend her contacts and continue to engage well with professionals. Crown House stated that, if those requirements were met, they would re-consider her for a residential assessment. Mrs Clements of Crown House stated: 'I believe that it is critically important that M is able to evidence a definitive separation from F'.
46. Mr Jim Evans of Dudley House wrote that 'it is my professional opinion that the family would be best placed together with a supportive foster placement for 12 months' [A14]. Ms White said in evidence that she had not seen these reports before giving evidence but understood that the viability assessments had been 'negative'.
47. On 10^th July 2013 there was an advocates' meeting in which the Local Authority said it would no longer assess the mother. On 13^th August 2013 the case came before HHJ Barclay and he recorded on the face of the order that the Local Authority had indicated that 'it does not intend to file a further parenting assessment of mother as ordered at paragraph 18 of the order of 31^st May 2013 due to the belief that the mother has resumed a relationship with F, a belief that will be tested at the fact finding hearing on 3^rd and 4^th of September 2013'. The hearing on 3^rd and 4^th September was adjourned. The Local Authority did not complete a parenting assessment after this.
48. On 16^th July 2013, the social worker wrote a statement in which she said at C68: 'M's history, patterns of behaviour and violent controlling relationships continue to impact on LJ's life and in fact her older children, leaving them at high risk of harm and emotional neglect. The fact that M continues to remain or reform such relationships leads the Local Authority to conclude that no further assessment of M' is necessary at this time based on the evidence laid out in this report. Because of this the Local Authority's position is that it could not support a Mother and baby foster placement for the reasons set out above'.
49. On 17^th September 2013 it was directed that a hearing on 16^th and 17^th October was to be a fact finding hearing to deal with the allegations of the Local Authority that M and F were still seeing each other. The schedule of allegations is at C103. It included a poorly pleaded allegation that 'M was / is in regular contact with F and may be / have commenced another relationship with him, during which time she informed him of the dates and times of contact sessions between mother and LJ, contrary to what had been agreed with the Local Authority'.
50. On 16^th October 2013 the allegations that the Local Authority were pursuing were withdrawn. The order records on its face that the withdrawal was 'due to there being insufficient evidence to meet the standard of proof' [B53]. Arrangements were made for another directions hearing to take place on 22^nd October 2013.
51. On 22^nd October 2013, HHJ Rutherford DL gave directions which included provision for Ms Karen Singer to file a parenting assessment of the mother. The case was listed for IRH and final hearing before HHJ Rutherford. Due to listing difficulties (and the need for expedition in a very delayed case) the matter has been listed before me.
52. On 14^th December 2013, Ms Singer filed her report. In it Ms Singer concludes that she is 'not able to recommend that M has care of her son LJ for the following reasons:

• …M remains a vulnerable woman…

• M is making efforts to change her environment but it is not known whether this will be achieved. Her current home, especially its isolation and M's unhappiness living there, would cause concern and lead to her continuing to seek links with others as a means of fulfilling a life that she is able to tolerate and enjoy. The isolation, if with LJ, would also be of concern if M became ill and in view of her asthma, and how that would affect her ability to cope….

• The history of her relationship with the three fathers of her children is one of turmoil and periodic aggression….

• M is asking for a placement in a mother and baby unit but i) past experiences in two such placements were not successful, ii) the wider issues of her life remain unresolved, with no new significant changes that could justify a renewed placement in such a unit being sought, iii) I was unable to see any unit literature that would fit the circumstances of the present situation; iv) LJ would be unsettled by such a move and would be unsettled again if the placement did not succeed given the high likelihood of that occurring.

• …Sadly similar issues remain over the present proceedings as previously (i.e. in the proceedings relating to Chd1 and Chd2) in terms of risks in relationships, changing levels of co-operation, M's own emotional needs and at times loss of emotional control, and LJ would therefore be as equally at risk as the previous children.

• M's contact with LJ has been variable in terms of attendance, including during the weeks of my assessment. She had recently requested twice a week contact be reduced to once a week and this was agreed and the time increased during contact. On a practical level the two journeys a week were tiring for her and the reduction limited that'.

53. Ms Singer said that 'not all aspects of the situation are negative however'. She said that M was seen to be capable of undertaking satisfactory physical care of LJ and to recognise some aspects of his emotional needs and development. She recorded that M has begun the 'Freedom Programme' and expresses interest in it. She said that M 'can relate well and be pleasant in her communication' and that she has maintained contact with her other children.
54. Ms Singer concluded at C129 as follows:

i) I believe M has the ability to be a good parent in the future, if she focuses her attention on continuing the current course relating to domestic abuse, continues to meet and co-operate with her after care worker and the social worker when required; and if she follows up and fully engages with any identified therapy or counselling when that is identified and made available;

ii) This process will take more time that LJ's timescale…

iii) LJ's father, F, also has potential in the longer term to act appropriately if he undertakes skilled therapeutic or counselling programs to resolve the pain he continues to feel and that I believe stems from past trauma and that too will take considerable time.

iv) I am not able to name resources that would assist M care for LJ…However, if LJ is returned to her care, I believe the support needed is for a responsible adult to be present throughout…there is no professional system that provides this beyond those few units where a limited time scale of three months exists; and there is no family member in M's extended family, given the existence of widespread concerns'.

55. On 6^th January 2014 the Local Authority social worker, Louise White filed her final statement in which she recommended that care and placement orders should be made [C147].
56. On 25^th January 2014 the guardian, Ms Clutterbuck, filed her report. On the basis that F was the father, she recommended that care and placement orders should be made. She saw little change in M's behaviour since the older two children left her care. She recorded that M has not attended contact consistently, appears socially isolated and lacking in commitment. She stated that M had not worked honestly and openly with the Local Authority. She considered that there is extensive information about the mother's parenting capacity and that M would not be able to care for LJ adequately. She filed a position statement prior to the hearing in March in which she stated that she adhered to her recommendations.
57. I heard the IRH which had been listed on Friday 31^st January 2014, the working day before the final hearing was due to start. No progress could be made to resolving the case and so the case proceeded for a final hearing commencing on Monday 3^rd February 2014.
58. During the course of this hearing I have heard evidence from the following:

i) Ms Karen Singer, the independent social worker. She gave evidence in February.

ii) Ms White, the Local Authority social worker. She also gave evidence in February.

iii) M, the mother. She gave evidence in February.

iv) Ms Gillian Evans – she gave evidence at the hearing in March.

v) Ms Clutterbuck – the guardian.

59. Oral evidence – Ms Singer - She adhered to the recommendations expressed in her report. She said that she had not seen anything that suggested that M has dealt with any of the damaging aspects of her own background. She said that the mother's current circumstances are simply not suited to the care of a child; her accommodation is poor, she has no support and she is a vulnerable young woman.
60. Ms Singer plainly had difficulty with the withdrawal of the allegations at the fact finding hearing and understanding the binary system upon which the court operates. She was plainly troubled in her evidence about the uncertainty that she thought remained as to whether the mother had continued in affectionate communication with F. Once the binary system had been explained to her and she had been asked to set aside her concerns about any continuing relationship with F, she said that she would still remain very concerned about the mother caring for LJ. She thought that there was a significant risk that the mother and F might later resume their relationship and she also stressed her view that there has been a lack of emotional development of the mother since the time of the report of Dr Radford.
61. As to the first point (the risk of resumption of the relationship) it was put to Ms Singer that the mother had sought and obtained a non molestation order against F on 17^th April 2013 and that there was no evidence to support the suggested risk of a resumption of the relationship. Ms Singer remained concern about the volatility of F and thought that even a legal order might not restrain him from interfering with the mother's care of LJ if he were to be returned to her care. On what I have heard I think that there is very little chance of the mother and F getting back together. I do think that there is a strong likelihood that he would be as destructive as M herself suggests if LJ were to be returned to her.
62. As to the second point (the lack of emotional development since the report of Dr Radford), she did not accept that the mother had developed in a way that would allow her to care for LJ. She did not accept that the mother's development is demonstrated by the absence of a relationship with F since April. It was put to her that the absence of a relationship shows a development in her maturity as her past involvement in abusive relationships was a very strong feature of her background. Ms Singer did not accept that this signalled the end of M's vulnerability or her past tendency to form damaging relationships. The absence of relationships is also a feature of the mother's isolation.
63. Ms Singer also did not accept that M's suggested involvement in the Freedom Programme was a sufficient signal of progress. I heard a lot of speculative evidence about the mother's participation in this Programme; nobody had approached those running the Programme to gather their views. It is then that I required them to do so and had difficulty understanding why this had not been done. I have already stated the result of the enquiry.
64. Ms Singer accepted that M is making weekly bids for alternative accommodation but foresaw difficulties in achieving a transfer. The housing department regards her current accommodation as sufficient. She thought that the mother's asthma was a factor that should be taken into account. Ms Singer said: 'if someone is feeling depressed, is isolated, has breathing difficulties, is feeling troubled with the history there has been, it is a matter of concern'.
65. Ms Singer said that she thought that a foster placement for mother and LJ would be highly likely to break down and would be very unsettling for LJ. It would involve removing him from the environment in which he is now settled and putting him into a placement in which he would be highly unlikely to remain.
66. As to contact, Ms Singer did not think that it was understandable that the mother missed contact. She did not think that the depression from which the mother was suffering at the time explained this. It was put to her that the contact notes suggest that she is a mother who is attuned to her child's needs even when LJ was fractious. She said that she accepted that this was the position 'during contact'.
67. She said that the key to the mother caring for LJ would be whether she had sufficient support. She said that her fundamental worry is that the mother would turn to unsuitable partners and unsuitable family members, as she has done in the past. She said that her thinking began on the basis that of Dr Radford's report and the opinion that it would take years for the mother to have the emotional maturity to care for a child. She said that she did not see any evidence of the mother having matured beyond the level identified by Dr Radford in a way that would allow her to care for LJ.
68. Overall, Ms Singer's assessment and evidence was entirely negative in relation to any prospect of M caring for LJ. She closed down every issue that was put to her on behalf of M.
69. Ms White – She has been the allocated social worker throughout these proceedings. She said that F would not engage with the Local Authority at all to begin with. When he did attend it was necessary to have security. He was highly charged and emotionally distressed.
70. She said that she remains concerned about the people with whom M may associate given her previous partners and family connections. She said that the contact is generally very good. M is intuitive and playful with LJ and they 'interact very well' when together. Ms White thought that the main concern is the emotional instability and disconnection that M can show. She gave an example of the contact in August when LJ was teething and M did not quieten him.
71. Ms White did not think that M would have insight into LJ's distress if he needed comforting. Ms White then said that this aspect of concern (the disconnection between mother and child during contact) is improving, however. Each of the contact records since 21^st October 2013 records the mother as behaving with warmth and appropriate affection to LJ.
72. Ms White said that, initially, M responded very well to the parenting work that she did with her. But, Ms White said, if she tried to touch on any issues with depth, M tended not to engage. She found that it was very difficult to talk to M about her past because she dissociates with her background (as Dr Radford observed). She did not consider that M acts honestly if important events occurred; I accept that is so (e.g. on the basis of her evidence about the Freedom Programme).
73. Ms White said that she does hold out hope for the mother as a parent in the long term future. However, until she has addressed the difficulties of her past she cannot parent adequately. The fact that M has not been in a relationship for ten months (save possibly for a week with a man called J) does make a difference she said, but would not be sufficient for the Local Authority to change its mind.
74. She said that it is the mother's emotional instability and vulnerability that are the main reasons why the Local Authority would not support her as a carer of LJ. If rehabilitation were to be attempted Ms White thought that, initially M would care for him adequately but that she would not be able to sustain this.
75. Ms White said that she noted a change in M when she appeared depressed in October and advised her to go to see her GP. Ms White accepted that the GP found her to be depressed and to have low iron levels. She said that she accepted that the mother's ill-health had an impact on contact. Ms White said that it was in November that she received information from a colleague suggesting that the mother was associating with an unsuitable man called J P; M accepts that she had a relationship with Mr P for a week but did not continue with him because he was a 'player' who was not prepared to commit. Ms White surmised that this may also have had an impact on her attendance at contact. M denies that she had a relationship with another man, called RC, who she described as 'a dirty crack head'. There is no evidence to support any suggestion of a relationship with that man.
76. Ms White said that she thinks that there is a residual risk of unstable relationships. She based that on the history of her relationships with JB, BW and F and also the mother's relationship with Mr P. Ms White said that the mother still 'hangs around' with the same people.
77. If LJ did return to the mother, she would need to attend the Freedom Programme. Available to her also would be parenting education. She said that, if a mother and baby foster placement was considered, it would have to be out of the city in which the mother lives.
78. Ms White said that she thinks that there is no solution other than adoption for LJ. She said that LJ is the mother's third child. She does not have the maturity or emotional ability to care for him adequately.
79. M – She said that she has seen JB about three times since the case started in April. She saw him in court and bumped into him twice in a pub, she said. She said that she has bumped into BW in the street a few times; on one occasion she ended up smacking him and as a result was charged with assault.
80. Since last April, she has had no involvement with F, she said. She said that she speaks to his mother on the phone and has bumped into his sister in the street. She said that she does not know where F is living.
81. She said that she would not allow her mother to stay with her after the events when she made a suicide attempt. She said that she has very little contact with her mother (who, she said, is working all the time with people who have learning difficulties). M said that she looks to her friends for support; she spends much of her time with a particular female friend, LE, who is a mother who cares for her own children.
82. In her evidence in February she said that she has attended the Freedom Programme on three occasions before Christmas and three or four occasions since. She said that the records of Freedom Programme may show that she has only attended three times in total but that this is explained by the registration process. She said that she has learnt a great deal from her attendance there and would like to do more parenting work. She did not think that counselling would be of benefit to her because, she said, she does not remember the bad things about her childhood.
83. She said that she would be willing to go to a placement out of her home city. F is a risk, but a placement on the other side of the city would be sufficiently safe she thought.
84. When the case resumed I stated that I thought that there were issues that the mother needed to address in formal evidence. However, despite adjournments and arrangements that were offered in court, the mother's distress was so great that she was unable to give further evidence and, after asking for assistance from the bar, I was told that it was agreed by everyone that there should be no further attempt at gaining oral evidence from her. The main topics that would have been covered were these:

i) Why had she not told the truth abut the Freedom Programme and was there any validity in her suggested reasons for not attending?

ii) What had occurred between herself and F in the public house (C175) and afterwards. What level of threats was he making to her by Facebook, text and other means? Ms Flexman told me that it is accepted that F is very hostile to M to the extent that, if she did care for LJ, she would have to move from this area and would have to keep LJ protected from him.

iii) What had happened about the GP notes and why had the mother not taken the initiative in getting those notes knowing of the order that I made in February?

iv) What was her involvement when F was threatening to abduct Chd2 to Ireland (the guardian wished to hear evidence on this her solicitor having not cross examined the mother at the February hearing);

v) What did occur between the mother and Mr J P?

85. Ms Evans - She thought that the mother's insecure attachment style would impact upon her parenting. It is likely that that impact would be reflected in difficulties with showing warmth and emotional continuity both as a parent and an adult. She thought that this is reflected in the mother's history both as an adult and as a child. M has sought to deal with this by isolating herself from her family with the result that she is very isolated and has not been able to build up a network of support and has become dependent on one friendship with 'LE', who is aged 20. This may change in time but change has not yet been effected.
86. Ms Evans said that, in her work with M, M seemed to be searching for a mother figure – she said that she saw how the mother even turned to the contact supervisor for emotional support. Ms Evans tied this in with her opinion that there was a reasonably positive prognosis that the mother would succeed in a residential setting because she might well find the sort of emotional support that she seeks; she also tied it in with her opinion that the mother would not be able to care for LJ adequately in the community. She did not think that a mother and baby foster placement could offer her the type of support in the community or with the enduring mother figure that M sought.
87. She recognised that, in the right placement, educational and supportive facilities (such as parenting groups) could be made available to help the mother develop supportive connections. However, she did not see sufficient commitment to change for her to consider that M could make the necessary changes within the timescale of LJ. Further, it would require her to be open and honest with professionals and that has not been a feature of the past.
88. The guardian - She adhered to her recommendation that care and placement orders should be made. She said that there is no other possible outcome that would be consistent with LJ's welfare. Her recommendation is not a matter of fine balance but represents the only solution that could be achieved in LJ's interests. She had some misgivings about whether the mother would be able to cope in a mother and baby foster placement (bearing in mind the difficulties that arose with the two older children when this was tried). However, she did not challenge Ms Evans view and said that such a placement might succeed. She felt that the mother would be very unlikely to be able to care for LJ in the community at the end of such a mother and baby foster placement.
89. Welfare considerations – I now turn to the legal considerations relating to welfare.
90. Where, on applications for care orders such as this, the threshold criteria are fulfilled in relation to any given child (as is the case here), it is necessary to consider the provisions of Article 8 of the European Convention on Human Rights and section 1 of the Children Act 1989 when deciding whether to make the care order sought. Where there is an application for a placement order before the court the court must conduct a global, holistic approach to welfare issues weighing up the various available options before it. As part of that holistic approach the court must conduct the welfare analysis in relation to the placement application by considering the terms of section 52 (1)(b) and section 1 of the Adoption and Child Act 2002. The welfare checklist in the 1989 Act is not the same as the checklist in the 2002 Act.
91. In Re G (A Child) [2013] EWCA Civ 965, paras 49-50 MacFarlane LJ said: "In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option…The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."
92. The Court of Appeal has given guidance about the importance of applying the statutory factors in the 1989 and 2002 Acts. The guidance is to be found, for instance, in the case of EH v Greenwich [2010] EWCA Civ 344. I set out in full the relevant passage from the judgment of the late Baron J:

61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1 (3) undermines his conclusions and his orders.

The Judge did not mention Article 8 of the ECHR. The terms of that Article provide that[ Baron J then set out Article 8 which I will set out below]

67. In the case of Re P [2008] EWCA Civ 535 Wall LJ stated: -There is, perhaps, no more important or far-reaching decision for a child than to be adopted by strangers" …"Judges approaching the question of dispensation under the section must, it seems to us, ask themselves the question to which section 52 (1) (b) of the 2002 Act gives rise, and answer it by reference to section 1 of the same Act, and in particular by a careful consideration of all matters identified in section 1(4)…..

"…the best guidance which in our judgment this court can give is to advise Judges to apply the statutory language with care to the facts of the particular case. The message is no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that."

68. The precise terms of the section which provides [the learned Judge then set out the provisions of section 1(4) of the Act, which I cite in full later];

69. The judge should have turned his mind to each of these provisions and not truncated his considerations as set out above. By so doing he specifically failed to address these children's particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering'.

93. Compliant with that case, I cite Article 8 of the European Convention on Human Rights provides. It states that: '1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …for the protection of health or morals, or for the protection of the rights and freedoms of others.'
94. Care orders amount to a very significant invasion of the rights encapsulated within Article 8(1). Placement orders amount to an even more significant invasion of that right than care orders. For such orders to be justified they must satisfy the provisions of Article 8(2) and therefore must be: a) in accordance with the law (here the Convention compliant Children Act 1989); b) necessary for the protection of the rights and freedoms (i.e. welfare) of others (i.e. the child) and c) proportionate. There is no conflict between Article 8 and Section 1 of the 1989 Act – Dawson v Wearmouth [1999] 2 AC 308 and Payne v Payne [2001] 1 FCR 425.
95. The determination of whether the threshold criteria are fulfilled involves considering the position at the time that protective measures were taken (here, when the proceedings started). By contrast, welfare issues must be based on the totality of information available to the court and, unlike threshold issues, it is necessary to conduct a contemporary evaluation of what is best for the child concerned.
96. Thus, in making welfare decisions I have to apply section 1 (1) of the Children Act 1989 in relation to the care application and section 1(2) of The Adoption and Children Act 2002 in relation to the placement application as well as section 52(1) (b).
97. By section 1(1) of the 1989 Act the welfare of LJ is the court's paramount consideration.
98. Section 1(3) of the Act contains the welfare checklist. It provides that, in making welfare decisions in a case such as this, a court must have regard in particular to —

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of her age and understanding);

(b) her physical, emotional and educational needs;

(c) the likely effect on her of any change in her circumstances;

(d) her age, sex, background and any characteristics of hers which the court considers relevant;

(e) any harm which she has suffered or is at risk of suffering;

(f) how capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs;

(g) The range of powers available to the court under the Act.

99. The 2002 Act – Children may not be placed for adoption under placement orders without the consent of the parents unless "the welfare of the child requires the consent to be dispensed with" (section 52(1) (b) Adoption and Children Act 2002). The core statutory provisions in relation to placement orders are therefore sections 52 and 1 for the purposes of this judgment (although there are of course many other provisions in the Act relating to such orders).
100. The case of Re P (children) (adoption: parental consent) [2008] EWCA Civ 535, [2008] 2FCR 185 provides useful guidance in relation to applications for placement orders. The main and relevant principles for these purposes are set out in paragraphs 119 to 154 of the judgment of Wall LJ. Those principles are summarised in the case of EH v Greenwich [2010] EWCA Civ 344. I wish to mention the following three points that arise from Re P (although I have considered the case as a whole):

i) In considering the provisions of section 52 I must consider section 1(4) of the 2002 Act (as explained in EH v Greenwich);

ii) The word 'requires' in section 52 is 'plainly chosen as best conveying the essence of the Strasbourg jurisprudence'. That is, it implies an imperative rather than something that is merely optional or desirable;

iii) Section 1(4) of the 2002 Act is not the same as section 1(3) of the 1989 Act. The welfare checklists are different in several important respects, especially s 1(4)(c) and (f). The court should therefore work through section 1(4) of the 2002 Act when considering whether to make a placement order.

101. Ryder LJ summarised the position in the case of Re R [2013] EWCA Civ 1018: 'So far as section 52 of the 2002 Act is concerned, the judge had to be satisfied that the welfare of each of the children required their parents' consent to be dispensed with. In other words, their welfare necessitates adoption and nothing else short of that will do. That formulation is derived from the terms of section 52 as explained by this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 CA at paragraphs 113 to 119 inclusive and, most recently as reiterated by the Supreme Court In the matter of B (A Child) [2013] UKSC 33'.
102. The relevant parts of Section 1 of the 2002 Act provide as follows (I have not included ss 5):

(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.

(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.

(4) The court or adoption agency must have regard to the following matters (among others)—

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout her life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

(5) …

(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.

(8) For the purposes of this section—

(a) references to relationships are not confined to legal relationships,

(b) references to a relative, in relation to a child, include the child's mother and father.

103. It is of fundamental importance that there is discipline in the approach to welfare issues in care and placement proceedings. The court is not a court of social engineering. The court does not decide welfare issues by considering whether, on an individual judge's analysis, a child might be considered to be 'better off' in care or adoption. Thus the court must not approach a case such as this by asking whether, on balance, a given child would be better off with adopters or with a parent. The dicta that I have already set out from Re B-S (and which have their basis in the judgments of Lady Hale, Lord Wilson and Lord Neuberger in Re B [2013] UKSC 33) must be applied. For myself I find the passages from the judgment of Lord Neuberger in paragraphs 77 and 78 of particular assistance. They include the following at paragraph 77: 'It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests'.
104. Although care proceedings are quasi inquisitorial (see Re W [2013] EWCA Civ 1227), it is for the Local Authority to justify its applications and to substantiate its proposed care measures on evidence – P, C and S v United Kingdom [2002] 2 FLR 631.
105. Fostering / adoption – Although there is no suggestion that long fostering presents itself as an option for LJ, I want to reinforce this by recording the words of Black LJ in the case of Re V [2013] EWCA Civ 913 where she said:

• [95] My difficulty with that is that I do not think that fostering and adoption can, in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue.

• [96]. With that caveat, I make the following observations:

i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.

ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.

iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. 

iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).

106. Placement with the mother – positives - Consistent with the above principles of law the best place for LJ to live is with his mother if this can possibly be achieved in a way that is consistent with his welfare. His mother loves him and wants to care for him. He would maintain his natural identity and would grow up as a member of his natural family. Thus he would be in his natural environment. He might be able to develop a relationship with his half siblings Chd1 and Chd2. If F matures it might be possible in later life for LJ to know his father; he would at least be able to form his own views of his father based on information that M would be able to provide to him.
107. Adoption – Of course adoption would mean that LJ would find a new loving home with people who had chosen to offer a young child the opportunity of a carefully selected family and home environment. Adoption offers a child security and stability which other kinds of care measure, such as fostering, do not. Through deliberate and heartfelt choice adopters offer themselves as carers for children. It is highly likely that there would be no difficulty in finding LJ an adoptive placement if decisions are made now. Developmentally he is still at an age where he could integrate emotionally and psychologically within an adoptive family.
108. Notwithstanding those positive aspects of adoption they do not in any way invade the principles of law that I have stated and the primacy of natural placement where possible.
109. Core reasoning – why placement with the mother is not possible. I list the following core reasons why placement of LJ with his mother is not possible in a way that is consistent with his welfare:

i) Past and present psychological assessment suggests that M would not be able to care for LJ adequately. Those assessments are sound and solid. I was very impressed with the evidence of Ms Evans and accept it.

ii) Social work and guardian assessment is to the same effect. The social work assessments of Ms White and Ms Singer have been affected by the wrong approach to the fact finding issues. However, that heavy qualification does not affect the guardian's very firm recommendations. Welfare issues are for me alone to decide. However, I regard the guardian's analysis to be entirely correct and properly researched. She gave evidence that was kind, thorough and professional.

iii) Attempts for the mother to care for her two older children were lengthy, detailed and highly supportive. Every effort was made to keep those two children with the mother. Those efforts failed in 2012, the year before LJ's birth. It is highly likely that the same would occur with LJ if he were to be placed with his mother.

iv) The mother remains isolated and vulnerable. She shows only some limited signs of maturation. She appears to have responded to the difficulties of her past by isolating herself further both from professionals and her other social connections (save for her one friend, LE). That isolation is also reflected in her non attendance at contact and, thus, in her performance as a mother to LJ. I accept that she has been depressed but that has led her to log out as a mother as well.

v) Under the extreme burden of her difficulties, the mother has not been able to show any sustained commitment to change. She has avoided any sustained relationships with inappropriate men but that is also a signal of the extent of her isolation. Her non attendance with the Freedom programme is a particularly clear sign of how she has not been able to commit herself to effecting supported changes. I also note the limited engagement of the mother with the after care work of Ms Lemke-Elms. It is highly likely that M would not have sufficient emotional resources to achieve the necessary commitment now.

vi) The prospects of the mother removing herself from her current environment and starting afresh in an entirely new and protective environment in which she established a way of life where she cared for LJ adequately is so remote as to be profoundly unrealistic. It would isolate her even further and would be a wretched existence for her.

vii) In her current environment she would be unable to care for LJ safely or adequately. One only has to picture what would happen if this young baby were to be with the mother now to identify how impossible an arrangement that would be. The mother would not engage in services that were offered and would not have the emotional or organisation resources to care for him in her isolated lifestyle. Further F would represent a dangerous and destructive feature of any such arrangement and the hostility that he bears would be such as to make her life and care of LJ highly problematic and vulnerable. There is a continuing hostility between F and M that lead to events such as those that occurred in the public house [C175, which I say based only on M's account of this and not on F's controversial and untested contentions to the social worker].

viii) LJ's age, the facts of this case and the duration of these proceedings all combine to mean that it would be thoroughly irresponsible and entirely unnecessary for further assessment of the mother to be directed. M might well respond positively in the short term to a mother and baby foster placement but it is highly improbable that she would be able to care for LJ in the community in the foreseeable future.

ix) The only relevant services that might be provided on the facts of this case are: a) a mother and baby foster placement where there was a very high level of supervision and involvement by the foster carers and the Local Authority and then b) a supported placement in the environment (at that point with a range of community based services). The Local Authority has identified now, somewhat belatedly, what might be provided. So the services are there if the correct solution is to use them. It is very clear indeed that such a structure of services would not meet LJ's welfare. With Chd1 and Chd2 matters did not progress beyond the mother and baby foster placement stage. It is very unlikely indeed that the mother would engage in services in the community (and again I refer to how she did not engage in the Freedom Programme despite knowing its importance) and it is highly unlikely that she would find a lifestyle within the community that met the demands of motherhood.

x) It is very difficult indeed to identify what is happening in this mother's life given her non engagement, isolation and untruthfulness. An example of the latter was the seriously untruthful evidence that she gave about attendance at the Freedom Programme (giving evidence of how much she had gained from it). The truth about her non attendance this year was only revealed after I said that I wanted to hear from the Programme about the progress that the mother had made there and the level of her attendance. This would make it very difficult for there to be sustained and effective support of the mother in the community.

110. Welfare check analysis – LJ is too young for his wishes and feelings to be ascertained. For reasons that I have stated, his mother cannot meet his needs and there is no realistic prospect of her doing so within his timescales. His circumstances must change and the only two options for change are rehabilitation to his mother or placement for adoption. Rehabilitation to his mother is manifestly contrary to his interests for the core reasons that I have set out. He is of an age and background that mean that he must now find a permanent home. Further delay cannot be permitted and he cannot be left in interim foster carer any longer; he has already formed attachments to his carers that, sadly, will now have to be broken. He would suffer grave harm if returned to the care of his mother; his emotional and physical needs would not be met and he would be living in an isolated and very vulnerable environment with a mother who could not meet the organisational demands of motherhood. His mother does not have the capability to care for him adequately and will not acquire that capability in a timescale that is compatible with his needs. Under The Children Act 1989 the only order that could be made consistently with his welfare is a care order.
111. I turn to the checklist in the 2002 Act. In relation to sections 1(4) (a) [wishes and feelings], (b) [needs], (d) [age, sex, background and characteristics] and (e) [harm and risk of harm] I refer to the matters that I have already outlined above. It is in sections 1 (4) (c) and (f) that the welfare checklists in the two Acts are markedly different.
112. For LJ, the effect of ceasing to be a member of his original family and becoming an adopted person will mean that he losses his place within his natural family for life. That is a very major step to take and requires consideration of the long term as well as the short term. There is a magnetism between any individual and his natural origins (which is why adults often like to trace their ancestry so that they understand about themselves). Adopted people may often want to trace their natural families because of the sense of loss and lack of fundamental identity that they may feel. I have thought very carefully about those features of adoption when deciding this case. However, balanced against that is the fact that placement with the mother will not meet his needs in the short or long term and would be very emotionally damaging to him. That being so, how could it be in his interests for him to live in the emotionally isolating and vulnerable environment that the mother would offer him? The long term damage that would arise from placement with the mother would be profound and certain. In the short term, quite simply, he would be a young child whose emotional and physical needs were not met. Thus the effect of him becoming an adopted person is to protect him from that harmful upbringing and to offer him the chance of a place within an adopted family that will love him and care for him by choice following careful selection.
113. As to section 1(4)(f) there is only one person within the natural family that might care for him – that person is M. If she cared for him he would have a very limited involvement with any of his other relatives. M wishes to avoid F and her own family. M's wish to care for him is natural, genuine and deeply felt. However, she is unable to offer him the upbringing that he deserves and needs. Although her love for him is genuine she does not have the emotional ability to commit herself to caring for him (and so, for instance, has been unable to commit herself to attending contact even on a weekly basis and could not commit to the Freedom Programme which she knew was important in her bid to care for him).
114. In the circumstances, I am driven to conclude that I must make a care order in relation to LJ. I conclude that LJ's welfare requires that I dispense with the consent of M (and, insofar as may be necessary F) to him being placed for adoption in accordance with Section 52(1)(b) of the 2002 Act. I make a placement order in relation to him.
115. I deeply regret the very deep pain that this decision will cause to M. I have striven at this hearing to examine every issue in such depth and with such care as I can muster. I hope that she will be able to hear that, if she takes help, she may well be able to parent a child successfully in the future. I do implore her to take that help now and see it through well before she thinks about any question of having any further children. Her damaging upbringing is no fault of hers. As her legal team will know this court has made a lot of effort to ensure that links exist with caring agencies who will offer support to parents who have gone through the very distressing processes of public law litigation. Nobody is more worthy of that personal support than M and I would ask her legal team to ensure that she is aware of how to find it.

Stephen Wildblood QC

6^th March 2014.