England and Wales County Court (Family)

IN THE MANCHESTER COUNTY COURT

		Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		19th February 2014

I INTRODUCTION

1. THE JUDGE: I am concerned once again with D, who was born on 16^th April 2009 so is now rising 5. This judgment should be read alongside my judgments of 19^th August 2013 and 31^st October 2013.
2. I hope that B, the mother, and C, the maternal grandmother, will again forgive me if I again refer to them as "the mother" and "the grandmother".
3. Following the departure of the key social worker J immediately after the last hearing this case seems to have been managed within the Local Authority by her team manager, K.
4. D's Cafcass guardian remains L.
5. At the conclusion of the hearing in October, I made a final care order in relation to D but adjourned the Local Authority's application for a placement order, issued on 2^nd September 2013, until 27^th January 2014. As will be apparent from my last judgment, I had thought that D's placement with her foster carers would, by then, have weathered any early difficulties. I anticipated that the foster carers would be in a position, as they had intended, to make a long-term commitment to D by way of applying for a special guardianship order. I had hoped that it would be possible for the Local Authority to apply to withdraw the placement order application at the adjourned hearing on that basis.
6. Sadly, however, when the case came before me on 27^th January it was apparent that the Local Authority sought to pursue its application for a Placement Order. That application is firmly opposed by the mother and the maternal grandmother but it is now supported by the guardian. Having directed the filing of evidence, I listed the matter for an urgent contested hearing on 13^th February 2014. I was unable to conclude evidence and submissions on that date and the case was re-listed today.
7. I have heard oral evidence from K and from the guardian. The mother and grandmother have been present throughout. They have not chosen to give oral evidence, although I have read their written statements and their position was very clearly expressed by counsel on their behalf.

II THE AGREED BACKGROUND

8. Since my judgment in October, D has remained with Mr and Mrs M, her foster carers. Accordingly, she has now been with them for a period of some six months. Contact to her mother and grandmother has taken place on a reducing basis; it is currently set at once per month with a plan to reduce it to school holidays, about six times a year.
9. Sadly, everything has not proceeded smoothly for D. Her behaviour has proved challenging. On one occasion the foster carers gave notice on the placement only to be persuaded subsequently to withdraw that notice. On another occasion they were narrowly persuaded not to give notice. Their anxieties have centred particularly upon the impact of D's presence and behaviour upon their own child, who is some 2 years older than D. A referral to CAMHS has been made to provide appropriate psychological support for D and her carers. The mother, grandmother and guardian have all been active in doing their best to reassure D and to help her to settle with her foster carers and the last few weeks have proved somewhat better than the period leading up until Christmas.
10. In bald summary, the foster carers have themselves concluded that it would be preferable for D to be adopted. They have declined to put themselves forward as prospective special guardians, let alone as adopters. They have indicated a willingness to continue to care for D as foster carers whilst prospective adopters are sought. If adopters cannot be identified, they will re-consider their position and it seems very likely that they will then apply to be approved as D's long-term foster carers. At present they are unable to offer more than that.

III THE LEGAL FRAMEWORK

11. I will not reiterate what I set out under this heading in my judgment of October 2013, although I have continued to bear all of the relevant principles of law firmly in mind including the authorities cited therein and the references to Article 8 of the European Convention on Human Rights.
12. I reiterate that in determining the Local Authority's application for a placement order, D's welfare throughout her life must be my paramount concern. I must apply the provisions of the welfare checklist at section 1(4) of the Adoption and Children Act.
13. If I were to conclude that a placement order accords with D's welfare, I would then have to decide whether her welfare required me to dispense with the consent of her mother to the making of such an order. I have been referred to the decision in Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625 and I am aware that the word "requires" has the connotation of the imperative: that is what is demanded rather than what is merely optional, reasonable or desirable.
14. It is now the Local Authority's case that, if granted a placement order, they would pursue a time limited search for a prospective adoptive family for D. If the search is unsuccessful, they would hope to maintain D's current foster placement. If in turn that proved impossible, they would search for an alternative foster family. In the light of the recent authorities, I have reflected on the decision of the Court of Appeal in Re P above and, in particular, the judgment of Lord Justice Wall, as he then was. None of the recent authorities refer directly to circumstances where a child cannot return home but where a dual track plan is contemplated and where adoption is the preferred but not the only alternative for the Local Authority. It may be arguable that in some such circumstances there is something apart from adoption which "will do". However, the Supreme Court and the Court of Appeal both had ample opportunity in the cases to which I have referred to cast doubt on the approach in Re P and they chose not to do so. In the circumstances, the decision remains binding upon this court alongside the more recent decisions.

IV MY FINDINGS

15. I am entirely satisfied and, indeed, this is not disputed that both Mr K and Miss L have considered D's predicament with anxious care. They were both honest and impressive witnesses who have analysed the competing alternatives for D exhaustively. I must attach particular weight to the advice of the guardian since it was she who was so reluctant in October 2013 to endorse a plan for adoption when, as she perceived it, there was another viable alternative available. It was the guardian who argued in clear terms the potential advantages of a special guardianship order in favour of the current carers over a placement order.
16. The balancing exercise which I must conduct today is a different exercise to that which faced me in October. Then I was seeking to balance the likelihood of a special guardianship order to Mr and Mrs M against the granting of a placement order. Today I must balance the prospect of D remaining in long term foster care throughout her minority against the granting of a placement order. Nevertheless, many of the factors in the balancing exercise which I sought to conduct in October 2013 remain relevant and I propose to reiterate them with some amendments and additions.
17. D is about to start infant school. Her place is on hold pending this decision. She is already "old" in terms of finding an adoptive family. The history of severe mental illness in the mother and the maternal grandfather will reduce the number of adoptive placements available to her, as will her mixed heritage.
18. The evidence of the family placement team is that there are only six families who are a potential match for D. So identifying an appropriate adoptive family may prove difficult and the Local Authority accepts that the process could take up to twelve months. Their proposal is that they will review the position after six months, at which stage they will begin a dual search for adopters and long-term foster carers.
19. I would find it very difficult to endorse a plan which anticipated a child of D's age being in long-term foster care for the remainder of her minority. Long-term foster care would involve the Local Authority continuing as D's corporate parent for the next 14 years, with all of the intrusions of monitoring and intervention that implies: an allocated social worker who will inevitably change over the years, statutory reviews, a personal education plan, CRB checking, etcetera.
20. Foster care has an inherent sense of the temporary. A placement can easily be terminated by a foster carer giving notice either because her personal circumstances have changed or because of a change of policy or direction within the Local Authority. Sitting in this jurisdiction, sadly, one sees far too many teenagers and adolescents who have been subject to multiple moves and instability within the care system.
21. Moreover, if a child is in foster care the Local Authority's plans can always be challenged. Both the mother and the grandmother made it very clear that they would view any decision for long-term fostering as a stop gap, pending the mother's health improving or the grandmother demonstrating that she can remain sober and otherwise address her problems. That approach carries real risk of instability for D in the years ahead.
22. Foster care ceases when a child reaches 18 and she becomes subject to the Local Authority leaving care provision. Even at its best, foster care does not provide the lifelong commitment of adoption.
23. On the other hand I am acutely aware that adoption is no panacea and adopters face all the vicissitudes of life faced by ordinary parents with the added complication that they are caring for a child who is not their birth child. Adoptions can and do break down sometimes, with disastrous consequences.
24. The Local Authority contends that D deserves the opportunity of adopters who can offer her a real family life, parents who will claim her, commit to her beyond her 18^th birthday and where her needs will be met consistently in a stable environment.
25. The Local Authority accepts that if it is successful in finding adopters D would have to move yet again. This is an important factor in the Guardian's analysis. She said:

"I would be very concerned about yet another move for D. If the Local Authority is seeking adoptive care for six to twelve months, that is another six to twelve months of D not knowing where she is going to be living. The process of starting to talk about her new family is itself very unsettling".

I accept that as the months go by and D settles with her current carers, growing up, and becoming more aware of her circumstances, moving her on to adopters will become more difficult and painful.

…………………

14 This is a little girl who knows the significance of family members and has strong bonds of affection with them. Contact is generally a positive experience for her. Her grandmother and mother attend conscientiously, sometimes accompanied by other members of the family. There are of course risks in continuing direct contact arrangements when the family do not truly accept the placement as long term. However, I am sufficiently encouraged by the behaviour of the mother and grandmother when D was removed to hope that they are able to put her needs first and will refrain from doing anything which might destabilise the placement. Although, again, it is early days, their conduct has done much to create a positive impression of the birth family for the foster carers, who feel they could work with the family in the long term.

26. Developments since October 2013:

(a) D is now some 3 months older;

(b) She has now started infant school where she has settled well and has friends and has the support of a counsellor;

(c) The evidence of N, the manager of the adoption team, is that there are now in Adoption 22, the local consortium, some 43 families approved to adopt a child of D's age, although none reflect her complex ethnicity. (I note that Mr and Mrs M are of white British origin.) By the time Mr K gave evidence the number within Adoption 22 had reduced to 22. There are eleven families who may be suitable on the national adoption register. Despite that, in the light of the factors which I have previously identified, I remain doubtful whether a suitable placement can, indeed, be identified within the time scale of six months;

(d) The mother has continued to attend contact conscientiously which has continued to be positive. The grandmother has missed a number of visits. Both have continued supportive of the foster carers and have a good relationship with them. They accept that contact must gradually reduce to a level compatible with a long-term placement;

(e) The Local Authority, the guardian and the maternal family all continue to be impressed by the sensitive care which Mr and Mrs M have afforded D;

(f) Given some of D's difficult behaviours it has been suggested—

MISS C: (Interrupts)

THE JUDGE: Miss C, I do understand how upsetting it is for you.

MISS C: Yes, it is upsetting [inaudible] really, you know.

THE JUDGE: I am sorry. Do you want me to break for a minute or shall I just get this over with?

MISS C: Get it over with.

THE JUDGE: Yes.

(f) I hesitate to use the vernacular term but it is suggested on behalf of the family that D is now not "adoptable"? I have expressed my reservations as to whether a suitable family can be identified but this is a different point. Could D herself cope with the loss of contact to her maternal family? Can she attach to new carers? Will her behaviour be such as to destabilise any adoptive placement? I am persuaded that with the help of her foster carers, D is developing a very basic understanding appropriate to her age of the relevant concepts and I accept the professional consensus from the Local Authority and the guardian that D would be capable of moving on and attaching to the right family.

(g) I have been concerned by the level of confusion and distress that D has already demonstrated. I understand the argument that the granting of a placement order means that there is a continuing period of at least six months during which D cannot be told in clear terms what is going to happen. On the other hand, even if I were to decline to grant the placement order, there can be no certainty for D. Whilst it is likely that if the Ms did apply to be long term foster carers that they would be approved as they seem entirely appropriate individuals, that process is some way off and in any events, D, like any other foster child could never be told in clear terms: you are staying here "for good". It is one of the deficiencies of foster care, that there can be no such promises.

27. I take all of those developments into account. However, the factor which continues to weigh most heavily in the balance against offering the Local Authority the opportunity to find an adoptive family is the relationship which D currently enjoys by way of contact with her mother and maternal family. Prospective adopters will not generally countenance direct parental contact so I must approach this decision on the basis that direct contact will probably cease. There is no doubt in my mind whatsoever that both the mother and the grandmother love D very much indeed and the loss of contact will be for them devastating as it will be for the wider family. From D's perspective she has a sense of herself as a part of her family. She knows who her mother is, who her grandmother is, who her aunts, uncles and cousins are. When assessing D's welfare throughout her life, the factor assumes a lesser significance, but it has nevertheless weighed anxiously in my reasoning.
28. However, taking the evidence overall and bearing in mind the professional advice from both Mr K and Miss L, I am certainly persuaded that, on balance, and applying the welfare checklist, it does accord with D's welfare interests for the Local Authority to have the opportunity to search for an adoptive family. I have sufficient confidence in the Local Authority to know they would not move D unless it was to provide her with a better option than her current placement.
29. The question with which I have genuinely struggled is whether a placement order is truly necessary and proportionate in D's circumstances. Is it really the case that "nothing else will do"? I am conscious that this is the issue which has also troubled both Mr K and Miss L and was at least, in part, the reason why Miss L, on a very fine balance, was unable to support the Local Authority's application in October 2013.
30. It is obvious that there does remains an alternative, and a realistic alternative. I could decline to grant the placement order with the result that D remains in foster care with the hope that she may be able to remain with the M family in the longer run. Mr K described that as an "acceptable" alternative. So the difficult question for me is whether, although long term foster care does not in my judgment, accord with D's welfare, it is nevertheless the right alternative, given that it represents a less intrusive intervention in the lives of D and her maternal family? Put in a different way, does the balancing exercicse come down so firmly in favour of granting the Local Authority's application that D's welfare requires me to dispense with the consent of the mother?
31. Ultimately, I have concluded that if I focus on D's welfare throughout her life and not just in the coming weeks and months the position really is very clear. I note that in the authorities to which I have been referred, the courts have been concerned with the balance to be struck between a return to parental care and adoption. Here, as I made clear in my earlier judgment, there is, sadly, no sensible possibility of D returning to the care of her mother. D is still less than 5 years old. She deserves the chance of a permanent, new family of her own.
32. Mr and Mrs M cannot commit themselves to caring for her throughout her minority. As Miss L put it, the fact that they felt that adoption should be tried for D is "telling in terms of their commitment". Her view was that they were nowhere near the stage of contemplating a special guardianship order. In my judgment the blunt fact of them giving notice on this placement and contemplating doing so on a second occasion speaks volumes. The security, stability and consistency of care D deserves is unlikely to be achieved by her remaining in foster care for the next 13 years of her minority. As Mr K put it… "there may be a better family out there; we need an opportunity to look for that family, we are doing D an injustice otherwise."
33. I conclude that the overwhelming priority for D must be to give her the chance of a loving permanent family who can commit themselves to caring for her for the remainder of her life. I fear for her future if she lacks carers who have that degree of commitment. Ultimately, I have concluded that, for this little girl in her current sad predicament now, nothing else will genuinely do. Focussing as I must upon her welfare, I am persuaded that the position really is so clear that the evidence requires me to dispense with the mother's consent to the granting of a Placement Order.

V ORDERS

34. Recording that I have so dispensed with the mother's consent, and on the basis of the Local Authority's plan to seek an adoptive family for a time limited period of six months which commences today, and on the basis that contact with the maternal family will be maintained at least until any matching meeting, I make a placement order.
35. I reserve any further applications in relation to D to myself.
36. I will direct a transcript of this judgment.at the joint expense of all of the parties. I will circulate an anonymised draft judgment to all of the advocates so that you can all check it to make sure there are no errors that might enable anybody to identify D or her family

Miss B and Miss C, I am very sorry to have had to reach that decision.

VI POSTSCRIPT

37. Before I depart from the case, I do wish to emphasise clearly that this judgment should not be read as in any way critical of Mr and Mrs M. They have done a very good job of caring for D since September in very difficult circumstances. They have been honest, indeed painfully honest at times and entirely co-operative with professionals. I respect them for not simply "going along with" what they must have known was what professionals wanted of them. They have tried to to focus upon D and what was best for her. I am grateful to them for everything they have done on D's behalf.
[Discussions re order follow]