Case No: LJ13C00283
IN THE LEEDS COUNTY COURT
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The Children (4-7)
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Lindy Armitage for the Applicant
Joanne Astbury for the 1st Respondent
The 2nd Respondent did not attend and was not represented
Michael Burdon for the 3rd Respondent
Nigel Bowman for the 4th – 7th Respondents
Hearing dates: 7 – 11 April 2014
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The Issues and the Evidence
19. In respect of CD, the father of W and X, he has played no part in these proceedings. The social worker met him once during the proceedings as he was at the home of AB when she visited for an assessment session. However since then he has made no contact with the social worker and has not responded to letters written by her and her legal department asking him to engage with the care proceedings. A phone number the guardian had been given for him has been disconnected so she has not been able to meet with him. I am satisfied that he is aware of the proceedings and that it is appropriate to proceed in his absence.
20. EF has never sought to be assessed as a carer for Y. He had had intermittent content that Y since her birth including staying contact overnight on at least two occasions. Prior to her being received into local authority care Y had not had contact with her father since June 2013. As soon as he became aware she was in foster care he made contact with the local authority and was keen to resume contact. He did not however seek to be assessed to care for Y, proposing rather that his sister, GH, and her partner, IJ, be assessed as carers for Y. A viability assessment was positive, as was a full kinship assessment. After it became clear that, rather to his surprise, he was indeed the father of Z, EF put himself forward to be assessed to care for her. That assessment was negative and when considered alongside police evidence relating to a charge of assault by EF in respect of his older daughter, R, and some aspects of his criminal history, the local authority was clear it could not place Z in his care.
21. I should say for completeness that GH and IJ considered carefully if they could offer to care for Z alongside Y but, understandably maybe, felt this was more than they could manage.
22. AB's case is in many ways quite straightforward. She does not seek to care for any of her children, seeing the difficulties in her situation. She therefore accepts W and X remaining in long-term foster care. In respect of Y she notes the plan for Y to be placed with her aunt and uncle but understands that this aspect of the proceedings will be adjourned for fuller assessments. The local authority proposes that her contact will be monthly with Y pending final hearing and AB accepts that. She also agrees to EF having parental responsibility for Y and Z.
23. AB takes issue with two aspects of the local authority's plans to her children. In respect of W and X she believes the reduction in contact to six times a year is too great and she would ask for that to be monthly. She points to the very good quality contact and the evidence in the core assessment of a positive relationship between her and the children. She says through Ms Astbury that her view is that monthly contact would better meet the children’s needs for an ongoing good relationship with her and, the point was made, would avoid W in particular worrying about her. It was suggested that it would be better to set contact at a monthly level and see how it goes before reducing it further only if necessary, an active review process.
24. In respect of Z, AB opposes the making of a placement order. She is pleased that it seems Z can remain in her current foster placement and believes that is how Z's needs would best be met. She would want to maintain direct contact with Z and would wish it to be at the level of monthly contact, the level of contact she would seek with all of her children.
25. EF through counsel is clear that he wishes to have the best possible relationship with his daughters. As with the mother, he does not wish to Z to be placed for adoption. He would have wished to care for her if his situation had been different in respect of the charges regarding his elder daughter. He believes Z's needs are being well met in a current placement and he would wish to remain there. It would be his hope that some point in the future he may be at pursue his case to care for her once when the proceedings are out of the way, although Mr Burdon acknowledged he could but no timeframe on this and therefore could not be a strong point.
26. At the commencement of the evidence in this case therefore, the issues I had to deal with were very limited and were as follows:
a. The level of contact between W and X and their mother.
b. Whether I should make a placement order in respect of Z.
c. If I did not make a placement order in respect of Z, the level of contact between her and her mother.
27. I now turn to consider what orders if any are in the best interests of each of the children. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In their Re B  UKSC 33 the Supreme Court emphasised this, reminding us such orders are “very extreme”, and should only be made when “necessary” for the protection of the child’s interests, “when nothing else will do”. The court “must never lose sight of the fact that (the child’s) interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”. I have looked again at the words of the President in Re B-S (Children)  EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for this children, taking into account the assistance and support which the authorities or others would offer.
28. In reaching my decision I have taken into account that each of the children’s welfare is my paramount consideration and also that I need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and each of the children as any decision I make today will inevitably involve an interference with the right to respect to family life. I must be very careful to ensure that any orders I make are in accordance with law, necessary for the protection of the children’s rights and is proportionate. I am also very conscious that I must have in mind the general principle that any delay in determining the question is likely to prejudice the welfare of the child, relevant here to Z.
Parental Responsibility for Y and Z
29. As a preliminary matter, I am going to look at the question of parental responsibility for Y and Z. EF does not have parental responsibility for the girls and at the IRH I raised the question of whether this should be addressed.
30. The Children Act gives no guidance on when parental responsibility should be granted. The children’s welfare is the paramount consideration and it must be better for the children that I make an order than not. The welfare checklist in s1(3) need not apply to such an application. The leading case for many years has been Re H (1991) 1 FLR 214 where the Court of Appeal held that the court would take a number of factors into account, including
- the degree of commitment which the applicant had shown towards the child
- the degree of attachment which existed between them
- his reasons for applying for the order.
In Re G (1994) 1 FLR 504 it was held that those factors are not exhaustive but indicative. However, if those factors are present then prima facie it would be in the child’s welfare for a parental responsibility order to be made.
31. EF has had contact with Y throughout her life, not necessarily consistently but he has certainly shown a commitment to her. Evidence from contact shows an attachment between Y and her father. The situation with Z is slightly different as EF did not know he was her father until DNA testing within these proceedings. He then immediately sought have a relationship with her and offered himself as a potential carer, albeit he has had limited contact with her. From the evidence I have read generally about him he has a commitment to all of his children even though they are not in his care and clearly his role as a father is important to him. I note also that AB and the local authority agree to EF having parental responsibility for the girls.
32. Neither Y nor Z is going to be in the care of EF but that is not a reason for not reflecting his legal relationship with them. I am satisfied that the factors identified in Re H are present in this case and that it is right that an order should be made in respect of Y and Z granting parental responsibility to EF.
33. As the decision I have to make respect of Z is by far the most significant to be considered today, I am going to deal with her first. I have to ask myself whether she should remain in long-term foster care, hopefully in her current placement, or have the possibility of an adoptive placement, and I have to balance the pros and cons of each of the options being presented to me. McFarlane LJ in Re G  EWCA Civ 965 said “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.” In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002, and I propose to consider the evidence in the light of those factors.
34. We are often told that the factors in the welfare checklist are not set out in any order of hierarchy. In this case it seems to me maybe the most crucial factor for me to address is Z's needs, alongside consideration of her age, sex, background and any characteristics of hers which the court considers relevant. Z is a child with very real special needs as a result of her medical condition. She needs carers who can offer extremely high quality care, meeting her emotional and physical needs, both of which may be significantly heightened due to her medical condition. She needs carers who are able to make a commitment for the entirety of her life however long that is. She needs to have the most normal life that she can – she is a child who is going to stand out by virtue of her medical condition and she needs no other identifying characteristics.
35. In pondering this heading I remind myself of the words of Black LJ in Re V  EWCA Civ 913. There she said:
“95. Also entering the picture is C's view. The judge thought she may have been given a rosy tinted view of adoption and not told that long term fostering could provide the same security. 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.
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).”
I cannot better the words of Black LJ in setting out the conventional thinking on why adoption is a better outcome generally for a small child then foster care. What she sets out here is very much in line with what the guardian and social worker said in their evidence.
36. I am very conscious that were I to make a placement order there would be a change in Z’s circumstances if an adoptive home were found for her. She is clearly receiving very good care in her current foster placement and I am sure has formed a strong relationship with her carer. I do not minimise the impact on her were she to be moved from there but social workers are skilled in assisting children with this and I have no doubt that would be true in this case. I do not think as a result of moving her she would suffer harm within the meaning of the Children Act 1989. I fully accept that the current carer, if she were to be Z's long-term foster carer, would be capable of meeting all of her needs, save that of the emotional need for one's own parents which could only be met by adoption, given that Z cannot be brought up by either of her parents. Her carer I am told is of the view that the local authority should look for an adoptive family Z and is not offering herself in that role, and that is something I have considered carefully given that she has I understand two other adopted children so knows something of the commitment required from an adopter.
37. I also do not minimise the impact on a child of the loss of birth family relationships, including in Z's case with her three older siblings, and these are key factors in the balancing exercise I have to carry out. Given that she does not reside with any of them those links are not as strong as they once probably were but there is the potential in the future for any or all of these relationships to become more significant. That will be lost to all intents and purposes if Z is adopted as the only contact proposed is indirect contact. Family links are very important to any child as they grow up and indeed in adulthood. However I have to balance those family links with Z's needs for her own forever family. If there is indirect contact then Z will know of her siblings and would have the option of making contact with them later. I know that is not the same thing as having an ongoing relationship but it keeps the possibility of links with her birth family open in a way that is not always been the case with adoptions.
38. I also have to consider the impact of delay on a child and this is relevant to Z. Were she not able to remain where she currently is placed if adoption does not come about then the act of spending six to nine months looking for an adoptive placement could cause her harm. However it seems very hopeful that she will be able to remain in her current placement as a long-term placement if an adoptive home is not found for her.
39. I acknowledge that I have no evidence before me as to how placeable Z is. Any court though knows that the chances of her being placed are far lower than most little girls of her age. I am satisfied though that she deserves the chance of an adoptive family with all the security that that brings with it. I have heard that the local authority very sensibly intend to time limit the search to six to nine months and the guardian supports that. If within that time an adoptive family has not been found for Z the local authority will put in hand the steps needed to ensure Z can remain in her current placement as a long-term foster placement.
40. In respect of Z then, having carried out the balancing exercise that I must which has been a particular difficult one for me as well as the social worker and guardian, I am satisfied that her needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority’s final care plan for Z is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order in respect of Z. I am also satisfied that Z’s welfare requires me to dispense with the consent of AB and EF and to placing her for adoption, the word “require” here again having the Strasbourg meaning of necessary, “the connotation of the imperative”. I make a placement order authorising the local authority to place Z for adoption.
41. Much was said in court about the question of letterbox contact between Z and her family. The local authority's plan originally was that information will be shared in two directions twice each year between Z, her mother, her father, and her siblings. The guardian queried that, pointing out that that in effect meant six lots of contact a year, with the potential to destabilise the placement and also a significant requirement on potential adopters. The social worker having considered that changed her recommendation to annual indirect contact, an approach supported by the guardian.
42. The mother understandably would wish to have as much contact as possible. The problem is that is very hard in the abstract to know whether or not such contact is beneficial all not for the child. The purposes of indirect contact I remind myself is to assist a child with her sense of identity, not to keep the parents in touch with her life even though that would be a much valued side-effect. In terms of the impact on Z of indirect contact, one cannot know it throughout her life she will be a child who will find such reminders of her past positive or negative. Equally in terms of the impact on adopters of providing indirect contact, one cannot know if they will happily comply or find it a burden or a worry. The social worker and the guardian were both clear it would be worse for the birth family if indirect contact was expected and did not happen. The social worker's view was that it might be best to set contact at an annual level and be confident adopters could maintain that and from the point of view of the birth family I would agree with that. It may be that adopters found for Z would feel able to promote more indirect contact if they felt it to be needed by Z, particularly with her brother and sisters, but I do not think that I can be prescriptive about that. If carers are found who are able to make a permanent commitment to Z then I am confident they will do what is best for her in respect of indirect contact and will think about the positives and negatives it brings for her. I would definitely say that whatever indirect contact is sent to Z and her family should be gathered into one envelope by those responsible at the local authority for letterbox contact to minimise potential upset not just to Z but to her new parents. It will then be for them to work out how to share that information with Z in a way that best meets her needs.
43. There is one direction I wish to make linked to the placement order. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. This judgment, in setting out what I have read and heard in court, gives at least a summary of that start and also sets out my thoughts in respect of indirect contact. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing Z up. I propose therefore to make a direction that this judgment should be released by the Local Authority to Z’s adopters so that it is available to her in future life.
44. I should also record that the local authority was clear that contact would be maintained between Z, her parents and her siblings up to her being placed to adoption so that, were she not to be placed, she would not have lost her birth family links.
W and X
45. I then turn to the other children. It is agreed that there should be care orders in respect of W and X given that they cannot return to their mother’s care and I make those orders. I then need to consider the appropriate level of contact for them with their mother.
46. The children have a good relationship with their mother and I am quite sure they want to go on having contact with her. There is no suggestion that contact when it is taken place has been anything other than good for the children. I am conscious that this year contact has been much less consistent, it seems due to the mother's use of alcohol and her general mental health. Since the middle of January a significant number of contact sessions have been missed by AB. Obviously her arrest this week has caused a hiatus in contact and if she is to remain imprisoned for some time may mean contact is not restarted in the near future as the mother and local authority are both of the view that it would not be ideal to take the children to the prison. I have no doubt that the children are upset and confused when contact does not happen and this will impact on their emotional well-being. They need a good quality relationship with their mother for which they need consistent contact to take place.
47. That need needs to be balanced against the need for a secure permanent home and for sense of stability in that placement. We know that W and X are likely to be moving in the near future to a long-term placement, hopefully that one which is currently being pursued. Y is hopefully going to have a move to her family placement in the same kind of time frame. The children are going to need time to adjust to the coming changes and then need time to settle in their placements. That may well necessitate the need for flexibility in respect of contact arrangements. The local authority says that the right level of contact in the longer term for the children is six times a year with their parents and with each other, although possibly with some additional contact organised the siblings between their carers. It is anticipated that contact will happen in school holidays to avoid disruption to their day-to-day lives and will be contact for about four hours in duration, a good length of contact. The social worker’s view is that such contact will allow for meaningful relationships to be maintained without the children being disrupted. They may well be times in their lives when more or less contact is needed and the local authority needs to be able to act accordingly.
48. The guardian supported that level of contact recommended by the local authority, whilst agreeing it needed to be constantly reviewed in both LAC reviews and within the Area Office although her evidence did tend towards a review not some time. Her view was if it was positive it could maybe be increased, the IRO liaising with the children as to their wishes. She acknowledged the strength of the relationship between the children and their mother and the generally good quality contact and she felt in reaching her decision she had taken into account the positives as well as negatives.. For her a particular problem was that the mother was currently in prison and therefore there had to be a hiatus in contact. She also felt one had to consider the pattern of contact including the extremely important contact between the children and their grandmother, who had never let them down and which they thoroughly enjoy it worth their contact with their mother was she agreed tinged with anxiety as to whether she would attend and whether she would be well.
49. I very much understand that AB wants to have as much contact as she can with her children and to maintain a meaningful role in their lives. She will remain their mother and will continue to see them but she has to accept that, difficult though that is, it is not going to be the same as when she was bringing them up herself. I do agree that it is unusual for a mother to be able to accept that it is best to her children to be brought up outside her family and that is definitely to AB's credit. There is a real positive to the children in her being able to give them reassurance that she agrees to this plan they do not need to think they are being disloyal to her in attaching to a new family. Contact with her will be a positive way that message being given to the children, assuming she can keep to this approach. A reduction in contact is of course in itself a way of giving the message to the children that they are not returning to their mother's care but the effect of a positive reinforcement of this from her cannot be underestimated.
50. It is also proposed that W and X should go on having contact with their maternal grandmother as they do now and it is anticipated that will be on a monthly basis and includes some overnight contact. I have been told the children very much enjoy that contact. The mother does not seek to prevent that contact in any way but does not want the amount of contact the children are having with their grandmother to be the reason why they should have less with her due to the total number of contacts. I acknowledge that but equally I think simple uncomplicated family contact, here with their grandmother, is going to be very important to the children as they go through a period of many changes in their lives and have to come to terms with the fact that they are not going to live together again as a family with their mother and siblings.
51. The problem I am faced with is that as a judge I am not sure that I know at this precise moment in time what arrangements are best for W and X. The social worker and guardian are both of the view that contact six times a year with their mother, ie just in school holidays, is the best level to enable them to settle in their placement and attach to their long term carers whilst maintaining a meaningful relationship with their mother. The mother says that the children are close to her and need to keep that relationship throughout their childhoods as they will continue to be part of their birth family throughout their lives. Both of those statements are valid but I do not think one can be prescriptive about what contact is required at this moment and be confident that will remain the right level. I was slightly troubled that the social worker suggested she would not be open in review to the possibility of contact being increased from six times a year. I would hope she and indeed the independent reviewing officer would act each and every review (and indeed in between reviews) be looking at whether the level of contact at that time was meeting the children's needs. In other cases with which I have been involved social workers and guardians have supported higher levels of contact such as monthly contact, even where parents have opposed plans the children to be placed in foster care, which has not been the case here. Contact as a whole needs to be looked at together, ie including the grandmother's contact. I can see the difference in the potential impact on the children of contact with their grandmother, whose role in their life seems always to have been positive, and their mother, who much she has loved them and cared for them has also cause them harm. The reaction therefore for the children in seeing their mother and their grandmother could well be different but only time will tell.
52. I make these comments because I am not going to make a defined contact order because of the importance of flexibility and I am satisfied that the arrangements need to be left in the of the local authority’s hands. However I am going to direct that this judgment is sent by the local authority to the children's independent reviewing officer so that I can be confident he or she is aware of what I have said regarding the need for active review of contact, particularly between the children and their mother. It may well be there is a need for more regular reviews, whether formal or otherwise, in the early stages of the children's placement to ensure that contact is at a level which meet their needs.
53. Having conducted the required balancing exercise then, I am satisfied that the local authority’s final care plan for W and X is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in their best welfare interests and I approve it, whilst wishing my comments here to be conveyed to the IRO.
54. The plan for Y is that she should be subject to further interim care orders whilst the assessments of her aunt and uncle are carried out and, hopefully, she is placed in their care. It is proposed that she has monthly contact with each of her parents pending the final hearing, and I emphasise this as it is not entirely clear from the care plan last filed that this is the local authority's position. Her parents are content that the longer term plans for contact are looked at the final hearing for her, when both may wll seek contact at a higher level than that envisaged by the local authority. EF’s concern is that his sister who it is anticipated will be caring for Y supervises his contact with another child and that restricting his contact with Y will impact on the other contact. The local authority is aware of his concerns and can address this in its final evidence.
55. In respect of Y I make a further interim care order for period of twenty eight days, thereafter to continue to be renewed in the usual administrative manner. I note the plan for her to have contact with each of her parents once a month until the final hearing and I approve that plan. I would invite the parties to agree a timetable through to final hearing for her including the filing of all necessary evidence.
Public funding directions
56. Finally I make a public funding direction in respect of the public funding certificates for W, X and Z.