England and Wales Family Court Decisions (High Court Judges)

IN THE BRISTOL FAMILY COURT

		08/08/2017

HHJ Wildblood QC :

1. Introduction - Should a challenging four year old boy remain living with his loving grandfather, who struggles with his behaviour and with whom he has lived for ten months, or should he move now under a care order to live with identified agency foster carers whom he has never met and have staying contact with the grandfather? The question is easy posed. The answer is far from straightforward in my opinion. The regrettable delay in these heart-rending proceedings, which I have not seen before, has added to the difficulties.
2. So, these are public law proceedings concerning a child who is aged four. Very sadly, the child's father was found dead in an abandoned factory in 2016; apparently, when he was found he was surrounded by drugs paraphernalia and his body tested positive for the drug called 'Spice'.
3. The principal reason why the Local Authority intervened in the life of this family is the chronic addiction of the mother to class A drugs (including heroin and crack cocaine and also to benzodiazepine) and the consequent neglect of the child's welfare. The mother, who has used heroin and crack cocaine on and off since she was 15 years old, has 92 criminal offences recorded against her [H25] and has two other children, neither of whom is in her care.
4. As a result of the upbringing that he has received, the child is now showing evidence of having suffered very significant physical and emotional neglect – his speech is delayed, he has significant problems with emotional regulation and he appears hyper-alert. In January 2017 a Consultant Paediatrician said that the child was showing 'a significant amount of concerning behaviours in relation to his need for adult attention, even if this is negative, and he will continue to need very calm and attuned parenting' [C56]. In my opinion, the difficulties that are now being seen with the child's behaviour are hardly surprising – his father has died, his parents were both addicted to Class A drugs when he was in their care, his mother is in prison and has only seen him once in the past ten months and he has been living with a loving and gentle grandfather who has struggled to cope with the caring role that he has valiantly assumed.
5. It is now said that the enormity of the task that has befallen this grandfather and the extent of the emotional damage that has befallen this child are too much for the grandfather to cope with in the long-term. If that is so then nobody could possibly express even a hint of criticism of this grandfather or fail to express their admiration for the efforts that he has made.
6. The options before the court are that:

i) The child should move to long term foster care with carers identified by the Local Authority. This is the option that the Local Authority and the guardian recommend. The recommendation is that the grandfather should have staying contact with him every fortnight as well as further staying contact during the holidays. These proceedings were adjourned on 21^st June 2017 as suitable foster carers had not been found. The Local Authority has now found experienced foster carers who would wish to offer this child a home. The foster carers, who have their own child, are away until 28^th August 2017, however, and so the Local Authority suggests that any placement with them should be delayed until they return. The Local Authority proposes that the mother should not have direct contact with the child until she is released from custody and has 'demonstrated a period of abstinence and stability'; in evidence the social worker thought that the period should be at least three months.

ii) The child should remain with the grandfather. It is argued that this should be by way of the continuation of the current child arrangements order, as a final order, on the basis that the grandfather may wish to apply for a special guardianship order later. At present there is no special guardianship support plan. The mother supports this second option and says in her statement of 9^th June 2017: 'in time I wish to prove that I could care for [the child]. I accept that this is a long way off and I need to prove that I can be drug free and lead a healthy life but I will not have the opportunity of doing this if [the child] is in long term foster care as contact will be too limited…I am aware that one of the concerns that the Local Authority and the guardian have is that my father will not be able to protect [the child] from any demands I may make to see him. I do not accept this. I will abide by any order that the court thinks is appropriate and would not wish to undermine [the child's] placement with my father as I know this would mean that [the child] could be removed from his care'.

7. Relevant chronology – The Local Authority had been involved with the child for much of his early years. However, matters reached a crisis in 2016 after the father's death when the mother once again began using Class A drugs heavily. On 10^th July 2016 the mother was seen taking cocaine at Motorway services at a time when the child was in her car. The child was removed from her care but, after two nights, he was returned to her. The mother tested positive for heroin and cocaine again on 23^rd and 28^th September 2016 and, when the results of the tests became known to the Local Authority in October, the child went to live with the grandfather and these proceedings were issued on 26^th October 2016. On 14^th December 2016, the mother's daughter, who had moved in to live with the mother, had contacted the Local Authority to say that her mother had left her in the flat without food or electricity. The mother continued to use drugs after the issue of proceedings and did not maintain contact with the child (save for one visit). Further, she did not maintain contact with the Local Authority until she attended the social worker on 9^th March 2017 saying that she had been using drugs heavily and had 'hit rock bottom'. Her then partner was also a Class A drug user also with 92 criminal offences recorded against him. [H2].
8. Shortly afterwards, the mother was arrested for dangerous driving. In March 2017 she was remanded in custody and, on 8^th May 2017, suspended sentences for theft were activated and she was sentenced to a total of 15 months imprisonment for the theft offences and for the two offences of dangerous driving [H137]. She is likely to remain in custody until a date in the autumn of this year. The mother has made real efforts to rid herself of her drug addiction and I wish to pay very full recognition to that. An addiction is a form of compulsion and it takes immense effort and self-understanding to regain control of a life that has been so affected. I think that is completely understandable that she wishes to also regain the care of her son in the fullness of time – what mother would not? Her behaviour at this hearing has been exemplary and I wish her well with the efforts of getting her life back in order. Rehabilitation and redemption do exist.
9. The child went to live with his grandfather on 7^th October 2016 (about ten months ago) and an interim child arrangements order was made to reflect this on 11^th November 2016. At the time that he began living with his grandfather the child's behaviour was unregulated – he would bite kick, shout and throw things. In vernacular terminology his behaviour was off the wall. He also had limited speech and a very poor routine (he woke in the early hours of the morning and then slept again for several hours in the afternoon). Unsurprisingly, the grandfather said in the April 2017 assessment that he was exhausted and sleep deprived. The mother has only seen the child once since he started living with the grandfather – the visit seems to have taken place in about January 2017 (possibly earlier) and was not arranged by the Local Authority.
10. The grandfather found great difficulty coping with the child's behaviour when he first took on the child's care. He now says that things have improved; the guardian and the Local Authority say that there has been some limited improvement but not enough for the grandfather to be able to provide a long-term solution to the child's care. They both suggest that, in the medium to long-term, there is a very significant risk that the grandfather will not be able to control the child's behaviour. I was given numerous examples of this during the oral evidence and will cite some of them later. However, it is very plain indeed that this boy remains highly damaged and imposes immense demands on his grandfather who has been doing his best to care for him.
11. The grandfather has recently moved to a new one-bedroom first floor flat which the guardian has seen and which appears to be a significant improvement on his previous accommodation. As a single man in his 60's he has looked after the child with love and commitment and has endured the demands of the child's behaviour without apparent anger or frustration – rather it is said that he has been too soft, if anything, which (if it is true) represents a very kind and gentle streak in the grandfather's personality. Although a positive viability assessment of the grandfather was carried out (C26-31) a more detailed special guardianship assessment by a social worker from the kinship team dated 6^th April 2017, was not positive. The assessment of the kinship team social worker is at C52a and she gave evidence at this hearing as did the allocated social worker.
12. Like the guardian both social workers were both of the opinion that the child cannot remain with the grandfather consistently with his welfare and he must move to foster care. The grandfather gave evidence stressing his commitment and love for the child and urging the court not to remove the child from his care. As is obvious, I suspect, I have found this a heart-breaking case to hear and have truly agonised over it. In less than classical formulations I have said that I am deeply conscious of how easy it is in the rarified atmosphere of the court to put someone else's parenting under the evidential microscope and make critical comments based on values founded on middle class views of optimal parenting. I am not a social engineer and have no intention of becoming one. This case involves a very hard judgment call, in my opinion.
13. Threshold - In relation to the threshold criteria under section 31 of the Children Act 1989, it is agreed that they were fulfilled at the time that protective measures were taken (i.e. in October 2016) in the terms set out at A13. That document cites the mother's chronic drug use and chaotic lifestyle, the fact that her two older children are not in her care, the neglect of the subject child's emotional welfare leading to his behaviour being challenging and outof control, the fact that the mother has not felt able to work with professionals and the mother's lack of contact with the child.
14. Therefore this is a case where the analysis falls to be carried out under welfare considerations taking into account Convention rights.
15. The mother - The key reasons why the mother is not able to care for the child are:

i) The chronic duration of her addiction to drugs.

ii) The very real risk that will revert to drug-taking and her previous chaotic way of life following her release from custody despite the efforts she has made whilst in prison.

iii) The need for the mother to undergo a significant period of treatment and drug relapse prevention work within the community before there could any confidence that her abstinence would be maintained. The guardian says in his report at paragraph 16: 'experts in working with drug addiction and associated mental health issues wold normally say there needs to be a period of at least 6 to 12 months of abstinence in the community before they would start to feel more confident about maintenance'.

iv) The extent of the neglect that the child suffered when in her care and the likelihood that the same neglect would arise if he were to return to her care in the immediate future.

16. None of that rules her out in the long term as someone who may develop a full and important relationship with her son in the future. I hope that ray of hope will act as an additional beacon call to her in dealing with her difficulties.
17. The grandfather - he separated from his wife many years ago, has cared for the child with little assistance from other members of the extended family and has shown the child love and commitment. However, the Local Authority contends that there are these reasons why he cannot offer the child long term care:

i) The difficulty that the grandfather has shown in controlling the child's behaviour. The guardian says at paragraph 26 of his report: 'On several occasions, I have seen [the grandfather] with scratches to the face and head, where [the child] has lashed out at him. I have seen that [the grandfather] would try hard to set boundaries but at times [the child] would challenge them repeatedly, without [the grandfather] being able to carry through any real consequences…I think he has struggled with setting boundaries and ensuring that he remains in control of situations as far as possible, when [the child] will relentlessly try to take control himself'. This is the key reason advanced by the Local Authority and guardian. I accept that the grandfather does struggle significantly with the child's behaviour and finds it very difficult to keep control.

ii) He has little contact with his own family and little other community support. This is another important feature of the reasoning of the Local Authority and guardian and I accept that the Local Authority has established this point on evidence.

iii) The difficulty that he would encounter in regulating the mother's relationship with the child if the child were to be living with him. Given her wish to take over the care of the child in the fullness of time I accept that this could well pose difficulties for him in the future.

iv) The grandfather also has a history of drug addiction and criminality which, as he accepts, led to him being largely unavailable to his own four children when they were young. He still takes methadone but is drug free. He has 182 criminal offences recorded against him, many of which involved theft from shops; his last criminal conviction was on 19^th December 2013 [H119]. I accept that there is no evidence of any likelihood that he will revert to drug taking, that he appears committed to coming off methadone and, later, subutex and also that he has remained free from criminality for over 3 ½ years. He gives every appearance of having turned his life around although there is an obvious and long-term vulnerability that arises from his past, as Mr Morgan accepted in submissions.

v) He suffers from hepatitis C as a result of his history of drug taking leaving him with liver damage and also exposing him to a significant risk of liver damage. He was taking interferon before the child came to live with him but, because of its side-effects, he stopped taking it and is hoping to start an alternative drug regime with less side-effects. In his most recent short report the guardian says that he is 'less certain about the implications of [the grandfather's] health issues for his ability to provide permanence for[the child] . He does appear to be in good health and energetic for his age but at some point he may need further treatment for hepatitis and would certainly need help to detoxify from methadone / subutex'. I note that the letter from his Consultant Heptalogist states that, from a medical point of view 'there is no reason why his ability to undertake ongoing care of his grandson should be impaired in any way by his hepatitis C infection or its treatment'. Given the state of the medical evidence I do not think that his Hepatitis C is relevant to whether he could care for the child and ignore it as a factor.

18. In a statement filed very shortly before this hearing and dated 4^th August 2017 the grandfather says that:

a) The child has now been with him for a long period of time and is settled. He and the child have a strong relationship with each other.

b) He has attended parenting classes and has two certificates from doing so. He is prepared to learn. For a man in his sixties to have made these efforts speaks volumes to the credit of this grandfather in my opinion.

c) He has introduced measures to deal with the child's behaviour and, for instance, has now got the child potty trained.

d) Recent medical tests suggest that his liver is functioning reasonably and he has been told that he will be started on a new treatment with no side effects and a 95% success rate. At the hearing he produced the above letter from a consultant heptalogist to this effect (it is dated 4^th August).

e) He has regulated his own life.

f) He has the support of the mother and says: 'I know that she will understand if I have to explain the restrictions placed on her'.

19. The points that are made on behalf of this grandfather, by his skilled and committed counsel (Mr Morgan), are strong and well-argued. The grandfather has been very well represented. He has also been impeccably polite during this hearing and his love for the child shone through his evidence.
20. The social worker from the kinship team - She was the first witness that I heard. Her assessment was lengthy, taking place between November 2016 and April 2017. She made a large number of visits [C52b]. She says that she visited in June and also visited last Friday, 4^th August 2017 to see the grandfather's new flat. I found her evidence to be highly professional and deeply thought through.
21. She said that, at the beginning of the assessment, it was very difficult to have a conversation with the grandfather because the child was constantly seeking attention. Towards the end of her assessment she felt that the child remained a very challenging child in the terms of the attention that he needs from adults. On a one to one basis he works better but when there are two adults he becomes very attention seeking. It remains the case, she said, that the child is very difficult to manage. She says that the grandfather does not set clear boundaries and says things like: ', 'don't do that or you will get in trouble'; she felt that the child needs consequences to be made plain to him.
22. She accepted that the child's behaviour has improved but not to the extent that was hoped for. She recognised that her assessment at C52e, included a passage written by the allocated social worker which read: 'My observations of [the child] with [the grandfather] is that whilst his behaviour remains challenging, it is becoming calmer which indicates to me that [the child] is starting to feel increasingly safe and settled in the care of[the grandfather] '.
23. Her report at C52V records the views expressed by the nursery and the health visitor about the grandfather's ability to manage the child's behaviour. The nursery 'questioned [the grandfather's] ability to be [the child's] long term carer… the health visitor described her view of [the child's] behaviour towards [the grandfather] as exhausting for someone in his 60s'. She said, on Friday 4^th August, the child looked tidy and healthy but his behaviour remains challenging although, on that occasion, the grandfather remained calm and dealt with the behaviour appropriately.
24. She said that it was not really her position to assess the consequences of removing the child to new carers but she believed that foster cares would be trained to deal with children with challenging behaviour and would be far better equipped to care for him than the grandfather. Further, she said, the foster carers are a couple and will be able to support each other. Thus, she believes that the child's welfare will be better met in foster care.
25. She accepted that the grandfather has worked with the professionals concerned with the child. He has engaged with the nursery and also with the family support worker. There is quite an extensive support network around the child from professionals; it comes from nursery, a family support worker (who was not called in evidence by any party) from the nursery who helps him with domestic tasks and visits once a week, the social worker and the health visitor. When the child starts at school the nursery worker would not be involved further but, it would seem, some other forms of support could be offered.
26. She said that, from her assessment, the child's carers will need particular skills to cope with the child's behaviour and she doubted whether the grandfather possesses them. She thought that the child must have more than his basic needs met and she doubts whether the grandfather is able 'to work with [the child] in a reparative way to alleviate the early trauma and provide [the child] with good enough care for him to be able to thrive'. She thought that the grandfather had worked to the best of his abilities but did not think that he could meet the child's long term needs. She said that she agrees with the guardian's views that the child requires very skilled and therapeutic parenting which provides him with one or two adults closely attuned to his needs.
27. Overall, she said, this is a very finely balanced case and the grandfather has shown a lot of positives in his care of the child. She thought that on balance it was better for the grandfather to remain as a grandfather with contact rather than as the child's main carer.
28. Allocated social worker – She gave evidence of a very high quality. She said that she saw the child on Friday 4^th August and spent time with him on her own for about half an hour. She said that '[the child] is [the child]. You have to stay right on top of him. When the grandfather came in the child found it very difficult and started pulling down blinds, climbing on the table, tipping drinks, etc'. The grandfather reacted by telling him not to behave as he was but did not put in place boundaries.
29. At C87 she gave other examples of the difficulties that the grandfather has with the child. On one occasion the child took sweets out of the fridge despite the grandfather telling him not to do so. The child then ate the sweets and spat some of them out on the carpet and also at the social worker. The grandfather did not respond to this until he had to restrain him physically and was scratched by the child on his head.
30. When the child first lived with the grandfather his behaviour was very poor and there have been some improvements but they are not enough to allow the grandfather to be able to care for the child appropriately. The grandfather does play with the child and has done parenting courses but the positives are not enough to meet the child's needs.
31. She said that she accepted that separating the child now from his grandfather will be difficult and cause anxiety for the child. The child loves his grandfather very much and it has to be foreseen that the child may well react to removal with a resumption of his more extreme behaviour. However, it will be better for that to be done now in his long-term interests.
32. The nursery is still saying that the child still needs a large amount of one to one support and cannot be left with other children unsupervised. A recent example of his behaviour is that he urinated over another child. The child needs two carers, she said; it just would not be sustainable in the long term for one carer to look after him. He needs reparative care and the social worker does not think that the grandfather could provide what he needed even with Local Authority support. She accepted that the grandfather has done the best that he can but it is too much for him to care for the child in the long term.
33. She said that she has visited the proposed foster carers in June and then spoken to them three or four times since that visit. They have a lot of experience in the care of children with similar difficulties to the child, they also have an understanding of the issues that they are likely to face. They are experienced foster carers who have looked after children throughout childhood (right up to the time that they leave care). They are agency foster carers.
34. If the child remains with the grandfather the Local Authority could offer respite care. She said that she knows that the current family support worker would not continue to work with the child once he leaves nursery and, it appears, the school proposed by the grandfather would not provide a similar service. Further the health visitor would cease to visit once he goes to school.
35. If a care order is made it would not be sensible, she thought, to introduce the child to the carers before they go on holiday. The transition period would be put into effect from the time of their return and would lead to him moving to the foster carers within a week [C74].
36. She is concerned that the mother will want to have the child back in her care and that it will be difficult for the grandfather to regulate. She did not think that the grandfather would allow the mother to have contact with the child if she was under the influence of drugs. However, if the mother does show stability in the community it may well be difficult for him to prevent her seeking to be as involved with the child as she wished.
37. The grandfather's evidence - he said that he saw himself looking after the child as long as necessary and added 'until my daughter is better again'.
38. He said that he has just finished a parenting course which ended last Monday and that it helped him to get down to the child's level and play with him. He thinks that the family support worker has been a great help and that he had been given a lot of support from other parents at the nursery and from meeting other parents at places like parks.
39. He said that he has seen loads of improvements in the child and they work well together. He thought that the child is not far different to other children.
40. The guardian – he said that he has seen the child recently. It was a largely positive visit. He saw how, when outside, the child can be really quite delightful. During the visit, the grandfather stepped back and allowed the child to hold the guardian's hand. There was one occasion during the visit, however, when the child looked back at his grandfather and ran out into the road as if to deliberately test boundaries.
41. He said that this has been a very difficult balancing exercise and that he had tested his conscience carefully as to whether he was basing his recommendation based on middle class values of optimal parenting. Having done so he had concluded that his recommendation should remain the same, being very much based on the medium and long-term. He said that he has tried to weigh up very carefully the potential emotional harm to the child from moving to foster carers and not living with his grandfather. He thinks that the contact that the child will have with the grandfather will be very important.
42. The guardian said that he has seen aggression from the child at a level that he has rarely seen before. He did not think that any package of support or services could be put in place to support the grandfather in caring for the child adequately. At E6 the guardian said: 'The guardian has observed the child operating on an extremely high level of anxiety which quickly finds outlet through chaotic or aggressive behaviours. The Guardian would say that the child presents as one of the most troubled children of his age that he has worked with'. The guardian said that this was the position after there had been a particularly difficult visit to the home – however, the child's behaviour still remains deeply troubling and too much for the grandfather to manage.
43. Law – In this case it is agreed that the threshold criteria in section 31 of the Children Act 1989 are fulfilled and, therefore, the case moves on into a welfare analysis taking into account the Convention rights that exist. The Convention rights in question are, of course, the rights under Article 8 of the European Convention on Human Rights – I will not cut and paste the Article into this judgment since it is an everyday tool used by judges at my level and I am sure that it can be taken that I know it like the back of my hand. At the outset of the case I raised the need to express the legal approach to the issues in this case correctly.
44. It is agreed that the following passage from the judgment of McFarlane LJ in Re W (a child) [2016] EWCA Civ 793 sets out the law:

•    'it is clear to me that both the Children's Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A's future welfare by affording due weight to all of the relevant factors and without applying any automatic "presumption" or "right" for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a "right" to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A's best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option "a runner" but should not automatically make it "a winner" in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that "if a family placement is a 'runner', then it has to be regarded as a 'winner'".

•    71. The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

•    '89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

•    94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the 'presumption' that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child's welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child's welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a 'presumption' in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.'

45. In this case it is accepted, of course, that the grandfather and the child have an established family life together. They have lived together for ten months and for nine of those months that has been under a child arrangements order. I must therefore ask myself whether the Local Authority's care plan is:

i) Necessary for the protection of the welfare rights of the child.

ii) Proportionate to the proven facts of the case.

iii) In accordance with our Convention compliant law, which is to be found in section one of The Children Act 1989 under which the welfare of the child is the paramount consideration. In applying that law I must avoid a linear approach to the analysis of welfare and should do that by setting out a balance sheet of the salient relevant welfare factors and should apply the welfare checklist in section 1(3) of the 1989 Act.

46. Key balancing factors – In my opinion the main pros in favour of the grandfather's position are these:

i) He has an existing attachment, commitment and love for the child.

ii) He offers the child the only possibility of an upbringing within his natural family.

iii) If the child remains with him it will preserve the status quo and avoid the major disruption of the change of circumstance that would arise from the Local Authority's plans.

iv) He is a known quantity unlike the foster carers in the sense that the benefits and detriments of his care are known whereas the care of the foster carers care is not yet tested in relation to this child.

v) He is doing his best to acquire parenting skills and listens to advice.

47. As to cons:

i) He has great difficulty controlling the child's behaviour and, as the child gets older this is likely to be an increasing problem.

ii) He has little support from family or close connections. Although he would accept respite care and would also accept Local Authority support, he remains an isolated figure and much of the child's care would be on a one to one basis.

iii) Although he listens to advice he has difficulty implementing it.

iv) There is a genuine risk that his care of the child may be disrupted by the mother when she comes out of custody.

v) He does have a past which has many vulnerabilities in it. This may affect his ability to cope in the long-term with the challenges of the child.

48. In relation to the foster carer proposal there are these main pros:

i) They are trained and experienced carers of children who have a clear understanding of the demands that the child will impose.

ii) It is more likely, in the medium and long term, that they will be able to regulate the child's behaviour.

iii) They are supportive of the grandfather's contact.

49. As to cons:

i) They are not family members and, if the child is placed with them he will face the stigma of being a child in care.

ii) The transition will not be easy and, in the short term, there is likely to be considerable emotional reaction from the child when he is removed from his grandfather.

iii) The child will be dividing his time between the grandfather and the foster carers whereas, if he remains with the grandfather, there will be one single family carer.

iv) As Mr Morgan put it: 'the natural affection of grandfather for his grandchild may not be replicated within the foster home'. One cannot assume that every foster carer will always attach to every foster child who comes into that foster carer's home.

50. Welfare checklist analysis – On the evidence that I have heard I have to accept that the grandfather is not able to meet the medium and long term emotional needs of the child , despite his profound wish to do so. I have thought about that conclusion very carefully and have been driven to conclude that the evidence of the two social workers and of the guardian substantiates this on evidence. I think that there is a very significant risk that, as time goes on and the child gets older and stronger both in will and body, that the grandfather would not be able to contain him. I accept that the child needs the care of two adults with special parenting skills and experience and that the foster carers are most likely to be able to give him this.
51. I accept that a change in his circumstances will have a very material effect on him. He will lose the home with his grandfather that he has known for ten months and to which he is accustomed. However, given his age, any such change needs to be made now. To make it later, when the placement with the grandfather breaks down as it might very well do, would cause considerable harm to the child and would make it very difficult to place him in foster care at all.
52. It is necessary to carry out a balance of harm – on the one hand the harm that would arise from leaving in his current placement and, on the other hand, the harm from moving him. On balance and on the basis of the evidence that I have heard, the greater harm would arise from leaving him with his grandfather. I find that, through no fault of this grandfather, too much damage has been done to the child's emotional welfare for this kind grandfather to be able to offer him the care that he needs despite his wish to do so. The damage that has occurred is not the fault of this grandfather who has done everything that he can to mitigate it.
53. It is in no way the fault of the grandfather that the child is as challenging as he is. I accept that considerable damage must have been done to his emotional welfare before he came to the grandfather's care. However, things being as they are, I have to accept that the grandfather does not have the capability to meet his needs in the medium and long term. I recognise that making judgments based on the medium and long-term is not a precise science; it involves a very difficult judgment call and, in the end, that is what judges are paid to do. In making that judgment call I have recognised that the future of the child in foster care is not tested and that foster care is not a panacea – it cannot be viewed through rose-tinted glasses.
54. That being so I find that it is necessary, proportionate and in the paramount interests of the child for me to make a care order on the basis of the care plan. The care order will come into effect on 31^st August 2017 and can rest on the court file until then.
55. I regard the contact that the grandfather will have with the child will be an essential part of the care plan. I make the care order on the basis that I have been told by the Local Authority:

i) It is committed to maintaining that contact.

ii) It has discussed the proposed arrangements for contact with the foster carers and they are committed to those arrangements as well.

iii) Staying contact will take place on alternate weekends for at least one night.

iv) There is a committed intention that there will be additional staying contact during school holidays (including half terms).

v) There will be a formal review of the contact arrangements in October 2017 with the intention that additional staying contact will take place by at least the commencement of the Christmas holidays but preferably during the October half-term.

56. In the event that those contact arrangements are not put in place I anticipate that there will be an application listed before me under section 34 of The Children Act 1989 for me to deal with the issue by way of order.
57. I also expect the issue of the mother's contact to be kept under review. If, as I very much hope is the case, she is able to settle into the community following her release, I do not see why there should not be a review of whether she should have contact in December, prior to Christmas. There should also be a very clear written record of the arrangements for the grandfather's contact and the expectations that are placed upon him about any attempt by the mother to see the child when it is taking place.

HHJ Stephen Wildblood QC

8^th August 2017.