England and Wales Family Court Decisions (other Judges)

IN THE BRISTOL FAMILY COURT

		2, Redcliff St, Bristol. BS1 6GR
		6th August 2014

HHJ Wildblood QC :

1. Introduction – I am releasing this judgment for publication in this anonymised form for reasons that I state at the end of it. It is an example of what happens where inadequate welfare evidence is filed and where case law and statutory authority are ignored. Since the case will continue, I have removed the names of the Local Authority witnesses and of the guardian as well as the names of the child and all family members.
2. By an application made on 3^rd April 2014, the local authority seeks a care order in relation to Ch who is aged 3 having been born on 24^th February 2011. The authority recently applied also for a placement order and an order dispensing with the mother's agreement under section 52(1)(b) of The Adoption and Children Act 2002. Ch's mother, who is aged 39 having been born on 12^th July 1975, is M; she lives on her own. His father, who has parental responsibility for him and is aged 43 having been born on 11^th February 1971, is F. His guardian is G. F does not oppose the Local Authority applications and does not support the return of Ch to the care of M. M opposes the Local Authority's applications and seeks the return of Ch to her care; she would agree to the making of a supervision order and agrees that the threshold criteria are fulfilled in the terms of a document that has been agreed at the bar.
3. On paper the guardian supported the Local Authority's position. I have great respect for G who is a very experienced guardian but I am afraid that I do say that his report involved a linear analysis (and I invited him to consider overnight a more holistic approach to the issues before the court before he gave evidence). He accepted in his oral evidence that his report 'might not be his best piece of work' and a reading of his report would confirm that to be the case. By the time that he gave evidence his opinion was that this case is finely balanced, that there would be no basis upon which rehabilitation to the mother could be refused if she maintains her current lifestyle and there is a realistic prospect of her doing so.
4. This is a case in which all parties suggest there are only two possible options. They are rehabilitation to the mother or adoption. Nobody suggests that, for this child, long term fostering is a realistic solution. This case reveals desperately sad aspects in which a mother suffered severe abuse from her natural family as a child, was then herself adopted (being placed with the adopters prior to adoption, when she was only slightly older than Ch is now) and, ever since her early teens, has struggled with the vulnerabilities that her early years caused her.
5. Ch is this mother's fifth child and none of her minor children remain in her care. Over the course of the past year the mother has made real efforts to combat her alcoholism, to stop making relationships with abusive men and to achieve a stability which is previously unknown to her. Her case is that she has succeeded to an extent that renders the Local Authority's applications disproportionate and wrong. The Local Authority contends that, in context, the improvements made by the mother are recent, the mother remains very vulnerable and there is a high likelihood that the previous patterns of her behaviour will be repeated in a way that will render her unable to care for Ch.
6. Ch has been accommodated by the Local Authority under section 20 of The Children Act 1989 since 18^th August 2013, following removal from his mother's care by the police under Section 46 of the Children Act 1989 after the mother had found to be intoxicated and unable to care for him. The proceedings were not issued until 3^rd April 2014 by which time Ch had already been accommodated for eight months.
7. This is exactly the sort of case where linear analysis must be avoided. Since I had to explain to some what that meant (sic) during the course of this hearing, let me set out what was said by MacFarlane LJ in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

8. Specific criticisms of the Local Authority - I am critical of the Local Authority for not issuing proceedings earlier and for its use of accommodation for this amount of time under section 20 of The Children Act 1989; the effect is that Ch has been in temporary foster care for a year. Having delayed that long before issuing proceedings it then produced inadequate analysis of Ch's welfare.
9. I consider that much of the welfare analysis of the Local Authority (and, in his report, the guardian) has been linear – see e.g. C128 which I can only describe as giving a scant and superficial consideration of the factors in section 1(4)(c) and (f) of the 2002 Act. That inadequate analysis is made even more deficient (and is indeed contradicted) by the subsequent analysis of those statutory factors in the same statement at C131 and C132. The passage at C128 that adoption 'would be difficult for him due to his age and high level of contact and strong relationship bonds with his parents and extended family' became at C132 'Due to Ch's age and placement in foster care Ch is likely to have [only] limited memory of his birth family'. How can one author commit herself to such contradiction within the space of four pages?
10. When I asked 'Where is the written evidence from the Local Authority of the services that it would provide to the mother if Ch were to be rehabilitated to her?' I was told that there was not any. Further, I was told that there has not been discussion between the Local Authority and the guardian about the support services that might provided. That is not good enough. Of course, evidential deficiency may be partially remedied by oral evidence at a hearing; however, where the Local Authority documentary analysis fails to consider what might be done to support the mother it means that it has ignored the requirements of proper case preparation and has engaged in analysis that is significantly lacking. Thus its own processes of analysis are deficient. The case that this Local Authority needs to read and absorb is that of Re W [2013] EWCA Civ 1227. Paragraph 101 includes the following passage from the judgment of Ryder LJ: 'The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court's evaluations'.
11. Further, oral evidence cannot provide the sort of joined up thinking that a Local Authority must be expected to conduct when deciding whether supported care by a parent is feasible. In other words, this Local Authority should have engaged in full discussion and analysis with potential agencies of support in order to formulate its care plan. That simply has not happened. I regard that evidence of services and support to be particularly important in a case where there is clear evidence of progress by the mother in relation to the core issues of 'concern'. The guardian's oral evidence was that 'there is a do-able package of services that could be put in place that would sufficiently monitor the mother's care of Ch if she maintains her current lifestyle'.
12. As will be apparent from this judgment the Local Authority sought the opinion of a psychologist, Dr Hobson, in its pre proceedings process. Dr Hobson identified three core matters that the mother needed to fulfil if rehabilitation were to be considered: i) She needed to sustain good contact; ii) she needed to address her drinking and iii) she needed to avoid volatile and violent relationships. The guardian's evidence was that the signs on these issues are now 'good'. No consideration appears to have been given to returning to Dr Hobson for him to express an opinion about the prognosis of the mother sustaining the progress that she has now made. Further, having obtained that report for very good reason in the pre proceedings stage, the points that he identified in his report required focal consideration; they have not had it within the documentation.
13. The guardian said that it would be helpful if Dr Hobson's further views were sought before reaching a conclusion; to that possibility of further evidence should be added the need for the Local Authority to produce a proper care plan after proper consideration of the services that it might provide. The guardian regarded that further evidence could be provided within the timescale of Ch, given the delay that has already occurred. When asked whether he recommended that the case should be adjourned for that further referral to Dr Hobson to be made, he said 'that would be very helpful, yes'.
14. I consider that the analysis of the relationship between this mother and Ch is manifestly inadequate. Beyond the inherent contradictions within the comparison of C128 and C132 (to which I have already referred) there is simply no proper analysis of Ch's current relationship with his mother within the Local Authority's final checklist analysis (see C132) or, indeed, within the parenting assessment.
15. Finally it should not be for the judge at a final hearing to raise the following questions and create consideration of them:

i) If the mother does sustain her current lifestyle, is there any reason why she should not care for her child?

ii) Is there a realistic prospect of her maintaining her current lifestyle?;

iii) Is there a feasible package of support that could monitor whether the mother does sustain her current lifestyle?

16. Re B and Re B-S – The case of Re B [2013] UKSC 33 lies at the heart of the jurisprudence concerning the making of care and placement orders and is thus of fundamental importance to this case. Ch should not be deprived of the right to an upbringing with a natural parent unless, as a last resort, there are exceptional circumstances demonstrating that no other solution compatible with his welfare is available. Of the dicta in Re B the President, Sir James Munby, said as follows in Re B-S [2013] EWCA Civ 1146: 'The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215 [22]'.
17. The Local Authority – The Local Authority has had a long standing involvement with this mother. From 2006 to 2010 it was involved as a result of the neglectful upbringing that she was giving to her four other children, all of whom left her primary care during this period or earlier (as I describe later). When the Local Authority learnt that the mother was pregnant with Ch it initiated procedures that led to the creation of a child protection plan concerning him on 7^th February 2011 (some seventeen days before his birth). It did so on the basis of the mother's long term alcohol misuse, the mother's neglect of her other four children, the parents' volatile relationship, the father's long term substance misuse, his history of violence and his conviction for cruelty to a previous partner's child (who died in November 2000).
18. The Local Authority carried out a core assessment of the parents, which was completed on 26^th January 2012. It concluded that the parents' home life and relationship were very different from the past and that there were no indicators of heavy drinking or other issues that would justify intervention. As a consequence the Local Authority 'closed the case' on 29^th March 2012. In her evidence M said that she and F deliberately misled the Local Authority during that core assessment. She accepted in evidence that she had been drinking at the time of the core assessment contrary to the impression given to the Local Authority then, although she suggested in evidence that her drinking had not been at a 'problem level' then. However, she did accept that she did not tell the social worker that F was being repeatedly violent to her and was smoking cannabis regularly and thus the Local Authority was given a false impression of the household and its functioning. She said in her evidence that she misled the Local Authority because F threatened to take Ch away from her and to get his family to beat her up. Thus Ch remained in the care of the parents without Local Authority involvement notwithstanding the mother's heavy drinking, the father's frequent use of cannabis and the domestic violence that was occurring between them.
19. On 27^th July 2012 a serious incident of violence occurred between the parents when the mother was holding Ch; as a consequence the parents separated, the father was prosecuted for assault occasioning actual bodily harm (for which a suspended sentence of imprisonment and a restraining order for two years were both imposed) and the Local Authority once again became involved. However, once again the Local Authority 'closed the case' in November 2012 being satisfied that the mother was caring for Ch adequately and F was not having contact with Ch following separation.
20. Once again the level of the mother's drinking was not apparent to the Local Authority. During this period after the separation, M was living alone with Ch and, according to her own evidence, was drinking very heavily indeed (two bottles of wine and two litres of cider a day). She said in evidence that she was drinking that amount because of the emotional pain of being on her own and out of a need to hide her own distress.
21. Nine months after the Local Authority closed the case the incident occurred on 18^th August 2013 which resulted in Ch being accommodated by the Local Authority. The mother was discovered in a state of drunkenness, the home was unclean, Ch was in a state of neglect and a man was present in the home whom the mother said that she had met that day. There can be no doubt whatsoever that this was no environment for a child of this age to be living, as M herself accepted in evidence; she was in no fit state to care for him and, on the evidence that is now known, had been in no fit state to care for him for a long time.
22. Rather than bring the case to the court the Local Authority then engaged in a very slow moving non-court based process for the next eight months. As part of that process it commissioned the report from the psychologist, Dr Christopher Hobson. His report, which is dated 10^th January 2014, recorded that the mother is a woman of average intelligence (an IQ of 101) and, save for a moderate alcohol use disorder (as he described it), did not meet the criteria for any mental disorder. However, he also concluded that, as a result of her abusive upbringing, she had a tendency to form unsatisfactory and violent relationships. He felt, with obvious good cause, that her background left her unable to prioritise the welfare of her children at that time. He thought that the main changes that she needed to show were to abstain from alcohol and avoid violent relationships. He felt that there were some positive indicators in relation to those changes. In paragraph 7.25 of his report he said that any return of Ch to his mother must depend on the quality of her contact with him, her ability to refrain from alcohol consumption and her avoidance of violent relationships. He thought that she should engage in courses to assist her with her social stabilisation but that such courses need not necessarily be completed before rehabilitation of Ch might be considered.
23. Following the issue of proceedings the Local Authority filed a parenting assessment of the mother, dated 15^th May 2014. It is at C48 and was written by the social worker, 'SW1'. In the conclusion of the report SW1 said that she accepted that M loves Ch and wants what is best for him. However, she regards M as a vulnerable individual who is likely to be manipulated and easily influenced. SW1 stressed the extent of the neglect that Ch had suffered in his mother's care and his consequential developmental delay. She thought that, although M had met Ch's needs during supervised contact, she would not be able to sustain that care in the community. Thus she did not support the rehabilitation of Ch to the care of M.
24. In her final statement at C115 and dated 23^rd June 2014 the social worker purported to carry out further analysis of the evidence and expressed the recommendation at C135 that care and placement orders should be made. She said: Throughout the period of these proceedings, both M and F have not made the necessary changes to demonstrate that either of them would be able to provide safe care and protection from risk of emotional harm and neglect. It is accepted that both of the parents love Ch but neither of them is able to prioritise his needs above their own individual needs. …it is vital that Ch is given the opportunity to enjoy security and stability within a permanent placement where he is protected from harm, kept safe and that his emotional and physical needs are met'.
25. The mother – M had a very sad and deprived upbringing. She suffered very serious neglect (e.g. she says that she was starved by her mother and ate dog faeces), physical mistreatment and sexual abuse as a child. As a result, she came into care at the age of four and was adopted at the age of 10 by a Mr and Mrs X. Her adoptive mother, who she remembers fondly, died in 2003. She regards her adoptive father as having been distant and frightening causing her to feel rejected and unwanted. She began drinking at the age of 14 [G66].
26. At 16 she ran away from her adoptive home; she says that she associated with a group of people, was 'plied with alcohol' and then 'severely raped' in a park. She was then received into Local Authority accommodation for a short period before leaving to move in with her first partner, Mr A, who is ten years older than her. He was violent to her (she says, for instance, that he broke her leg when she was 8 months pregnant).
27. Her next relationship lasted for ten years and was with a B, whom she married; she told Dr Hobson that B was violent to her about once every two months [G65]. In evidence M said that her drinking increased when this relationship ended as she had loved B and, she said, it was at this time that her drinking became 'a problem'. The next relationship was with C in about 2005 [A21] who was very violent to her; that relationship lasted for a few months only and did not produce any children.
28. Then M had a relationship with a D; it was volatile (she said that she was the most volatile of the two within that relationship) and lasted for three years; her drinking increased during this relationship, she said. She told SW1 as part of the parenting assessment that the relationship was 'characterised by violence' and that they both drank alcohol [C63].
29. When she was aged 34 she and F began their relationship; they did not been marry although F has parental responsibility for Ch through being named on the birth certificate.
30. She has four children besides Ch. They are:

i) Y, who is aged 21 having been born on 15^th March 1993 and whose father is A. When Y was aged 3 she moved to live with Mr A; M apparently felt that she could not cope with Y and Z (then aged one) [C62]. Eight years later, when Y was aged 11, Y returned to live with M [C62]. In 2009, when Y must have been aged 15 or 16 [C63], she was accommodated due to the mother's alcohol misuse and inability to care for her. Later, in August 2009 Y revealed that she had been sexually abused by Mr A for which he was apparently convicted in December 2010. M now sees Y often;

ii) Z, who is aged 19 having been born on 14^th June 1995 and whose father is also A. He was cared for by Mr A from the age of about 12 months [C62]. Following Mr A's conviction Z spent a short time in foster care before becoming independent;

iii) AA, who is aged 14 having been born on 16^th August 1999 and whose father is B. He went to live with his father (the date of this is not clear but it appears to have been some time after 2004); M told SW1 that this was because AA 'wouldn't do a thing he was told' and, the mother suggested that she was drinking excessively at the time [C63]. M said that her drinking increased further when AA left her care;

iv) BB who is aged 7 having been born on 7^th July 2007 and whose father is D. She went to live with her father in 2009. M told SW1 that this was because 'one night when she was visiting her brother with BB she got hammered whilst BB was in her care…Initially M reports to have had contact with BB supervised by a neighbour however the contact stopped and she cannot remember why'.

31. Since Ch has been accommodated the mother has given an account of her relationship with F prior to their separation in which she say that he was repeatedly violent to her and smoked cannabis on a daily basis. The father has given a different account, alleging that the mother was violent to him, abused alcohol and smoked cannabis. At C84 the father is recorded as alleging that the mother continued to drink when pregnant with Ch; M accepted in evidence that she had done so.
32. By the time that Ch was accommodated, therefore, in August 2013, F had not seen Ch for 13 months and M was drinking very heavily. It was in September 2013 that she began attending the Alcohol Recovery Agency and continued to attend that service until April 2014.
33. M says that, by the end of November 2013 she had brought her drinking under control. She says that she has abstained from alcohol entirely since November 2013 save for three occasions. The first occasion was on Christmas day in 2013 when she says that she had some wine. The second occasion came to light on Monday 31^st March 2014 when the social worker, SW1, visited her, smelt alcohol on her breath and asked her whether she had felt tempted to have a drink on the previous day as it was Mothering Sunday (Sunday 30^th March). Initially M said that she had not had a drink but then said that she had drunk a couple of glasses of cider on Mothering Sunday. The social worker was concerned that she could still smell alcohol on the mother's breath on 31^st March 2014 when the drink had apparently been consumed the day before.
34. The third occasion was on 27^th May 2014 when M was told by the social worker that the Local Authority would recommend adoption for Ch; M says that she drank 2 ½ pints of beer and then she and a friend consumed a bottle of vodka together. SW1, the social worker accepted that M volunteered the fact that she had consumed alcohol on 27^th May without prompting when they met on 17^th June 2014 (this appears to have been the first meeting between the social worker and the mother after 27^th May).
35. Attempts were made to see if scientific evidence could be obtained as to the level of the mother's drinking. There is a report from Claritest dated 23^rd May 2014 and written by a Timothy Goldstein. His report concludes that there is evidence of excessive alcohol intake by the mother from the end of October 2013 to the end of April 2014 but, Mr Goldstein says, the indications are 'she moderated and possibly discontinued consumption of alcohol approximately 3 or 4 months ago'. That would mean that alcohol consumption was moderated or discontinued in about January or February 2014. Therefore no party sought to argue that there was anything in that report that contradicts the mother's evidence.
36. There is a further report from Claritest, dated 31^st July 2014. In a letter dated 1^st August 2014, David Berry of that organisation explained that report by saying that the 'results of the test could arise following consumption of alcohol by the donor on only a few occasions during the time frame under investigation'. The time frame under investigation was mid April to mid July 2014. Again no party sought to rely on that evidence as a means of contradicting the mother's evidence.
37. The only report of M being in a relationship since her separation from F relates to a relationship with a man that she met in January 2014. It lasted for two weeks apparently. M accepted in evidence that it was extremely unwise for her to have formed this relationship. In fact, she said, she became engaged to this man during those two weeks.
38. SW1, the social worker, thought that the mother had very limited family support. M said that she sees Y frequently and also has regular contact with her sponsor and her sponsor's sponsor.
39. M's current courses and support- M attends Alcoholics Anonymous three or four times a week and has attended a number of courses. The courses include:

i) A course run by the Alcohol Recovery Agency ('ARA'), which she completed in April 2014 and was given a certificate to signify that she had done so successfully. There is an undated letter from a volunteer counsellor with that service, recording the mother's involvement with the service; the letter was written sometime after the mother completed her involvement with the service in April 2014. M says that she did not tell ARA about the drinking 'occasion' that she had on Christmas day but did tell them about the 'occasion' on 30^th March (although this was not referred to in the letter and the letter was plainly written after 30^th March);

ii) A 'Key to change course' which ran for 12 weeks and related to domestic violence and ended at the end of July. The evidence from the social worker was that M worked very well within that course. M is waiting to be put on a follow up course called 'My Kids and Me', which deals with the effect of domestic violence on children;

iii) An 8 week 'Positive Steps' course in relation to 'low mood' which M has completed in July. She started on a follow up course about anxiety management on 24^th July 2014 [C139]. The social worker's evidence was that there has been good engagement with these courses and that M attended the sessions appropriately.

40. Typically of someone who has been addicted to alcohol there are reports in which the mother has not recognised the impact or level of her drinking. For instance at G76 Dr Hobson records: 'M demonstrated a basic and rather unsophisticated view of the effect of alcohol abuse on her parenting, in terms of how the abuse led her to be unable to provide materially for the children, and that it might have led to her being depressed and therefore 'less enthusiastic' with her children. However she did not refer to how it has most probably damaged the quality of her relationship with her children, did not chose to comment about how the children might have felt about her drinking habits and dismissed the idea that a heavy night of drinking would impact upon her care of the children the following day'. The guardian records at E43 following a meeting in July 2014: 'M stated to me in interview: 'I don't think my drinking affected him (Ch). He would only see me drink a wine at meal time'. M then drank after he had gone to bed. M claims she never became drunk but simply drank to relax'.
41. In her evidence SW1 accepted that, during her involvement with the mother (February to June 2014), she was alert to any signs that the mother had been drinking and she had also spoken to the other agencies who had been dealing with the mother to see whether there was any suggestion that the mother might not be abstinent. Other than the incidents on Mothering Sunday and 27^th May there is no evidence of the mother having consumed alcohol this year.
42. M said in oral evidence that, before Ch was accommodated, she could not remember when she had last been abstinent from drink. Prior to working with the Alcohol Recovery Agency in September 2013 she had not done any work in relation to her alcohol intake save for part of a course with that agency (which she did not complete); she had started on that course after BB left her care in 2009.
43. The father – F works as a self employed painter and decorator. He did not attend the hearing apparently because of the continuing existence of the restraining order which prevents him from having any contact with M; it was not suggested that arrangements should be made for him to participate at the hearing other than through the presence of his solicitor, Ms Ferrari.
44. F has one elder child who was adopted in 2002 following care and 'freeing' proceedings. A risk assessment relating to him was carried out by a Local Authority social worker. On 10^th February 2014 that social worker wrote his report recording that F had not co-operated with the assessment and recommending that he should not have any unsupervised contact with Ch. As matters have turned out, F has not seen Ch since he separated from M in July 2012 apparently.
45. Ch – Ch was seriously delayed in his development when he came into Local Authority accommodation. At the age of 30 months he was functioning as a 15 month old child. His behaviour was challenging and aggressive. His ability to integrate socially was poor. He would grab at food and search through the bin for something to eat. The guardian says that Ch remains indiscriminate (in the sense that he will go to anyone), does not react to pain as most children would (e.g. when a gate fell on him he did not cry) and can still exhibit very challenging behaviour.
46. For most of the time since August 2013, M has had contact with him twice a week with each session lasting for 1 ½ hours. However the contact has recently reduced to once a week to fit in with Ch's nursery routine. Although she missed 11 out of 49 contact sessions prior to February 2014 she has attended regularly since then. The guardian reports positively about the contact that he observed and recorded that 'Mother has a relaxed ability and understanding of Ch, who enjoyed himself'. The contact supervisor also reports positively about the mother's contact.
47. If Ch is placed for adoption, it will mean that he will have to move to new carers. His current foster carers cannot keep him. A number of members of the extended family have been assessed to see whether they might care for him but the assessments have all been 'negative' [C122]. In the event of an adoptive placement the Local Authority care plan proposes that both parents should have 'letterbox' contact only.
48. SW1, the social worker, said that she accepts that the mother expresses herself as having a closer bond with Ch than with her older children. She said that she accepts that M 'adores' Ch.
49. Guardian's report and evidence summarised - In his report the guardian says that he regarded the risk of M relapsing to be too great and the consequences for Ch if she did relapse whilst he was in her care would be 'catastrophic'. The guardian considered that Ch needs 'absolute certainty' for his future care. Given his 'learning issues' the guardian considered that he needs 'a placement where a significant amount of time and stimulation can be devoted to him'.
50. In evidence the guardian said that the mother has a long standing addiction to alcohol and, he thought, is in the first stages of rehabilitation. There have been three occasions when she has consumed alcohol since the end of November 2013 but for someone with this history of alcohol abuse to achieve complete abstinence immediately would be unusual; the important thing is the extent to which she works with professionals to address the addiction. He thinks that M has sought out the support that is available to her and has moved on considerably. It was clear in April that she was engaging and was taking appropriate steps to combat her difficulties and has continued to do so.
51. The difficulty for the mother is the underlying reason for her abuse of alcohol. Even with the mother accessing support there have been times when she has resorted to alcohol. In his final report at E41 he identified the risk issues – domestic violence, alcohol abuse, previous children not in her care, F convictions, concern in expert assessment of mother's ability to change and ability to work with professionals. He said that he is particularly concerned about the underlying reasons for the mother's vulnerabilities which will take a long time to address.
52. He said that he was unsure about the ability of extended family members to support her with her alcohol abuse. They would be in a very difficult position to know the extent of any alcohol consumption and also, if the mother did consume alcohol, what should be done about it.
53. If the mother went back to the previous lifestyle it would have catastrophic effect for Ch if he were to be in her care. There was no sustained involvement by the Local Authority in the family life prior to Ch's accommodation in August 2013, which is startling he thought and I agree.
54. The developmental delay and behavioural difficulties that Ch displayed when he was first accommodated were stark; they are described in full at E3f. Ch now enjoys going to nursery; the continuation of nursery would involve a degree of monitoring of his development if in the mother's care, to an extent. The mother could engage in parenting courses and in supervision by the Local Authority which would also provide some degree of monitoring.
55. Failed rehabilitation would be catastrophic for Ch. The foster mother speaks of Ch's difficulties to make attachments; she says that he is not as attached to her as might be expected. His behaviour remains challenging. The guardian accepted that this could also have implications for his successful placement for adoption. He thought that Ch needed permanence.
56. He thought that the mother wants to work with other people. He thought that a family support worker could work with the mother; that would unravel if she started drinking again or formed a relationship that was as unstable as her past relationships. There would need to be spontaneous testing of whether she was drinking; that could not go on forever and would need to go on for six months. The longer the mother stays abstinent the better the prognosis. It would be crucial that she should address some of the underlying psychological issues that lie behind her difficulties and it would be beneficial for her to obtain therapeutic assistance.
57. He was concerned about the mother's understanding of the effects on Ch of her drinking (as he stated in his report). Further, the issue is not so much about her understanding the effect of her drinking; the important thing is for her to address the underlying causes for her vulnerabilities. M is already on the path of dealing with these difficulties. If the Local Authority could offer random testing, nursery, family support worker and family network it might need more time to see if she can look after Ch.
58. If pressed today he would say that as matters stand the risks are too great for Ch to be rehabilitated. However, if the mother continues to maintain her progress this may tip the balance in the other way. More time would be helpful.
59. He would not support a move of Ch to his mother at present. If Ch can stay with his current carers and mother continues her good work he would support that being considered. There would have to be a very tight package of support and M would need to know exactly what it was that she should be doing.
60. Family monitoring could only play a limited role in monitoring the mother's care of Ch. Local Authority supervision could not be constant. The mother is an experienced alcoholic and so would know how to conceal drinking. An adjournment of 4 to 6 weeks would not tell us much more but it may be helpful since it would allow Dr Hobson to comment further on his perception of the risks. Adjourning for six months (or any lengthy period) would not be appropriate. If we want an opinion of whether the mother has shifted in her psychological functioning Dr Hobson is the person to ask.
61. He said that this is a finely balanced matter. There is a long history. The mother is strongly committed to Ch. Adoption, particularly for a child of this age, has its own drawbacks, not least due to the sense of loss to him of his natural family and the loss of identity and sense of origins. I asked him specifically: 'Is there a realistic possibility that this mother might be able to care for Ch?'. Weighing up matters as they currently stand and comparing the risk of him going home and the inherent negatives of adoption, the potential damage of going home outweighs the detriment of adoption as matters currently stand, he said. Adoption would give him the opportunity of an integrated and secure family life. In answer to questions from me the guardian said that there is a realistic prospect, on the evidence before the court, of the mother being able to sustain the changes that she has made. There is a risk that she may not do so. If she does sustain those changes there would be no reason why Ch should not be rehabilitated to her. He said that M is strongly motivated to sustain changes and to care for Ch.
62. He did not rule out entirely the prospect of direct contact at a very low level (once or twice a year) if Ch is placed for adoption. He would not support contact for F at this time but if Ch were to be rehabilitated to the mother he would not be opposed to the father having some contact with him.
63. Other oral evidence During the course of this hearing I have heard further oral evidence from the following:

i) SW2, the current social worker for Ch (since 26^th June 2014).

ii) SW1, the previous social worker who carried out the parenting assessment at C48 and wrote the final statement on behalf of the Local Authority at C115.

iii) M, the mother. Her statements are at A13 and C137.

iv) The guardian.

64. SW2's evidence did not add anything to the case. She had not filed a statement and was called so that she could be cross examined about why she, as the social worker, had not been in contact with the mother since assuming her role on 26^th June 2014. She said that she attempted to telephone the mother on about six occasions by using her mobile phone number (although she had only logged one such attempt – failed contacts, she said, are not always logged). Quite rightly SW2 accepted that she should have made more effort to contact the mother (such as by text message, letter to the mother or letter through solicitors).
65. SW1 –Her evidence was directed to repeating the grounds for the Local Authority's applications. She said that, given Ch's level of need and the mother's background, she is concerned that the mother may turn to drink in the future when pressure arises. She does not think that a supervision order would be workable. She did not feel that M is honest with the Local Authority about her drinking and her circumstances – she referred to the degree of neglect that Ch suffered when with the mother and the delay in it being revealed that the mother had consumed alcohol in March and May 2014. To that must be added the false information that was given to the Local Authority when M and F were together.
66. SW1 accepted that there has been really good contact between the mother and Ch. She was taken through some of the contact notes to reinforce the quality of contact; she accepted that, during the contact the mother showed warmth, stimulation, good interaction, boundary setting, emotional regulation and safety awareness [I80]. SW1 also said that she had seen a big improvement in the mother; M has attended contact sessions, she has been engaging in courses, she has not been engaging in excessive alcohol consumption and appears not to have engaged in violent relationships with anyone.
67. However, SW1 felt that it is early days in her recovery and that the mother had started to engage with the Local Authority six months ago in February. She said on the basis of the mother's history that she believed that Ch would suffer harm in the mother's care and that there was too great a risk of the mother relapsing.
68. If a placement order were to be made the question of whether there should be any direct contact between mother and Ch would depend on how the adopters viewed the issue, SW1 thought. She accepted that the mother has not undermined the current foster placement and had behaved appropriately in the current contact sessions.
69. M – I have already made reference to the main parts of her evidence.
70. Law - I remind myself of the following principles of law:

i) I must apply the relevant statutory and Convention provisions and must do so in accordance with the guidance given by the higher courts - EH v Greenwich [2010] EWCA Civ 344 "…the best guidance which in our judgment this court can give is to advise Judges to apply the statutory language with care to the facts of the particular case. The message is no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that."

ii) In relation to the application for a care order, I must first consider whether the threshold criteria in section 31(2) of The Children Act 1989 are fulfilled. In this case it is agreed that they are.

iii) Where the threshold criteria are fulfilled it is necessary to consider the provisions of Article 8 of the European Convention on Human Rights and section 1 of the Children Act 1989 when deciding whether to make the care order sought.

iv) In relation to the placement application I must consider the terms of section 52 (1)(b) and section 1 of the Adoption and Children Act 2002. The welfare checklist in the 1989 Act is not the same as the checklist in the 2002 Act. Article 8, of course, is also further and significantly engaged in relation to the placement application.

v) The court must conduct a global, holistic approach to welfare issues weighing up the various available options before it. The court must avoid a linear analysis of those options because that can lead to the piecemeal elimination of the least interventionist solutions, leaving the most interventionist solution of a placement order as the only remaining solution - Re G (A Child) [2013] EWCA Civ 965, paras 49-50;

vi) Further, where care and placement applications are made it is better for the court to conduct a combined welfare analysis of the applications rather than considering the care application first and separately from the placement application. Otherwise, if the less interventionist care order is made it may lead to a placement order being made without sufficient consideration being given to the welfare checklist under the 2002 Act and also without there being the necessary holistic analysis of the real options before the court (here adoption or rehabilitation to the mother);

vii) Article 8 of the European Convention on Human Rights states that: '1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …for the protection of health or morals, or for the protection of the rights and freedoms of others.'

viii) Care orders amount to a very significant invasion of the rights encapsulated within Article 8(1). Placement orders amount to an even more significant invasion of that right than care orders. For such orders to be justified they must satisfy the provisions of Article 8(2) and therefore must be: a) in accordance with the law (here the Convention compliant 1989 and 2002 Acts); b) necessary for the protection of the rights and freedoms (i.e. welfare) of others (i.e. the child) and c) proportionate.

ix) Welfare issues must be based on the totality of information available to the court and, unlike threshold issues, it is necessary to conduct a contemporary evaluation of what is best for the child concerned.

x) By section 1(1) of the 1989 Act the welfare of Ch is the court's paramount consideration when considering the making of orders under that Act following the satisfaction of the threshold criteria. Section 1(3) of the Act contains the welfare checklist. It provides that, in making welfare decisions under the 1989 Act, a court must have regard in particular to —

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

(b) his physical, emotional and educational needs;

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

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

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

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

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

xi) As to the 2002 Act, children may not be placed for adoption under placement orders without the consent of the parents unless "the welfare of the child requires the consent to be dispensed with" (section 52(1) (b) Adoption and Children Act 2002). The core statutory provisions in relation to placement orders are therefore sections 52 and 1 for the purposes of this judgment (although there are of course many other provisions in the Act relating to such orders).

xii) The case of Re P (children) (adoption: parental consent) [2008] EWCA Civ 535, [2008] 2FCR 185 provides useful guidance in relation to applications for placement orders. The main and relevant principles for these purposes are set out in paragraphs 119 to 154 of the judgment of Wall LJ. Those principles are summarised in the case of EH v Greenwich [2010] EWCA Civ 344. I wish to mention the following three points that arise from Re P (although I have considered the case as a whole):

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

b) The word 'requires' in section 52 is 'plainly chosen as best conveying the essence of the Strasbourg jurisprudence'. That is, it implies an imperative rather than something that is merely optional or desirable. Ryder LJ summarised the position in the case of Re R [2013] EWCA Civ 1018: 'So far as section 52 of the 2002 Act is concerned, the judge had to be satisfied that the welfare of each of the children required their parents' consent to be dispensed with. In other words, their welfare necessitates adoption and nothing else short of that will do'.

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

xiii) The relevant parts of Section 1 of the 2002 Act provide as follows (I have not included ss 5):

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

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

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

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

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

(b) the child's particular needs,

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

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

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

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

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

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

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

(5) …

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

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

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

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

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

xiv) It is of fundamental importance that there is discipline in the approach to welfare issues in care and placement proceedings. The court is not a court of social engineering. The court does not decide welfare issues by considering whether, on an individual judge's analysis, a child might be considered to be 'better off' in care or adoption. Nor does the court apply a test of whether a child will receive 'optimal care' with a given parent since there would be many parents who would fail that test. Thus the court must not approach a case such as this by asking whether, on balance, a given child would be better off with adopters or with a parent.

xv) The dicta that I have already set out from Re B-S (and which have their basis in the judgments of Lady Hale, Lord Wilson and Lord Neuberger in Re B [2013] UKSC 33) must be applied. For myself I find the passages from the judgment of Lord Neuberger in paragraphs 77 and 78 of particular assistance. They include the following at paragraph 77: 'It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests'.

xvi) Although care proceedings are quasi inquisitorial (see Re W [2013] EWCA Civ 1227), it is for the Local Authority to justify its applications and to substantiate its proposed care measures on evidence – P, C and S v United Kingdom [2002] 2 FLR 631.

xvii) No party suggests that long term fostering presents itself as an option for Ch. I agree that that is so. Black LJ said as follows in the case of Re V [2013] EWCA Civ 913:

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

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

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

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

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

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

71. Analysis - Ch is obviously too young to express his feelings. He enjoys his contact with his mother and, as a child who is 3 ½ years old, recognises her as his mother.
72. He needs to live within his natural family unless, as a last resort, this is not possible. It would not be possible for him to do so if M reverted to her former way of life. He would not be safe either emotionally or physically. Taking the checklist factors out of turn, he has suffered emotional and developmental harm through the mother's vulnerabilities, lifestyle and, in particular drinking. No child of his age should have been left to live with a mother who a) Was as vulnerable as she was, b) was drinking at the level that she was drinking and c) was involved in violent relationships as she was.
73. Thus an assessment of the mother's ability to sustain her current lifestyle is fundamental to the solution to this case. I agree with the guardian that, if the mother does sustain her current lifestyle there would be no reason to refuse rehabilitation. I agree with the guardian that on the evidence that I have heard there is a realistic prospect now of this mother sustaining her current way of life and, if she does so, there would be no reason why Ch should not be rehabilitated to the mother's care. However given the 'catastrophic' consequences for Ch if a wrong decision is made within these proceedings I do not consider that there is sufficient evidence on this issue for a final conclusion to be reached given the manifest inadequacies of the evidence that has been placed before me.
74. The likely effect on Ch (throughout his life) of having ceased to be a member of the original family and become an adopted person is not analysed in the Local Authority's documentation [See C131] or within the guardian's report. It is an aspect of the welfare checklist that the Court of Appeal has repeatedly stressed for its importance. The President said this in Re B-S [2013] EWCA Civ 1146 in the context of an application for leave under section 47 of the 2002 Act: 'The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child….. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appears likely to be short-term or transient problems." That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.
75. As to Ch's age, sex, background and characteristics, he is a child who has suffered harm in his mother's care. He was seriously delayed in his development when accommodated and remains a vulnerable child who was subjected to his mother's chaotic lifestyle for too long. I do not think that one can view an adoptive course as being without its own potential difficulties given his background. He has now been in temporary foster care for 12 months. There could not be any sensible suggestion of any form of lengthy adjournment. He needs a decision to be made for him that is correct and made as soon as sensibly possible. In fact, due to the Local Authority's delays, the case can and should be resolved within the 26 week period from initiation – i.e. by 1^st October 2014.
76. I have already analysed harm. As to risk of harm – is there sufficient evidence to conclude that there is such a current risk as to deprive Ch of his otherwise right to an upbringing with his mother? The Local Authority suggests that there is such a risk but, in my opinion, it has not mustered its case adequately to justify a conclusion being reached on this issue. It has not addressed core questions within the proceedings, its welfare analysis is inadequate and it has not produced considered evidence about the services that could be provided. Having sought the opinion of an expert it has not reverted to the expert to see the extent to which the mother has responded to his suggestions at G77 to G78. When I asked: 'Where is the evidence or analysis of the value to the child of the relationship between the mother and the child', I was told that it is 'implicit'; I asked to be referred to any passage within the parenting assessment where that relationship was considered and was told that it was not possible for me to be so referred. That is simply unacceptable.
77. In terms of the welfare checklist within the 1989 Act it is necessary to consider the effect on Ch of any change of circumstance. His circumstances must change. He cannot remain in temporary foster care. In my opinion that change of placement (whenever it might leave him) needs to take place as soon as possible and on the basis of a correct analysis of proper evidence. The change of placement from his temporary foster carers will be a major move for him and, whatever might be the limitations of his attachment to the foster carers, it is bound to impact on his emotional wellbeing. He needs to move once and once only. A change of circumstance so that he became an adopted child would be a major change and would have the consequences that I have already detailed. A change of circumstance which left him returning to the previous, pre-August 2013, environment provided by his mother is unthinkable. If he were to be rehabilitated to a mother who was stable and able to care for him that would be the best solution for him if possible.
78. As to the relationship that Ch has with his mother, this appears to be warm and loving. Its value to Ch is obvious: nature, law and common sense require that it be recognised that the best place for a child to live is with a natural parent unless proven and proportionate necessity otherwise demands. This mother genuinely wants to care for him and is motivated to do so. This case is not about the motivation or warmth of relationship that M offers. It raises the question of whether the mother could sustain his care without reverting to her previous lifestyle. On that issue I require further evidence; it is at least possible, on what I have heard, that she may be able to do so. However, I need further evidence of how 'capable' she is of doing so (to use the language of section 1(3)(f) of the 1989 Act).
79. As to the range of powers available to the court, I do not think that it would be remotely correct to express a concluded view of the outcome of the case on the inadequate evidence that I have heard. I therefore intend to exercise the power to adjourn the case for further evidence to be obtained.
80. Ms Elford said that, if a placement order were to be made, her client would accept that there should not be an order for direct contact. In relation to the father's contact (and subject to anything that is said at the next hearing) I would not foresee orders that he should have direct contact immediately in the event of either of the two options for Ch's care before me being put into effect.
81. The further evidence that needs to be obtained must come from:

i) Dr Hobson;

ii) The Local Authority by way of proper analysis of the welfare checklists, the services that might be provided to this mother and analysis of the mother's current circumstances.

iii) From the guardian, by way of holistic analysis of the case;

iv) From the mother, as to the proposals that she makes for the arrangements that would be put in place for her support and living arrangements if Ch does return to her care.

v) From Claritest as to blood tests relating to the mother's consumption of alcohol.

82. I expect the Local Authority to return the frequency of the mother's contact to twice a week.
83. I have typed this judgment at the end of a tightly listed two day hearing. It must be read by all professionals who are asked to provide further evidence in this case (and thus a copy must be sent to Dr Hobson).
84. I am releasing this case for publication on Bailii in accordance with the transparency provisions because I regard it to be in the public interest to do so. It is an example of the approach by the court where inadequate welfare evidence is provided. I hope that it shows the degree of care that the court takes and how resistant the court is to any suggestion that it should simply rubber stamp the conclusions of professional witnesses where the underlying analysis is inadequate. I would like to pay a tribute to the advocates in the case. Mr Cranfield has done his utmost to repair the inadequacies of the Local Authority's case (and has done so with his typical skill); however the task was even beyond the reaches of that very apparent and well known skill.

Stephen Wildblood QC - 6^th August 2014.