England and Wales Family Court Decisions (other Judges)

 

Case No: UY12C00111

 

THE FAMILY COURT

AT NEWCASTLE UPON TYNE

Newcastle Combined Court

The Law Courts

Quayside

Newcastle-upon-Tyne

NE1 3LA

 

IN THE MATTER OF THE CHILDREN ACT 1989 &

THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF: A (A CHILD)

 

Friday, 27^th June 2014

 

Before:

 

HER HONOUR JUDGE HUDSON

 

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Re: A (A Child)

 

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Counsel for the Local Authority: Ms Woolrich

Counsel for the Mother: Mr Donnelly

Counsel for the Father: Ms Walker

Counsel for the Maternal Grandmother: Ms Smith

Counsel for the Child: Mr O’Sullivan

 

Hearing dates: 11^th, 12^th, 13^th and 25^th June 2014

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APPROVED JUDGMENT

 

Transcribed from the Official Tape Recording by

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THE JUDGE:   

 

THE PROCEEDINGS

 

1.                  These proceedings concern a little boy, A, born 5^th November 2012 and now therefore 19 months old.  The care proceedings were issued in relation to A on 12^th November 2012, only a week after his birth.  It is a very considerable concern that A’s future has not been finally determined throughout this time.  The reasons for this will become clear in the course of my judgment.  A’s mother is M, now aged 33; his father is F, aged 32.  F does not have parental responsibility as he is not named on A’s birth certificate and has not otherwise acquired parental responsibility.  He has, nonetheless, been involved in A’s life to a greater or lesser extent since his birth and has been party to and represented in these proceedings.

2.                  Following A’s birth, he was placed in the care of his maternal grandmother, MGM.  A has been subject to an interim care order since 13^th December 2012.  On 3^rd January 2013, by agreement between the parents, the MGM and the Local Authority, A was placed with foster carers with whom he has now lived for 17 months.  The care proceedings reached a final hearing in the Family Proceedings Court, as it then was, in November 2013.  The Local Authority, supported by A’s Guardian, Barbara Hewitt (the CG), sought a care order with a care plan of adoption and also a placement order.  The plan was opposed by the family, particularly the parents and maternal grandmother, who were all parties to and represented at the final hearing.  On 22^nd November 2013, the court announced its decision.  On 28^th November 2013, the magistrates gave their reasons and made final orders.  The court made a care order approving the care plan of adoption and a placement order in respect of A. 

3.                  The case first came before me in January 2014 for the hearing of M’s appeal against the magistrates’ order.  On 12^th February 2014, I allowed the appeal and directed a rehearing in the County Court (as it then was).  My judgment highlighted the shortcomings in the evidence before the Family Proceedings Court which required further work to be undertaken.  The case was therefore timetabled through to an issues resolution hearing on 6^th May 2014.  At that issues resolution hearing, it was evident that a contested final hearing was required.  I was able to list the case before me at short notice on 11^th June 2014.  In the event, it was not possible to complete the case in the time then available.  It was adjourned part-heard to 25^th June 2014 when I finished hearing the oral evidence and submissions.  I give judgment today, 27^th June 2014.

4.                  It is not disputed that the threshold criteria are established in respect of A.  Concessions were made in relation to threshold at the issues resolution hearing in September 2013.  The issue for the court’s determination relates to A’s placement.  The Local Authority once again proposes a plan of adoption.  The plan is supported by the CG but opposed by the birth family who seek A’s return to the family by way of his placement with either his mother or maternal grandmother.  In addition to the statements and reports filed in the proceedings, a typed note of the proceedings before the Family Proceedings Court has been agreed by the advocates and included in the case papers.

5.                  At the hearing before me the Local Authority was represented by Ms Woolrich and David Evans by Ms Walker, both of whom appeared at the final hearing in the Family Proceedings Court.  M was represented at that hearing and the appeal by her then solicitors Mr Banks.  She is now represented by different solicitors in circumstances which will become clear.  She has been represented at this hearing by Mr Donnelly.  MGM was represented at the Family Proceedings Court by her solicitor Mr Dollimore.  She has been represented at this hearing by counsel, Ms Smith.  The hearing before the magistrates was conducted on A’s behalf by his solicitor, Mr Flower.  A has been represented at this hearing by counsel, Mr O’Sullivan.  A’s paternal grandmother, PGM, has been present during the hearing before me by agreement between the parties, although she is not a party to the proceedings and is not therefore represented.

6.                  During the course of this hearing I heard oral evidence from James Holdsworth (A’s current social worker), from Joe Robson (A’s social worker at the time of his birth and who has had an ongoing involvement in a different capacity since that time), from M, F, PGM and MGM and, finally, from the CG.

7.                  There is a lengthy and complex background to the proceedings as well as numerous significant developments during the course of them.  There are many factual disputes between the parties.  It is not, of course, necessary to resolve every factual dispute, only those which are relevant to my determination of the welfare issues in respect of A and where the evidence is sufficient to make a factual determination.  In relation to all factual issues, it is for the party making an allegation to prove it.  I determine all factual disputes on the simple balance of probabilities.

8.                  Both parents admit that they have told lies.  Insofar as it is either admitted or I find that a person has lied about something, I have taken account of the fact that lies may be told for many different reasons, such as shame, misplaced loyalty, panic, fear and distress.  I have cautioned myself against an assumption that a lie about one aspect of the case renders evidence from the same person unreliable or untrue.  I have, in essence, given myself a Lucas direction.

THE BACKGROUND

 

9.                  M, now aged 33, has a history of serious drug misuse going back more than 12 years with associated criminality and concerns in relation to her lifestyle.  She has sought support and treatment in relation to this at times, but had not been able to maintain a consistently drug-free lifestyle before A’s birth.  The Local Authority was involved with M and her previous partner in 2006, when she was then pregnant expecting twins.  On 7^th March 2007, twin boys, B and C, were born and discharged home from hospital to the care of their parents.  On 5^th April 2007, C tragically died.  B was made the subject of an emergency protection order that day and placed with foster carers.  Care proceedings followed.  Although there were significant concerns about the parents’ lifestyle and their ability to care for B, it does not appear from the papers that there were considered to be any suspicious circumstances in relation to C’s death. 

10.              MGM asked to be considered as a carer for B.  Following a positive assessment he moved to her care on 9^th September 2007.  He was then rehabilitated to his mother’s care on 14^th April 2008.  The first set of care proceedings concerning B concluded on 16^th July 2008, when a supervision order was made in favour of North Tyneside Council based on a care plan of B’s placement in his mother’s care.

11.              The date the relationship between M and F started is unclear, but is recorded as being in about 2007/2008.  F also had a long history of drug misuse with associated criminal activity.  There were periods of enforced separation during the relationship between M and F when he was serving custodial sentences.  Within months of the care proceedings in respect of B concluding, there were further safeguarding concerns about M’s care of him.  Following this, B spent periods in the care of other family members as well as with his mother.

12.              In 2009, there was clear evidence of drug misuse by M.  On 30^th May 2010, M was arrested for taking heroin into prison for F at his request.  B was with her at the time.  B was removed from his mother’s care and placed with MGM.  He has not lived with M since.  M served a custodial sentence in relation to this offence. 

13.              It was very surprising to hear MGM, in her evidence before me in June 2014, to say that it was only during this hearing that she learnt that her daughter’s arrest related to her taking drugs into prison for F.  She said she had never previously known who she was taking them to.  I found this astonishing, whether it is true or not.

14.              MGM was a party to the care proceedings in relation to B and has been a party to the proceedings in respect of A for significant periods.  The case papers are littered with references to this event and that it related to F.  MGM was represented in the proceedings in respect of B and has been represented in these proceedings.  She attended hearings in both sets of proceedings and was present for most of the final hearing in November 2013 in respect of A, although she was permitted to leave early to collect B from school.  I find it very surprising that she was not made aware of this significant fact during the course of those proceedings.  If MGM is right, and she did not know, it begs the question why not: why M has never told her and why, if that was so, MGM did not ask who was involved.

15.              I was not persuaded by MGM’s answer that she was away in South Africa at the World Cup at the time of the arrest and that it made no difference thereafter who it was.  It was certainly relevant that the man who was responsible, at least in part, for the circumstances in which B was removed from his mother’s care was also the mother’s partner thereafter and the father of her subsequent child. 

16.              These events resulted in the issue of care proceedings in respect of B for a second time.  The case papers record that B had experienced 12 moves in his short life by that time.

17.              The relationship between M and F resumed in 2011 after his release from custody, when both were attending Project Answer, a drug treatment service in North Tyneside.  In autumn 2011, B’s care arrangements were unavoidably disrupted when MGM was diagnosed with cancer and required urgent hospital treatment.  During this time B was placed in the care of MGGM, his maternal great-grandmother.  MGM was in hospital for significant periods over the following months and thereafter underwent a long period of recovery.

18.              There is a photograph which shows B with his parents in a park, which they say was taken when they were visiting MGM in hospital.  This contact was unauthorised.  The Local Authority has been unable to achieve any real clarity about the circumstances in which this photograph was taken.  MGGM has consistently denied that she permitted any unauthorised contact.  M admitted during the course of this hearing that there were at least two occasions when F had unauthorised contact with B. 

19.              F has another child, a daughter, D, now aged 9.  She is the child of a previous relationship.  He has always had contact with D when he has not been in prison.  F and M admit that he permitted her to have contact with D without the knowledge of D’s mother, in circumstances in which D’s mother had made it clear that she did not want her daughter to have contact with M. 

20.              In early 2012, M became pregnant.  It was a planned pregnancy by her and F.  There was obvious concern about the care arrangements for the then unborn baby against a background of what was known about the parents and the disruptive care arrangements B had experienced. 

21.              A pre-birth assessment was undertaken between August and October 2012.  By then, M had been drug-free since December 2011, which was obviously a positive factor.  F was in prison during part of the assessment period, following his conviction for further offences of dishonesty.  Nonetheless, the assessment described the relationship between M and F as mutually supportive.  They were clearly expressing a wish to care for their baby and to develop their contact with their other children.  The pre-birth assessment was cautiously positive, whilst recognising the history of difficulties in dealing with crises or problems by both M and F.  The assessment supported M and F caring for their baby but recommended a child protection plan.  M and F were unhappy that a child protection plan was considered necessary.

22.              In October 2012, very shortly after the completion of this assessment, M attempted to withdraw from Subutex against medical and professional advice.  Her situation quickly deteriorated.  She started offending again, she withdrew from the services available to her, she was uncooperative with professionals and provided false samples for drug testing.  By the end of October 2012, she was smoking heroin daily.  Inevitably, the Local Authority revisited its plan for the unborn baby and decided that care proceedings and a section 47 investigation were required.  On 29^th October 2012, the unborn baby was made the subject of a child protection plan under the category of neglect. 

23.              MGM confirmed in her oral evidence that she had been supportive of M caring for the baby at that stage.  At very short notice she had to consider whether to offer to take on the care of the baby as well as B, who had only returned to her full-time care in August 2012 after her significant illness.  She agreed to care for the baby.  A was born on 5^th November 2012 and unhappily had symptoms of drug withdrawal as a result of his mother’s drug misuse in the late stages of her pregnancy.  He remained in hospital for a week and was discharged to MGM’s care on 12^th November 2012, the day proceedings were issued.  MGM’s care of A was subject to a contract providing for the parents to have supervised contact five times a week. 

24.              On 15^th November 2012, M and F separated following an episode of violence, the circumstances of which are in substantial dispute between them.  This was, of course, only ten days after A’s birth.  M has consistently described a serious and prolonged episode during which she was pinned to the bed and slapped by F.  She says he left the property and returned, having stolen some copper piping, and then forced his way back into the property.  F agrees there was an episode of domestic violence, but only to the extent of him grabbing M and pushing her on the bed.  He denies slapping her or pinning her to the bed.  M, F and PGM agree that a telephone conversation took place with PGM during this episode, but the accounts are inconsistent as to whether M rang for help or whether PGM called coincidentally.  There is no consistent account between M and PGM about what was said to PGM about the extent of the altercation.  PGM says she spoke to F to try and calm him and the situation.  I did not consider there was evidence upon which I could base any reliable findings as to the detail of this episode.  It is of concern that this incident remains the subject of significant dispute between the parents, with no clarity about the extent of the domestic abuse that took place on that occasion.

25.              The first hearing in A’s care proceedings took place at the Family Proceedings Court on 13^th December 2012, when an interim care order was made based on an interim care plan of placement with MGM.  The Local Authority agreed to undertake assessments of both parents as carers for A.  At that hearing, it was evident that the breakdown of the relationship between the parents was acrimonious, with evident tensions between them. 

26.              Following the hearing, this acrimony continued with each making serious allegations against the other.  They are set out in the statement of the social work team manager, Shona Gallagher, and summarised in the Local Authority’s case summary at paragraph 25, as follows:

 

By M, allegations that F had used drugs despite clean samples, that she had provided clean samples for him when he was on a drug rehabilitation programme, that she found used needles in a top drawer at home.  On his release from prison on 26^th October 2013, he gave money to her to buy heroin whilst he went to see D and his mother.  That they smoked heroin together all weekend.  Also that F had a poor relationship with PGM’s partner and that he stole from him three or four years ago.

Allegations by F, that B had been having overnight contact with him and M since they moved into the flat together, believed to be around March 2012, and that B was told not to tell professionals about this.  That MGM had been bringing B to their home.  That F had a strong relationship with B.  That he did not know that M was not supposed to have unsupervised contact with B until Children’s Services became involved due to the pregnancy with A.  That he was having contact with D, B and M together at a park and produced a photograph to confirm it.

F denied misusing substances on the weekend of 26^th October 2012 and said he was shocked by M’s appearance.  He denied using her samples.  He admitted using a line of cocaine in February 2012.  He agreed he did steal from his mother’s partner but said that he was allowed to visit her.  When challenged about why she had not told the Local Authority of these issues at the relevant time, M claimed not to have had the opportunity.  MGM denied knowing about the contact between B and F.

27.              In addition to these serious allegations, there was evidence which suggested that B was having unauthorised contact with his mother and F.  Comments made by B which inferred such contact were not substantiated one way or the other. 

28.              On 26^th December 2012, there was an admitted breach of the agreement in relation to M’s supervised contact when she was found to be at MGM’s home, apparently invited by MGM’s former partner while she (MGM) was out.  MGM returned to the house with B shortly before a social worker arrived and discovered the breach. 

29.              The allegations between M and F had a direct bearing on B’s care arrangements and the involvement of the Local Authority with him.  A plan to finalise proceedings in relation to B was put on hold, as F’s allegations had cast doubt on MGM’s reliability and the Local Authority sought a further period of assessment.  MGM made it clear that B was her priority and, if needs be, A would have to go into foster care. 

30.              The deterioration in the situation had led the Local Authority to seek an interim care hearing with a revised plan of A’s removal to foster care.  In the event, at the hearing on 3^rd January 2013 the plan for the move to foster care was not contested.  MGM did not attend the hearing.

31.              At a hearing on 21^st January 2013, MGM withdrew from the proceedings.  In doing so, she confirmed that she did not put herself forward to care for A in the short or long-term.  She also withdrew from contact with A, which therefore resulted in a break in the relationship between A and B.  In her oral evidence, MGM said that the Local Authority was then working towards a placement with F.  That is not the case.  Although both parents were being further assessed, there was no indication at that stage that placement with either parent was likely to be a realistic option.  PGM started having regular contact as part of her son’s assessment. 

32.              The parenting assessment of M was undertaken by Candice Meikle and completed in March 2013.  Whilst acknowledging some positives, it ultimately reached a negative conclusion in the light of what were then considered entrenched patterns of behaviour.  The assessment of F by Bev Marrs reached a cautiously positive conclusion.  The CG said at this hearing - as she has previously - that she identified areas of this assessment she considered needed further work.  Furthermore, her view was that some of the positive features which led to the recommendation in favour of F were also evident in respect of M, whose assessment had reached a negative conclusion.

33.              On 9^th April 2013, the care proceedings in respect of B concluded with a residence order confirming his placement with MGM.  No public law orders were made.  Part of the rationale for this was the very strained relations between MGM and the Local Authority, as a result of which it was considered that Local Authority involvement on a statutory basis would not improve B’s overall welfare.  In April 2013, MGM requested a resumption of her contact with A, which has since taken place fortnightly and included B. 

34.              A care team meeting followed by a Looked After review in April 2013 approved a plan for further assessment of F.  Within days of this plan being agreed, F relapsed.  He started missing contact, using drugs and offending.

35.              The negative relationship between M and F at this time was clearly illustrated at a hearing on 29^th April 2013, when F was openly abusive and hostile to M at court.  The following day he sent her a highly abusive text with direct reference to their respective roles as A’s parents.  On 2^nd May 2013, F was arrested in relation to shoplifting offences and tested positive for cocaine.  On 7^th May 2013, he was arrested for offences of burglary and remanded in custody.  He has been in custody since.

36.              In response to these changed circumstances, MGM informed the Local Authority she once again wished to be considered as a carer for A.  On 20^th May 2013, she issued an application for a residence order in respect of him.  On 17^th June 2013, she was once again joined to the care proceedings. 

37.              In the meantime, the Local Authority had revisited its plans for A.  At a Looked After Review on 31^st May 2013, a plan for adoption was approved.  This recommendation was not supported by Project Answer, who were continuing to work with M and who considered she should be given a further opportunity to demonstrate positive changes to her lifestyle.

38.              The changed position of MGM led the Local Authority to reconsider her position, with a further assessment undertaken by Joe Robson.  This was completed in July 2013.  Once again, some positives were noted, but the assessment was ultimately negative.  A care team meeting held on 25^th July 2013 recorded M’s continuing progress.  The outcome of the meeting was a recommendation that A should be placed with her.  In her oral evidence, M said she had not expected this and that she thought the meeting was just going to consider her mother’s assessment.

39.              The report of Candice Meikle prepared for the decision making Looked After Review on 29^th July 2013 balanced the pros and cons of the placement options  and confirmed the care team meeting’s recommendation of A’s placement with M.  There was no consensus at the Looked After Review.  In addition to the positive social work recommendation, Project Answer remained supportive of A’s placement with M but representatives from health services expressed reservations.  The independent reviewing officer did not support the plan.  MGM was supporting A’s placement with his mother at this stage.

40.              As a result of the disagreement within the Local Authority decision-making forum, the Local Authority’s ‘dissent process’ was initiated, which involved senior management within the Local Authority.  The Local Authority’s final care plan dated 31^st May 2013 proposed the Local Authority’s plan of adoption.  The Local Authority duly issued an application for a placement order. 

41.              Unknown to the Local Authority and, it appears, the respective grandmothers and all other professionals involved with the family, by this time M and F had been in regular contact for months.  What is now known is that M had been visiting F regularly in prison since 25^th June 2013.  Between that date and 1^st March 2014, she visited on 13 separate occasions, while F was variously in HMP Durham and HMP Northumberland.

42.              M and F both said in evidence that he made contact with her initially by writing to her asking for photographs of A as well as asking for information about the proceedings.  They both said she replied, sending photographs, following which F said he wrote a second time enclosing a visiting order.  He said he did not know if M would visit, but she did. 

43.              M visited on 25^th June, 2^nd July, 16^th July, 20^th July and 30^th August 2013.  No mention was made by them of any contact between them in their final statements.  M put forward a case for A’s placement with her.  F filed a statement in support.  MGM’s statement set out her case for A’s placement in her care, in opposition to M.  PGM supported A’s placement with either M or MGM, acknowledging as she has throughout that, despite her evident love for A, her own circumstances are such that she cannot put herself forward as a primary carer.  The CG filed her analysis, supporting the Local Authority plan. 

44.              At the issues resolution hearing on 26^th September 2013, the case was timetabled to a final hearing on 18^th November 2013.  There were two further visits by M to F in prison before the final hearing, on the 8^th and 22^nd October 2013.  On both occasions M visited with a friend or friends of F.  F said he had been moved in around September 2013 from HMP Durham to HMP Northumberland.

45.              F refused to attend the final hearing, without giving any reason.  M accepted in her oral evidence that she knew in advance that he was not going to attend.  She said she tried to persuade him he should, but he refused.  The hearing took place over five days between Monday 18^th and Friday 22^nd November 2013.  In her oral evidence at that hearing, M said in terms that she was neither in a relationship nor in contact with F.  She denied having any contact with him from prison.  That was patently untrue.  Apart from their past contact, they also had an arrangement in place for her next visit, which took place the day after the hearing concluded, on Saturday 23^rd November 2013.  F’s absence from the proceedings compromised the court’s ability to properly consider and determine the factual issues between M and F.  His absence had a real impact on the proceedings. 

46.              At the start of that hearing, the position of M and MGM was as recorded in their statements, each putting forward a case for A’s care in preference to the other.  MGM’s position changed during the course of the hearing.  Over a lunch adjournment before she gave her oral evidence, MGM indicated a changed position having listened to the evidence of M and the evidence from Project Answer and said she was supporting A’s placement with M as the first option.

47.              The court gave its determination at the conclusion of the hearing on 22^nd November 2013 and gave its full reasons on 28^th November 2013, making a final care order and a placement order in respect of A.  In December 2013, M’s solicitor issued an appeal against the decision of the Family Proceedings Court on her instructions. 

48.              During December 2013, M made three further visits to F, on the 17^th, 27^th and 30^th December 2013.  At the last of those three visits she was accompanied by PGM. 

49.              PGM’s evidence was that she had received a letter from her son who was evidently very low, in response to which she tried to explain to him what was happening in relation to the proposed appeal.  She said that there were a few letters and she also spoke to him by phone but she was unable to lift his spirits, as a result of which she asked M to accompany her to visit him in prison.  They travelled together to and from HMP Northumberland by car and were together throughout the visit.  At no point did either of the parents mention the fact that they had seen each other regularly, twice in the last two weeks and most recently only three days previously.  PGM agreed in her evidence at this hearing that they had put on a good act, which had deceived her completely.

50.              The appeal came before me for hearing on 23^rd January 2014 when I heard argument.  For reasons set out in my judgment, I was unable give judgment until 12^th February 2014 when I allowed the appeal.  My reasons for doing so were set out in detail in that judgment but, in essence, I was not satisfied that the evidence before the court provided a holistic evaluation of negatives and positives to enable the magistrates to reach a balanced and fair determination.  I directed a rehearing and made it clear that I expected the gaps in the evidence to be filled, if necessary by an independent social work assessment.

51.              I gave case management directions on 28^th February 2014, when I approved the agreement between the parties for the further assessment of M to be undertaken by Joe Robson.  F attended the appeal hearing in January 2014, but did not attend the two hearings in February 2014.  M’s last two visits to him were on 23^rd February and 1^st March 2014. 

52.              Joe Robson’s first assessment session with M was on 5^th March 2014.  During that session he explored with her whether she had had any contact from F or visited him in prison since he went into custody.  She denied there had been any contact.

53.              On 10^th March 2014, Mr Robson was due to undertake an assessment session with PGM.  Shortly before the session M telephoned him and said she was unclear about the timeframe he had meant when asking her about her contact with F.  She then told Joe Robson about the visit to prison with PGM on 30^th December 2013, which she said had been at PGM’s request.  Joe Robson’s evidence is that he stressed the need for M to be frank about the contact she had had with F and told her that they would discuss it at their next session.  At the next session on 17^th March 2014, M confirmed there had been only one visit.

54.              Joe Robson visited F in prison on 26^th March 2014.  During that visit, F disclosed the visit to him by M and PGM on 30^th December 2013, but said there had been no further communication between them.  It was only when Joe Robson contacted the prison directly on Wednesday 2^nd April 2014 that he was provided with the information of the 13 visits that had taken place.  M was confronted with the information the same day.  She said that she had tried to tell Joe Robson but had not felt able to as he had been stressing the risks that F posed.  Joe Robson records her accusing him of being ‘sly and devious’ in contacting the prison without telling her, despite the opportunities he had already given her to volunteer the information.

55.              Joe Robson spoke to PGM about the contact with F on Thursday 3^rd April 2014.  He spoke to MGM the following day, Friday 4^th April.  MGM agreed that the social worker’s file note from that meeting accurately records her hostility towards him when he told her of the contact between M and F, which she accepted would reasonably have been interpreted as her being defensive of M and her actions.  In her oral evidence, MGM justified this by saying she was angry that the social worker had waited some days before he spoke to her.  Although she initially said she had only just received the information when she spoke to him, she later accepted that that was not the case.

56.              M has explained her contact with F as resulting from her wish to speak to him as he was the only person who understood her feelings about losing their child.  She also told Joe Robson in the assessment that it was better to talk to him than to use drugs.  She said she did not need to use drugs because of the support she had in the community.  Despite that support, her longstanding involvement with Project Answer, as well as regular counselling through the GP and the support she has received over time from Families in Care, M chose to have repeated contact with F.  That is all the more surprising given the emphasis she has placed on the positive impact of these supports in helping her change her life, in stark contrast with the destructive relationship and communications with F only a matter of weeks before she started visiting him.  M and F were both clearly aware that these visits would be viewed adversely, as a result of which they were kept not only from the professionals but also from their family, including the overt deceit of PGM in the circumstances of the visit on 30^th December 2013. 

57.              Joe Robson’s assessment was completed on 8^th April 2014.  It recognises the positives: M has now been drug-free for 17 months; she has not offended for a significant period of time; she has a stable lifestyle; she has apparently positive working relationships with and accepts support from professionals (Project Answer and counselling, in particular).  M now has a role as a mentor for others, as a result of her positive working relationship with Project Answer, which has also improved her self-esteem.  The assessment records the good quality contact that M has with A, including the extended contact which has taken place.  She had a good understanding of A’s needs. 

58.              The assessment nonetheless reached a negative conclusion.  It recorded that these positive factors had not prevented M visiting and apparently relying on F.  The assessment reported the negative impact of the ongoing relationship and association between the parents.  It recorded the risks in relation to F’s behaviour on release and the risk that M herself would herself be drawn back into a similar lifestyle.  Finally, the assessment recorded the high level of deceit which had undermined the trusting relationship which was considered essential for A’s safe return to the family.  The assessment also recorded F’s dissatisfaction and agitation during the meeting he had with Joe Robson on 26^th March 2014 at the social worker’s plan that any contact that he had with A would be at a reduced level from the weekly contact he had had previously had and would probably be about monthly. 

59.              In oral evidence Joe Robson accepted that, until he received the information about the prison visits, the assessment was going well and was likely to reach a positive conclusion.  He agreed, as Mr Donnelly put it to him in cross-examination, that M was within touching distance of a recommendation for rehabilitation.

60.              In addressing the assessment work, I have touched on the positive factors.  These positive factors, which I accepted at the time of the appeal and which influenced my decision at the time, remain.  The issue is, however, the weight that is properly given to them in circumstances in which it is clear that this presents only a partial picture, that they did not serve as a sufficient protection to prevent the contact between M and F and in the light of the long-running deceit of family, professionals and the court, (seen against the background of the questions about M’s history of working openly with the Local Authority).

CONTACT

 

61.              One of the positive features of M’s case has been her consistently good contact with A.  Contact takes place three times a week for two hours on each occasion.  Visits have been extended on occasions, which have also gone well.  She and A have developed a loving relationship with each other.  A’s closest relationship, unsurprisingly, is with his foster carer but he shows a clear preference for his relationship with his mother over others.  A also has good contact with his both of his grandmothers and with his brother, B, who he sees fortnightly with MGM.  The brothers have established a positive relationship.

THE POSITION OF THE PARTIES

 

62.              The Local Authority invites the court to approve the plan of adoption and make a final care order and placement order.  The Local Authority filed a revised care plan during the course of the hearing, which makes it clear that the proposed indirect contact would include the grandparents as well as the parents and that the indirect contact would also include the siblings.  The Local Authority has agreed to canvas the possibility of direct contact between A and his siblings, particularly B, mindful, however, of the fact that they remain within the birth family. 

63.              M’s case is that A should be returned to her care with continuing professional support and with family support from her own mother and from PGM.  Mr Donnelly emphasised the positives that M has achieved and maintains.  They were well demonstrated in his cross-examination of Joe Robson by reference to the threshold findings at the outset of the proceedings at A1-2 and the areas in which M has made real progress.  If A is not placed with M, she supports placement with MGM.  M asks the court to accept that she would not interfere with the placement and relies on the situation with B as providing a sound foundation for this assertion. 

64.              When MGM gave evidence, I found it difficult to discern what her case was: whether she was supporting M in the first instance, or whether she was now proposing herself as a carer in preference to M.  On a number of occasions when she was asked, she replied that her position had changed “that many times it is unbelievable”.  She said the situation changes and her position changes with it.  Eventually, as I was unclear what she was saying, I asked her directly, in response to which she said she no longer supported M as A’s carer.  When I then asked MGM if she had discussed this with her daughter, she said she had not.  I asked MGM when her daughter would first have heard of her position and she said it would have been when she gave her evidence.  I asked if MGM thought she should have discussed it with her, or at least informed her of her position before then, in response to which she agreed, but that it had not occurred to her until then.  I found that both surprising and troubling in the context of evidence which MGM had given only moments earlier of what she described as a good relationship with her daughter.

65.              When PGM gave evidence she explained the circumstances in which she cannot care for A but offers support, including regular staying contact (by way not only of enjoyment for her and A but also respite) if he were living with either M or MGM.  She has clearly and understandably found her son’s longstanding drug misuse extremely distressing.  She remains supportive of him and acknowledges he can require considerable support from her.  She describes a very different person, depending on whether he is drug-free or not.  She acknowledged his unhappy history of relapse.  Both grandmothers acknowledge that the revelations about the prison visit had caused them to question the extent to which they could now trust M and F and the consequent impact on A and his security and protection. 

66.              F supports A’s placement with M or MGM and seeks contact on his release from prison in October 2014.  Although he now says he will accept any level of contact, his history of challenging the Local Authority’s role previously and his adverse reaction to the suggestion of monthly contact rather than weekly as he desired, raises a question as to his true acceptance of a lower level of contact. 

67.              The CG supports the Local Authority’s plan in the further report that she has filed.

THE THRESHOLD CRITERIA

 

68.              The basis upon which the threshold criteria is established was agreed by the parties back in September 2013, reflecting the harm and likelihood of harm to A when protective measures were put in place at the time of his discharge from hospital and placement with MGM, coinciding with the issue of proceedings.  The threshold concessions will be attached to the order I make today.

WELFARE ANALYSIS

 

69.              In undertaking my welfare analysis, I have had full regard to the 2013 case law relevant to the approach of the court in determining applications for care orders and placement orders.  The judgment of the Supreme Court in Re B (A Child) [2013] UKSC 33 is of central importance in providing guidance as to the correct approach of a court where it is asked to consider a care plan for permanent removal of a child from the birth family.  The judgment given in June 2013 considered in detail the approach to the European Convention on Human Rights Article 8 proportionality in a public law children case.  The judgments of the Supreme Court judges stress the significance of the decision of the court to remove a child from his or her birth family and for the child to be placed for adoption against the wishes of the birth family. 

70.              The judgments emphasise that a care order and adoption is an extreme outcome and a ‘last resort’, in the words of Lord Neuberger.  A care order cannot be made in such circumstances unless the order is proportionate, bearing in mind the requirements of Article 8.  Lady Hale described the tests for severing the relationship between parent and child as, ‘very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.’  The test is one of necessity therefore.  The welfare of the child is paramount but, as Lord Neuberger said at paragraph 77 the interests of a child self-evidently require his or her relationship with her natural parents (and I include here the birth family generally) to be maintained unless no other course is possible in the child’s interests.  He went on to say (at paragraph 104) that the interests of the child ‘include being brought up by his or her natural family, ideally the natural parents, or at least one of them’. 

71.              The Court of Appeal gave judgment in Re G (A Child) [2013] EWCA Civ 965 the following month (on 30^th July 2013).  The judgment of Lord Justice McFarlane stressed the need for a proper, thorough and holistic evaluation of the placement options, giving full weight to the Article 8 rights.  Such an approach involves the court balancing the pros and cons of the placement options in any case.  He emphasised the need for substantive consideration of the Article 8 considerations in relation to the issue of permanent separation of a child from the birth family.  He said:

‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

72.              Where the court is considering a plan of adoption the evaluation must take place in the context of the welfare provisions of section 1(2) Adoption and Children Act 2002 whereby the child’s welfare throughout his life is the court’s paramount consideration.  The welfare checklist in section 1(4) includes, in section 1(4)(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.  Lord Justice McFarlane also referred to Re B and the repeated use in their lordships’ judgments of phrases such as ‘high degree of justification’, ‘necessary’, ‘required’, ‘a very extreme thing’, ‘a last resort’ and ‘nothing else will do’.  He said that in the light of this, ‘it is clear that the importance of a child either living with, or maintaining a relationship with, his parents and natural family have not been reduced.’

73.              In Re B-S [2013] EWCA Civ 1146, the President also referred once again to the striking language used by the Supreme Court in Re B, as to the degree of necessity before a care plan for adoption is approved.  In paragraph 18, by reference to Strasbourg authority, he said that family ties may only be severed in very exceptional cases; everything must be done to preserve personal relations and ‘rebuild’ the family; and that it is not enough to show that a child could be placed in a more beneficial environment for his upbringing.  The President approved the global holistic approach to the welfare evaluation.  He stressed the need for proper evidence from the Local Authority and CG, addressing all the realistic options with an analysis of the arguments for and against each option.  He further stressed that the assessment of the parents’ ability to care for the child must take account of the assistance and support the Local Authority and other professionals should reasonably make available to the family. 

74.              In Re W (A Child) [2013] EWCA Civ 1227, Lord Justice Ryder set out in paragraph 99 the three questions the court has to answer in any care case:

 

i)              What is the harm and/or the likelihood of harm?

ii)            To what is that harm attributable?

iii)          What will be the best for the child?

75.              He went on, at paragraph 100, to say that the court is to undertake its evaluation to determine what is best for the child by reference to three questions:

 

i)              What is the welfare analysis of each of the placement options available?

ii)            What is the welfare evaluation, that is the best option among those available? and

iii)          What orders are proportionate and necessary, if any?

76.              Before I turn to the placement options, it is important to focus on A and the particular welfare issues as they relate to him.  I do so by reference to the welfare checklist.  Where the Local Authority’s plan is for adoption, I adopt the welfare checklist in section 1(4) of the 2002 Act, insofar as relevant. 

A’s Wishes and Feelings

 

77.              A is a very young child and therefore unable to articulate these.  Nonetheless, he has evident warm and loving relationships with his birth family.

A’s Particular Needs

 

78.              A has the usual basic care needs of any child of his age.  He has had a disruptive start to his early life, with symptoms of drug withdrawal at birth, a short-lived placement within the birth family, followed by a long placement in foster care while the proceedings had been before the court.  I expressed my concern when I gave judgment in February 2014 that A was then 15 months and needed a decision to be taken urgently about his long-term future. 

The Effect on A Throughout his Life of Ceasing to be a Member of his Original Family and Becoming an Adopted Person

79.              Adoption will terminate A’s legal relationships with his birth family and all meaningful contact, other than indirect contact, with the possible exception of some very limited direct contact with his siblings.  That is recognised as having an emotional impact on any child, which will equally apply to A. 

A’s Particular Characteristics

 

80.              A has an established relationship with his birth family, particularly with his mother and grandmothers.  He also has a meaningful relationship with his brother B.  He is nonetheless still young, with the potential to form new attachments. 

The Harm and Risk of Harm to A

 

81.              A was born with symptoms of drug withdrawal as a result of his mother’s drug addiction which has been a central part of his parents’ lifestyle.  He was unable to live with his parents at birth because of the impact of that lifestyle at that time on him.  The risks to A include any exposure to a similar lifestyle, the exposure to further domestic abuse in the relationship between his parents, inconsistent care arrangements (that A has experienced to date and the unhappy history of B’s care arrangements), and of a failure to meet his physical and emotional needs in such circumstances.  This harm is attributable to his parents’ lifestyle as it was at the time of the proceedings, should it be repeated.  What is best for A depends on the evaluation of the risk of relapse or a return to such a lifestyle. 

My Analysis of the Placement Options

 

82.              Placement of A with his mother brings with it obvious advantages.  It would be a placement with someone who is an established and positive part of his life already.  It is likely to be a significantly easier transition for A than placement with stranger carers.  M is his mother, a placement with her brings with it all the benefits of such a placement in terms of A’s identity and heritage.  He has ongoing relationships with those family members which could then continue. 

83.              M has demonstrated significant improvements in a number of important areas: she is now drug-free, other than the prescribed Subutex which she has taken for some time and which she can safely take in the same way in the future; she has a stable lifestyle; she has apparently positive relationships with professionals; and she has support from her family.  The advantages of a placement with M are clear, provided she maintains her present stability.  The question is whether she can be trusted to do so and whether the recent disclosure of contact with F poses a risk to A.  The disadvantage of a placement for A with his mother in such circumstances is equally clear, with the potential of further disruption at what is now, in my judgment, a crucial stage of his development. 

84.              The advantages of a placement with MGM run in parallel with the advantages of a placement with M - a placement within the birth family, with the particular advantage that A would then live with his older brother, B.  The same advantages in terms of A’s identity apply.  MGM has shown herself well able to meet B’s needs and has been approved as his permanent carer.  There are risks inherent in a placement with MGM.  There is a risk of further disruption in the light of M’s clear and consistent desire to be A’s primary carer, which has been notably different to the relationship she has had with B.  There is a risk in the ambivalence that MGM has shown in relation to A’s care, about the prospect of him returning to his mother and about MGM’s ability to care for him altogether.  There is a risk in relation to the role that F would intend to play in A’s life. 

85.              A placement for adoption has the advantage of the prospect of a secure and permanent placement with prospective adopters matched to meet A’s particular needs.  The disadvantages of a placement for adoption are well known: the ending of A’s relationship with his birth family, his parents, grandparents and siblings; the inevitable impact on his identity as he grows up knowing that he is an adopted person; and the risk of breakdown within adoption cannot be ignored.

MY FINAL ANALYSIS

 

86.              It is clear from the judgment I gave in February 2014 that I recognised positives in M’s case and did not consider they were properly reflected in the analysis and conclusions reached by the court below, as a result of the shortcomings in the evidence presented to it.  But for the discovery of the ongoing contact between M and F, the assessment was proceeding well and likely to reach a positive conclusion.  The question is what difference the contact and the circumstances of it make. 

87.              It raises important issues, in my judgment:

 

i)              The fact of the contact - that M chose or found it necessary to seek F’s support, despite her progress with her own life and her involvement with a range of professional supports, ideally placed to provide her with the support that she says she needed in relation to A;

ii)            The risks inherent in the relationship or ongoing association between M and F.  Their past relationship was highly destructive to each of them and, in turn, to B and A.  Whilst M has made progress, independently of F and for the main while he has been in custody, F will be released from custody in a few months’ time to an uncertain future with, sadly, a significant risk of relapse based on his past;

iii)          The long running deceit over a period of nine months.  Deception of professionals tasked with determining A’s future - importantly, the agencies concerned with A’s protection and wellbeing, as well her own solicitor and the court.  And deception of their families, most importantly A’s maternal and paternal grandmothers, who are put forward as supports to any placement and safeguarding factors in a plan of A’s placement with his mother;

iv)          The response of MGM and PGM.  I accept, as they have both said, that they were unaware of the contact and that they were both angry when they learned of it.  MGM’s reaction was, however, to direct her anger at the Local Authority; PGM’s evidence was that she thought that M’s actions were wrong but that M was doing what she thought was best for A.  PGM struggled to understand why it was suggested that, in her actions, M had not put A’s interests first.

88.              These important issues must be seen in the context of the evidence of the contact and its discovery.  The deception was continued, even when M was challenged directly about contact at the hearing in November 2013 and by Joe Robson in March 2014.  Even when the joint visit with PGM was disclosed, M denied further contact.  When it was discovered, her response was accusatory - that the social worker had gone behind her back. 

89.              M’s accounts of her contact in her written and oral evidence were vague.  It lacked any real context.  Prison visits do not happen by chance.  They require organisation and communication.  When I pressed her about this, she said that F sent her visiting orders or arranged the visits without any accompanying letters.  She admitted sending photographs to him on three occasions.  M and F both assert that such letters as did pass between them no longer exist.  I am very sceptical that the court has been provided with a full and honest account of the contact between them, even now. 

90.              I am satisfied from the evidence that I have read and heard that the Local Authority undertook the further assessment with an open mind and a will to investigate the further potential for A’s placement with his mother.  I found Joe Robson to be measured and thoughtful in his evidence, both written and oral.  I found his assessment to be thorough, balanced and fair.  I accept and adopt his analysis in section 13 relating to the risks inherent in ongoing contact between M and F and the impact of it on A, which is also reflected in the matters that I have outlined in the course of my judgment.

91.              In his oral evidence, Joe Robson said the discovery of the visits has been ‘illuminating in how the risk can be managed’.  He questioned how the risk could be managed in the absence of an honest and open working relationship.  But for the discovery of the contact in prison at this stage, had it become known later, it could well have caused further instability for A and a concern about his emotional wellbeing because of the risks inherent in the contact between his parents. 

92.              I considered whether there are resources which could support the placement and provide adequate safeguards.  In the absence of an ability to trust M and F, this is neither realistic nor achievable.

93.              Placement with MGM is, in my judgment, fraught with difficulties.  The court cannot simply compare A’s situation with that of B.  They are different children with different fathers and different relationships with their parents (and with MGM).  I was far from persuaded that MGM’s stated position in respect of M’s role in A’s life could be relied on - either vis-à-vis A returning to his mother’s care, or in terms of her own ability to care to A’s long-term placement.  Her apparent failure to ask even the most basic questions relevant to A’s protection gives no confidence that his welfare would be adequately safeguarded.

94.              Placement for adoption is the placement of last resort.  It can only be approved by the court in extreme circumstances.  It is clear I was not satisfied of this in February 2014 or that the magistrates’ decision could be sustained.  I have given the case the most careful consideration in these circumstances.  A has a pressing need for permanency after 18 months of his life.  The next move needs to be his last.  I have sadly concluded that adoption is not only the best option for A but, on the evidence as a whole, I am quite satisfied now that it is the only option which can meet his long-term welfare needs now, throughout his childhood and beyond.  It is both necessary and is a proportionate response to the circumstances as they come before the court.

95.              I have reached the clear conclusion that the analysis and conclusions of the Local Authority and the children’s Guardian in relation to this are correct.  I am satisfied that the prospects of A’s placement within his birth family have been fully explored.  I therefore agree and approve the Local Authority’s revised care plan in relation to A’s placement and his contact with his family.  I make a final care order and approve the care plan. 

96.              I turn then to deal with the placement application.  The Local Authority invites the court to make a placement order to allow it to put its plan into effect without delay.  The court has the application, statement of facts, annex B report and the CG’s report.  M is the only parent with parental responsibility and does not consent to the application.  In these circumstances I can only make the order if I dispense with her consent in accordance with section 52 of the 2002 Act, on the basis that A’s welfare requires it. 

97.              The judgment I have given in the care proceedings addresses my analysis in accordance with section 1 of the 2002 Act.  I adopt that analysis for the purposes of this application.  In the course of my judgment I have stressed the need for any further delay to be avoided for A.  In my judgment the plan of adoption for A is both realistic and achievable.  It needs to be achieved in his welfare interests as soon as possible.

98.              A placement order gives the best prospect of progressing the plan by providing the greatest legal security.  I have reached the clear conclusion that, sadly, adoption is the only plan which can meet A’s welfare interests, taking account of the respective Article 8 rights.  It is vital that the placement options are maximised, which is best achieved by the making of a placement order.  It is, in my judgment, both a necessary and proportionate step to take to achieve his future security.  In the light of M’s understandable opposition, I have reached the conclusion that I must dispense with her consent to the application on the grounds that A’s welfare requires it.  I do so and I make a placement order in respect of A. 

[Judgment ends]