England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT at Manchester
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION & CHILDREN ACT 2002

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester. WC2A 2LL
		22nd July 2014

Introduction

1. I am concerned with the interests of the child to whom I will refer as JJD for purposes of anonymity who was born on the 28^th February 2014 and is now almost 5 months old. I will refer to the parents and other family members by their initials. His mother is FR and his father is DD and to whom I will refer for convenience where appropriate as the 'mother' and the 'father' without intending any disrespect to either. The mother and father are living together but are not married. They have been in a relationship for something approaching just over a year and a half. The father has parental responsibility for JJD as his name is on his birth certificate.
2. The mother has three other children namely KA born on the 30^th September 2001 who is 12 years and 10 months old; CA born on the 3^rd September 2003 who is 10 years and 10^th months old; and RA born on the 25^th November 2009 and who is 4 years 7 months old. Although those three children had always lived with and been cared for by their mother, in July and August 2013 their care was transferred to their respective fathers as a result of residence orders made in the Wigan County Court because of the mother's relationship with JJD's father, DD.
3. DD is the father of two other children namely LD born on the 17^th July 2010 who is now just 4 years old and FD born on the 15^th June 2011 who is now 3 years old. At the age of 4 months, LD was found to have suffered significant and traumatic injuries which included some 24 fractures which were inflicted over a two to three week period and some bruising. The discovery of the injuries led to LD being removed from the care of his parents and care proceedings being commenced. I was the judge responsible for the management of those proceedings. The father and his then partner were charged with child cruelty under section 1 of the Children and Young Persons Act 1933 which proceedings were dealt with at the Crown Court at Minshull Street. FD was born during the proceedings. The local authority commenced proceedings in respect of him at birth and he was placed with LD's foster carers. The proceedings in respect of him and LD were consolidated.
4. In June 2011 the father pleaded guilty to the charge of child cruelty on what I was informed was a "full facts basis". The mother pleaded guilty basis on the basis that she had failed to protect LD. The father was sentenced to a three year term of immediate imprisonment and LD's mother was sentenced to 12 months imprisonment suspended for 18 months. The care proceedings in respect of LD and FD were not concluded until September 2012 on the basis of care orders with the children having been rehabilitated to the care of their mother. The father remained in prison until he was released on licence on October 2012. The rehabilitation to the mother broke down and the two children are now living with the maternal grandmother under a care order to the local authority.

Applications

5. The applications before the court made by the applicant local authority, Salford City Council, are for a care order in respect of JJD pursuant to section 31 of the Children Act 1989 and for a placement order pursuant to section 22 of the Adoption and Children Act 2002.

Circumstances leading to the proceedings

6. JJD's mother and father apparently attended the same High School where they knew each other but did not maintain contact after leaving school. They apparently made contact via the internet Facebook site in late 2012. They commenced a relationship in January 2013 and became engaged in February 2013. A referral was made to Wigan Children's Services by the father's Probation Officer on the 31^st January 2013 because he had informed her that he had started a relationship with the mother who had three children.
7. An initial assessment was completed by Wigan Children's Services with it being proposed that the mother would sign an agreement and would not allow the father any contact with her children. A meeting was convened in February 2013 at which it was agreed that the mother should be provided with all relevant information about the father's conviction and the injuries which had been suffered by LD. A further meeting was convened on the 25^th May 2013 as the mother had continued her relationship with the father despite the information she had been given about his conviction etc. Following on from that an Initial Child Protection Case Conference in respect of her three children was convened on the 7^th June 2013. This resulted in her three children being made subject of child protection plans.
8. On the 4^th July 2013 the mother informed Wigan Children's Services that she was pregnant with the father's child. There had been an issue in June when the mother and father were said to have been in breach of the working agreement. The father was found to be in the mother's home despite her having told the visiting social worker that he was not there even though the children were not actually present at the time. A short time after this in July, the father of the mother's youngest child, RA, refused to return her to the mother's care following contact. He commenced proceedings because of the risk being posed to RA by the mother continuing her relationship with the father. That resulted in the court giving him residence and ordering that DD should not have any contact with any of the mother's children.
9. Wigan Children's Services convened a legal gateway meeting which was attended by the mother and her solicitor at which she told the meeting that she intended to continue her relationship with DD. The father of KA and CA subsequently reported that the children had been in contact with DD. He was advised by the local authority to take steps to protect the children. He kept the two children in his care and he then made application to Wigan County Court In August 2013. He was granted residence orders. The children have remained in his care since then with supervised contact with their mother.
10. On 29^th October 2013 Wigan Children's Services convened a strategy meeting in relation to the unborn baby, at which the concerns regarding DD's criminal conviction where discussed. Wigan Children's Services concerns included that neither DD nor the mother had attended the parenting assessments; the mother had missed three appointments relating to domestic violence; she had requested a home birth; and there were concerns that she did not have insight into the conviction of DD. The decision was made to progress the matter to Child Protection and to present the case at a legal gateway meeting with the view to initiating care proceedings. Since then, Wigan Children's Services shared information with Salford Children's Services which indicated that DD did not attend any of the pre birth assessment sessions. The information shared included a report that the mother had stated in court that the relationship between her and DD involved a level of domestic violence, however, it was said she had later retracted this.
11. Before the Initial Child Protection Conference could be convened in Wigan the couple moved to the Salford area. Following the referral being received in Salford a pre birth core assessment commenced. Both the father and the mother engaged in this assessment attending all sessions as requested. The pre birth concluded that there were significant risk factors with regards to the baby when born. These included:

DD's offence in respect of the injuries to his very young child and minimisation of this offence and the potential risk

The couple having lied to the midwifery team the offence.

Lack of engagement with Wigan Children's Services

The mother having prioritised her relationship with DD over the needs and safety of her older three children resulting in those children living with their respective fathers

The mother failing to comply with written agreements put in place with Wigan to ensure the safety of her children by permitting allowing contact with DD

The couple not working openly and honestly with Wigan Children's Services

The concerns about DD allegedly being the perpetrator of domestic abuse in his relationship with his previous partner

.The mother's lack of insight into the risk DD poses to her unborn child.

DD's minimisation of the circumstances and lack of responsibility for the injuries he caused to his child leading to his conviction.

No work having being undertaken with DD into the circumstances leading to the injuries he caused to his child

12. Given all these factors, the local authority had no confidence the couple will work honestly and openly with Children's Services. It was considered that DD minimised and does not take responsibility for the injuries to his child, LD. It was recorded that he commented that he "took the blame in an attempt to ensure that LD was not placed in care" and the injuries were as a result of 'rough handling and rough play'. Without acceptance of responsibility for the injuries and how they were caused, it was the view of Children's Services that he will present a risk to his child. Children's Services were concerned about the mother and her response to the circumstances because she had failed to protect her other children leading to them being removed from her care and did not show any insight into the risk DD presents to children. It was considered that she would not be a protective factor for her child when born. Consequently, an Initial Child Protection Conference took place on 13^th January 2014. A decision was made that the unborn baby would be made subject to a Child Protection Plan under the category of Physical Abuse.
13. Following the conference a legal planning meeting was held on the 23^rd January 2014 which concluded that due to the high level of risk from DD in relation to the safety of the unborn child and concerns in respect of the mother's ability to protect, care proceedings should be initiated upon the birth of the baby. The mother and the father would be asked to sign section 20 accommodation agreement allowing the baby to be placed in foster care at birth and then care proceedings being issued. They were informed that should they not agree to sign the Section 20 agreement, an Emergency Protection Order would be sought due to the high level of risk.
14. Following JJD's birth, the parents declined to sign the Section 20 agreement and accordingly the local authority applied for an Emergency Protection Order which was granted on the 4^th March. JJD was discharged from hospital the same day and placed with local authority foster carers.

Progress of proceedings

15. JJD has remained with the foster carers he was placed with on the 4^th March to date. It is the intention of the local authority that he remains in this placement until a suitable adoptive placement can be identified for him. He is settled and has been making good progress in the placement.
16. These proceedings were then commenced and listed for a contested interim care order hearing before me on the 7^th March 2014. The mother resisted the making of the interim care order and was supported in that by the father. The children's guardian supported the local authority. The court determined that it was satisfied that the evidence made out the interim threshold and that the local authority plan for JJD's continuing removal from the care of the parents was necessary and proportionate based on his welfare interests.
17. At the hearing on the 7^th March 2014 the local authority confirmed that it had already undertaken viability assessments of family members nominated by the mother namely her sister, TW, and the father namely his mother, JA, both of which were negative. The local authority confirmed its intention to undertake a social work assessment of the parents which was to be filed and served by the 30^th April 2014. The proceedings were listed for a Case Management Hearing on the 21^st March 2014. The local authority arranged for the parents to have contact with JJD three times a week. Arrangements were made to enable the mother to breastfeed JJD and to have her expressed breast milk transported to the foster carers.
18. At the Case Management Hearing the father made an application for permission to instruct a psychologist to undertake an assessment of him. This application which was opposed by the local authority and the children's guardian was refused by the court since it did not consider such an assessment to be necessary. At that hearing the parents position was that they wished to be assessed by the local authority as a couple but indicated, as was recorded on the face of the order, that if the assessment concluded that they cannot be joint carers they would separate and the mother would want to be considered as a sole carer. The father had also said that he would leave the mother immediately if that was required to allow the mother to care for JJD. The social work and risk assessment to be undertaken by the local authority of the parents was then retimetabled to be filed by the 9^th May 2014. The proceedings were timetabled to an Issues Resolution hearing on the 3^rd June 2014. In view of JJD's age the local authority properly indicated that it was undertaking parallel planning with a view to adoption and directions as to a placement application were also made at this hearing.
19. The local authority completed its social work and risk assessment of the parents which concluded that it was unable to consider them as joint carers for JJD due to the risk of harm posed by them. Consideration of the mother as a single carer for JJD was not able to be given since the mother had not taken any steps to separate from the father. In light of the negative assessment of the parents and the absence of any other family members able to provide suitable care for JJD the local authority plan to provide permanence for JJD was one of adoption. The plan for adoption was endorsed by the local authority decision maker on the 20^th May 2014.
20. The local authority filed and served its final evidence in the proceedings as directed and lodged its placement application on the 30^th May 2014. At the Issues Resolution Hearing on the 3^rd June 2014 the parents remained opposed to the local authority plan for JJD. The children's guardian supported the plan for adoption. The matter was then listed for, and timetabled to, a final hearing to commence on the 21^st July 2014. In the interim period, the local authority agreed to undertake a Viability Assessment of the mother's other sister, BR, who had only contacted the local authority on the 29^th May 2014 to express her wish to be considered as a carer for JJD. The local authority had previously engaged with the paternal grandfather, AD, with a view to assessment of him as a carer but he withdrew from the assessment at an early stage. The local authority completed the Viability Assessment of BR which was negative as detailed in the report at C112-129.
21. The parents filed and served their final statements as directed and continued to oppose the local authority plan for JJD. A final case Analysis report was completed and filed by the guardian who continued to support the local authority plan for adoption for JJD.

The parties' positions

22. The local authority position is that it seeks a care order for JJD based on its care plan which is predicated on the basis that he should be placed for adoption. If the court approves the local authority plan and makes the care order, the local authority invites it to proceed to deal with the placement order application, to dispense with the parents' agreement to adoption and make the placement order. It is proposed that the parents' contact with JJD should be indirect contact on a yearly basis through the "letterbox" system. Post adoption counselling will be offered to the parents. If they engage with that consideration may be able to be given to them having a one off meeting with the prospective adopters. If the placement order is granted, the local authority proposes to reduce the contact between JJD and his parents to once weekly for four weeks and then reduce to once a month until a suitable placement is found. Once a placement has been identified the local authority will arrange a final visit which will be videoed and photographed for the benefit of both JJD and the parents. Miss Walker who represents the local authority today informed the court that there were a number of potentially suitable placements available for JJD and it was expected that any panel date for matching was likely to be as soon as September. The children's guardian supports the local authority's plan for JJD and the orders which are sought.
23. The parents remain opposed to the local authority plans. However, following conferences with their respective counsel, Miss Heppenstall for the mother and Miss Kajue for the father, I was informed by both that neither effectively sought to oppose the making of the orders sought by the local authority. Neither wished to challenge the evidence filed by the local authority or the children's guardian. The 'threshold criteria' for making the care order was not challenged. Both recognised what the likely outcome would be. However, both wished to have submissions made on their behalf and the father wanted the opportunity to address the court to reiterate what he has done to try to put himself in the position for him and the mother to be allowed to care for JJD.
24. I determined that it would be appropriate to hear from the father on oath in the event that issues arose on which the other parties sought to challenge anything he might say at this point. I then heard very brief evidence from the father who was subjected to some limited cross-examination. I then heard the briefest of submissions from the parties. Given the speed with which the hearing had been conducted and the issues involved, I indicated to the parties that I would take time to prepare a judgment which I would hand down at a hearing on Wednesday afternoon. I indicated to the parties that I proposed to prepare a type scripted judgment which I would endeavour to hand down in advance of the hearing if possible. In fairness to the parties, I took the view that I should inform the parties of the clear decisions at which I had arrived and which would be confirmed in my judgment. I confirmed that my decision was to grant the care order on the basis of approving the local authority plan for adoption. It followed from that that I would dispense with the parents' agreement to adoption and make the placement order. Having informed the parties what my decisions will be and having listed the matter for judgment at 2.30pm on Wednesday, I indicated that I would excuse the attendance of the parents should they not wish to come to that hearing and also gave permission to excuse the attendance of the social worker and the children's guardian. This is the judgment.

Legal Framework

25. A care order or supervision order may only be made on the application of a local authority if the Court is satisfied that the "threshold criteria" under Section 31(2) Children Act 1989 are established. Section 31(2) provides that:

"A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering or is likely to suffer significant harm; and (b) that the harm or likelihood of harm is attributable to the care given to the child or likely to be given him if the order were not made, not being what it would be reasonable to expect a parent to give him; …….."

26. Section 31(9) defines "harm" as meaning ill-treatment or the impairment of health or development and "development" as meaning physical, intellectual, emotional, social or behavioural development and "health" includes both physical and mental health.
27. If the threshold is established, the court then has to pass on to the 'welfare' stage with a view to considering what, if any, order is to be made. Consideration of this requires me to have regard to section 1 of the Children Act 1989 and to treat the child's welfare as paramount and to apply the 'welfare checklist' or relevant parts of it in arriving at my decision.
28. The "welfare checklist" is set out in section 1(3) of the Act and requires the court to particular regard 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 are each of his parents, and any other person or 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 this Act in the proceedings in question."

29. An order should only be made if I consider that making an order is better for the child than making no order at all. If the court considers that an order is necessary it should go on to consider the range of options available to it, which include where appropriate private law orders under section 8, Special Guardianship Orders under section 14A as well as supervision or care orders under section 31. Before making a care order the court has to consider the local authority's proposals for contact with the child and has to have considered the local authority's care plan for the child. Since the care plan is one of adoption and the local authority is seeking a placement order in the event of a care order being granted on that premise, I am bound to have regard to the welfare checklist as set out in section 1 (4) of the Adoption & Children Act 2002 (see paragraph 31 below) at this stage.
30. The court should only make such order as the facts require, and only then in compliance with the principles of necessity and proportionality set out in Article 8 (2) of The European Convention on Human Rights and Fundamental Freedoms 1950.
31. If, however, I approve the local authority plans and conclude that a care order should be granted in accordance with the local authority application, I then have to go on to consider the application for a placement order under section 21 of the Adoption and Children Act 2002 .
32. By virtue of section 1 of the Adoption and Children Act 2002, the child's welfare throughout his life is the court's paramount consideration. The court also has to have regard to the 'welfare checklist' set out in section 1 (4) of the Act. The matters to be considered are:-

(a) the child's ascertainable wishes and feelings;

(b) the child's particular needs;

(c) the likely effect on the child (throughout his life) of having ceased to be a member of his original family:

(d) the child's age, sex, background and any of the child's characteristics which are relevant;

(e) any harm 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 relationship is relevant, including –

(xcviii) the likelihood of any such relationship continuing and the value to the child of it doing so;

(xcix) 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 meet his needs;

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

33. Section 21 Adoption and Children Act 2002 provides that a placement order shall not be made unless the child is subject to a care order or the court is satisfied that the conditions for making a care order are met and only then if either the parents have consented to the making of such an order or, in the event that no such consent has been given, if the parents consent should be dispensed with.
34. Section 52 of the Adoption and Children Act 2002 provides that the court may only dispense with parental consent either if the parent cannot be found or is incapable of giving consent or the welfare of the child requires consent to be dispensed with.
35. I have reminded myself of the guidance from the Supreme Court in Re B [2013] UKSC 33 and the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 to be applied in cases involving care applications for children in respect of whom the plan is for placement for adoption. These authorities in line with the many other recent Court of Appeal cases dealing with care proceedings revisit and restate the key principles which underpin public law proceedings and provide a reminder that adoption for any child who has had to be removed from its parents care by state intervention must be seen as being the last resort.
36. In Re B-S we are reminded that there must be evidence from the local authority and the children's guardian to address all options which are realistically possible and should include an analysis of the arguments for and against each option. There must also be an adequately reasoned judgment which should demonstrate that the court has undertaken a global, holistic evaluation of the options for the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.

The Evidence

Threshold Criteria

37. There is no issue as to the threshold which I was told by Miss Walker, counsel for the local authority, was accepted by the parties.

Cathryn Mowll, social worker

38. Ms Mowll has been the allocated social worker for JJD since December 2013. She has prepared and filed two statements in the proceedings which are to be found at [C1-15] and [C85-101]. She and Lorraine Hayter undertook the social work and risk assessment of the parents which report is undated but is found described as the Children & Families Assessment at C69-84. She also completed the Viability Assessments of TW dated 6^th March 2014 [C18-35] and BR dated the 16^th June 2014 [C112-129]. She was also responsible for the care plans at [D1-8] and [D9-18]. In addition, she had prepared and filed a statement in connection with the placement application which is at PO13-PO34.
39. Ms Mowll and the other professionals involved have had access to documents from Wigan Council which are to be found at section F in the bundle and describe the history of that local authority's concerns and actions once it was alerted to the relationship between FR and DD. The statements prepared for the private law proceedings in respect of the mother's other three children are not the subject of challenge. The Wigan Council Case Note at F19-21 is significant and revealing since the record of what contact FR's eldest daughter disclosed having with DD significantly undermines the veracity of the accounts which they both purport to have given to this court in their statements and to the local authority in the course of its assessment.
40. I have been able to read and consider in detail all the local authority evidence filed. The risk factors which led to the local authority determining to commence the proceedings are briefly described at paragraph [11] above and fully set out in context in the initial statement of Ms Mowll at [C1-15].
41. The social work and risk assessment at C69-84 is a commendable piece of work which fully and helpfully addresses all the relevant issues in a concise format which indicates clearly why the local authority has reached its conclusion why it cannot consider the parents as joint carers for JJD. To their credit the parents engaged with the assessment and made it clear that they wished to be assessed as a couple despite the clear warnings they had been given as to the high risks which were associated with the father's history in relation to the failures in his parenting of his son, LD, the injuries which he had been responsible for causing and his criminal conviction as a result.
42. The assessment report reveals issues of concern in relation to each of the mother and the father's own family histories and functioning and their respective personal profiles. I comment that the father's version of his relationship with his former partner, DV, is very different from how the issues were presented within the context of the proceedings relating to LD as I recollect. The section regarding the mother's relationships with the fathers of her three children was illuminating and rightly raised significant concerns about her ability to choose appropriate partners and keep her children safe. At C74 the observations are made that –

"Given (the mother's) relationship history, the Local Authority would be concerned about (her) ability to recognise domestic abuse and safeguard her children from such. Information would suggest that in the past and more recently in relation to JJD given the circumstances he finds himself in, (the mother) has sought to place her relationships over and above the needs and safety of her children. It is concerning that she has not ended relationships which have sought to place her children at risk of harm. This raises concerns around her ability to protect and implement safeguards and protection"

This is the crux of the local authority's case in respect of the mother.

43. Within their consideration of the history of the relationship between the mother and the father, the assessors rightly, in my judgement, raise a concern about their decision to move into the Salford area in October 2013. Although perhaps naïve and unrealistic so far as the parents are concerned, this demonstrates a degree of what I would describe as an attempt unsophisticated manipulation on their part. That was, I think reflected, in what the father said when he gave evidence before me about the control he exerted on the mother to remain in the relationship with him but which was wholly contradicted by the professional assessment of the nature of their relationship which was described at C75 as follows –

"During this assessment, the couple appeared entirely dependent upon one another and it was clear that they spent the majority of their days together with very little independence of their own. The Local Authority perceived this to be unhealthy & would suggest that they are co-dependent on each other. There did not appear to be any control aspects observed within the assessment process however the couple are inter-dependent upon one another and this raised concerns in relation to their ability to challenge aggressive behaviour and protect a child should this be required in the future. (The mother) appears to idolise (the father) which has been clearly to the detriment to her own children and JJD being placed in the care of the Local Authority. During this assessment, the couple stated that they spend all their days together and there is little time that they do not spend together. The Local Authority would be concerned that there is evidence of (the mother) prioritising her relationship with (the father) above the needs of her children - both her 3 children who are now placed with their respective fathers and with JJD. Despite the serious and gravity of the concerns associated with (the father), (the mother) has been adamant that she wishes to remain a relationship with (him). Her level of dependence on him would raise serious concerns about her ability to report any concerns about his care of JJD should any surface which would only seek to undermine any support plan that was put in place."

44. Although the mother had been given all relevant information about the father's treatment of his son, LD, it was clear from the assessment that while she acknowledged the information as being "worrying and horrific", she "struggled when attempting to relate the risks (the father) posed to her own circumstances. Her view was that (he) is in a more stable relationship and as such his circumstances were different. She appeared to find it very difficult to translate the risks he posed to her own circumstances; attempting to present him in a more favourable light." [C76]
45. The mother's position was not helped by the father whose position in respect of the injuries sustained by LD changed within the assessment as is recorded at C77 as follows –

"(The father) has at times admitted that he inflicted the injuries on LD however in the final social work assessment session (he) reverted back to the stance that he had not inflicted the injuries, thus increasing the potential risk of harm to JJD. There are concerns relating to (the mother's) ability to protect in that she has a lack of understanding during discussions around the injuries which LD suffered she has been unable to demonstrate that she would be able to protect her baby. She has fully accepted the version of the events which has been provided to her by (the father) despite being informed that these explanations were not accepted by the medical professionals or the Court".

46. The injuries sustained by LD and the father's role in how those were inflicted or caused are of course central to all the issues in these proceedings. These issues are fully described within the assessment at C78 and 79. It is perhaps fortunate that one of the assessors, Lorraine Hayter, was very significantly involved in the proceedings relating to LD and had a clear understanding of what occurred in those proceedings.
47. It would be difficult to overstate the seriousness of the injuries sustained by LD when he was just three months of age or the way in which those injuries were inflicted given that there were some 24 fractures which were inflicted over a period of two to three weeks on at least two separate occasions. The father pleaded guilty to the offence of child cruelty on what I was told was a "full facts basis" as presented by the Crown. The mother pleaded guilty to the same offence on the basis of neglect and her failure to protect LD.
48. The father knew that

"the prosecution did not accept his accidental explanations and that at least some of the injuries were by assault; (he) having temporarily lost control. The prosecution concluded that it is clear on an overview of the totality of the injuries sustained over a period of 2-3 weeks that the injuries can only represent a pattern of abuse, cruelty and neglect of LD. Viewed in their totality an account of accidental injury offered by (the father) is not credible. It was concluded that LD had been abused on more than one occasion. (His) explanations were not accepted by the prosecution. The injuries are referred to as totally inappropriate and reckless treatment of a baby; lifting the baby by the leg, swinging by the legs, lifting by one or both arms; and rotating the arms over the head. The prosecution (supported by the paediatrician in this case) stipulates that (LD's mother) and (the father) must have been aware from their handling of LD on the days immediately following the sustained injury or injuries to legs and arms that he must have been in severe pain and discomfort and that was the cause of his distress. It is concerning that his parents did not seek treatment for this and did not mention any such discomfort when LD was seen by the GP, although this must have been obvious to them. Even after the very serious choking incident where (the father) described the baby as being lifeless and thought he had died neither parent sought immediate medical advice or treatment.

During the assessment process (he) has given several explanations as to how the injuries may have been caused, he has also admitted to being dishonest to the police in the early stages of their investigations in an attempt to protect his then partner and to ensure that his children did not get placed in care…..


When discussing the bruise to LD's ear (he), has admitted that himself and (LD's mother) would "pull on LD during arguments". (He) has reported to have done daft things, when asked to elaborate he discussed the choking incident and not seeking medical attention along with his handling of him. (He) initially described himself as a father who was doing everything for his child, making the bottles, changing him reporting that he and the mother would have arguments about (him) being obsessed with LD. (He) confirmed that he was taking steroids at the time of LD's birth, he reported that when he was angry he would do stupid things "picking him up by his legs". (He) talked about being ill at this point and that this was impacting on his mood and ability to care for LD adequately. (He) reported on one occasion that he stood at LD's cot and shouted "shut up" "go to sleep" reporting that LD was always crying, When challenged about why he had not seek medical attention for LD when his injuries had been discovered, he was unable to offer any adequate reason he stated "didn't know about taking baby to the doctors never thought" (He) was able to describe a number of reckless things he had done with LD, holding him above his head and doing "superman" holding him by his legs, picking him out of his cot by the arm placing him in a walker which then collapsed with LD inside. When challenged as to why he treated LD like this if he loved him and had bonded with him (he) replied that he was angry and out of control, and didn't give a 'shit about the consequences'.

49. The Crown Court judge in his sentencing remarks described it as "an appalling case of cruelty …on your part DD." The failure to seek medical assistance by the father knowing the "child…must have been in agony.." was "diabolical". The judge made it clear that he did not "accept all the explanations you have put forward" but said it was to his "credit that you now admit you have anger management issues". [63-64]
50. It is clear from the assessment that the father's acknowledgement and acceptance of responsibility for the injuries suffered by LD has fluctuated. At C80 these fluctuations are identified by the assessors who also identify some confusion in the father's understanding of what was being discussed. His suggestion that he only pleaded guilty due to the advice he had been given by his solicitor is not, in my judgement, as a judge who sits in the Crown Court dealing with similar cases from time to time credible. Nor indeed is his assertion that he did not cause the injuries and that he only accepted responsibility because he loved LD's mother and did not want anything bad to happen to her.
51. It is difficult to believe how anyone could treat a vulnerable, fragile and defenceless 3½ month old baby in ways that the father described. The father's behaviour was inexcusable and the reality is that most animals treat their offspring with more care and sensitivity than the callous, unthinking, stupid and cruel way the father behaved towards LD. It is surprising and indeed fortunate that LD did not actually suffer worse injuries than he did. It is understood that he made a good recovery although his experiences may have something to do with his challenging behaviour which led to the breakdown of his placement with his mother. What is remarkable is that JJD's mother does not appear able to have seen just how appalling the father's behaviour was towards a defenceless baby despite all the best efforts of professionals to show her how serious the father's behaviour was and what risk he posed to any infant child.
52. At C80 the assessors record that

"(The mother) has also been presented with the information from the court including a diagram of the body with the injuries. (She) stated that she felt sorry for the child, She reported that the information did worry her a little however was unable to see how this related to her own child. (She) acknowledged that (the father) had informed her of the way he had handled LD on occasions and that she has told him that this is inappropriate. She reports that it is horrible thing to believe that her boy friend would have done those things and that knowing him she would not have expected him to have inflicted them however that it is hard to know what was happening at that moment in time"

The sad reality is that she appears at all times to have accepted the father's version of events and has not been able to link his proven past behaviour to the risk he presents to their child.

53. The Assessment Report clearly sets out and identifies at C81 the High Risk indicators arising from the assessment and the family circumstances as well as identifying the Resilient/Protective Factors. The conclusion that the current level of risk is high is well supported in the social worker's outcome of risk analysis and resulted in the conclusion that the local authority is unable to consider them as joint carers.
54. In her final statement Ms Mowll reiterates the history of the local authority's involvement and the role played by Wigan Council Children's Services. She describes JJD as a very happy, content, alert baby who is thriving and developing. She confirms that the parents have attended all contact in good time. She says that they have "demonstrated parental warmth and affection and offer plenty of interaction and stimulation". She says that the mother "is very competent in meeting the needs of her child; on occasion, (the father) requires support and guidance which is offered by (the mother) and readily accepted by him." [C88] She describes steps taken by the mother to breastfeed JJD in contact and says that contact has been a happy experience for JJD and the parents.
55. She confirms that the parents have engaged well by attending all assessment sessions and other appointments. She confirms the outcome of the various Viability Assessments which were negative and attempts made to engage in assessment of the paternal grandfather and one of the mother's friends which were unsuccessful. At C93-94 she sets out relevant information in respect of the assessment of family members and reasons as to why none is considered as a viable carer.
56. She has summarised the outcome of the social work assessment separating out the positive factors and the risk factors with a brief analysis of some of the issues as to the risk which give rise to the local authority concerns. Within the context of her analysis of the welfare checklist issues she rightly focusses on the parents' capacity to meet JJD's needs which centres entirely around the risk issues in respect of the father who "remains a high risk to children, particularly young children who are totally dependent on their carers to provide care and safeguard them from harm." [C97]
57. In respect of the mother in respect of whom there have never been any concerns about her parenting, Ms Mowll says at C97

"She however has prioritised her relationship with (the father) over her relationship with all of her children. This has resulted in her three older children no longer being in her care and JJD being placed in foster care. (She) has been fully aware of the consequences of maintaining her relationship with (the father) however has continued to prioritise this relationship over maintaining her role as full time mother to her children. (She) on numerous occasions has been provided with information in respect of (the father) and the risk he presents. She shows no insight into the risk and cannot contemplate that he may present a risk to their child. Due to (her) attitude and beliefs she cannot be considered a protective parent for JJD"

She goes on to add that –

(She) has stated she will end her relationship with (the father) if this would allow her to care for JJD, (the father) has said he would walk away. Neither have made any attempts to end the relationship despite the significant level of concerns held by the local authority in respect of (the father)."

58. In arriving at her conclusion the social worker has properly considered the requirements of Re B-S and sets out again her reasons as to why the parents cannot be considered as carers whether with or without support. She reiterates why extended family members are not an option for consideration leaving the only effective options for consideration as being long term fostering or adoption. She rightly in my judgement discounts long term fostering as an option and concludes that JJD should be placed for adoption.


FR (Mother)

59. The mother has filed two statements of evidence dated the 20^th March 2014 [C65-68] and the 18^th June 2014 [C130-134] together with two other Position Statements dated the 6^th March 2014 [C42-43] and the 28^th May 2014 [C102-104]. I have read and considered all of these.
60. In her final statement the mother confirms, as she has throughout the proceedings, that she does not agree to the plan of the local authority. She asserts her belief that she and the father are able to offer a safe and secure home to JJD while saying that she accepts that the father poses some level of risk to JJD. She says she does not recognise the picture of the father which is painted by professionals. She goes on the assert that she has always said that she is willing to separate from the father if it prevents her from losing JJD.
61. She contends that she and the father are not co-dependent upon each other as is described by the social work assessment. She goes on to suggest that the local authority has overstated her problems about lack of support within her family and that she is now in regular touch with her mother and sister, BR, again. She acknowledges breaching the written agreement but says that was not intentional and that it will not happen again. She also seeks to take issue with the suggestion made in the assessment about the reasons as to why she and the father moved from Wigan to Salford.
62. She reiterates her willingness to separate from the father if it is the only way for JJD to be returned to her care and goes on to say that she wanted the opportunity of giving evidence in the final hearing. She concludes by asserting that she does not consider it fair to be forced to make the decision to leave the father immediately without a frim indication from the judge that it is strictly necessary.
63. The mother did not in the event take the opportunity of giving evidence before me but asked her counsel, Miss Heppenstall, to make submissions on her behalf. Those submissions were in effect simply a reiteration of what the mother had included in this final statement and the Position Statement which had been placed before the court at the Issues Resolution Hearing.

DD (Father)

64. Like the mother the father has filed two statements of evidence dated the 18^th March 2014 [C47-52] and the 14^th July 2014 [C135-145] together with two other Position Statements dated the 6^th March 2014 [C36-41] and the 2^nd June 2014 [C107-111]. I have read and considered these. In addition, the father gave brief oral evidence on Monday.
65. The father told the court he wanted to give evidence to explain how he had changed since the events which resulted in the injuries to LD. He said he had undertaken work with his probation officer on a one to one basis while on licence dealing with issues around the offences. This reiterated what has been included by his probation officer, Emma Crook, in an undated letter which had been belatedly made available. He considered that he had benefitted and matured as a result of the work he had done. In addition, he said he had tried to get help through his GP who he had rung to ask to if he could be referred for a psychological assessment. He said he had been put on a waiting list.
66. He thought he needed help to understand things and to give him the opportunity to show how he had changed but accepted that he was not yet ready to care for a child. He said there had been some violence and arguing between him and his ex-partner in their relationship and he had been on steroids. He had now done a number of course while he was in prison. He said he had been knocked back for therapy by his GP and had gone on to the internet to see if he could find help. He had made contact with "4TherapyUK" and had undertaken counselling sessions with BS. He said he had been to about 20 sessions which he had £50 per session for but with travel he said each session had cost him about £65. He had seen the counsellor who had thought was a psychologist until May 2014 when he received a letter to go for an appointment with a psychologist. He had been to see the NHS psychologist in May 2014 at Lever Chambers who, he said, had told him that he did not consider that he needed to have any therapy. He said he wanted to be given a second chance and the opportunity to show that he was now a changed man.
67. In the course of very brief cross-examination by Miss Walker on behalf of the local authority it became very clear that the father was an unreliable historian. To his credit though he readily acknowledged that he accepted that he was not ready to be considered as a carer for JJD. In reply to Mr Cryne who represented JJD instructed by the children's guardian, the father reiterated his willingness to separate from the mother to give her the opportunity to care for JJD. He agreed that he and the mother had just recently moved to another house and had not taken the opportunity to separate. That he said was because he had no one in the family with whom he could go to live. He then went on to say that the reason they had not separated is because he had pressurised her to stay living with him. That came as something unexpected and I retired to give the parties but especially Miss Heppenstall the opportunity to discuss and consider the position with her client.
68. When the hearing resumed Miss Heppenstall was able to confirm that, contrary to what the father had said, the mother confirmed that she had never been forced to stay in the relationship and did not feel scared by the father. It remained her position as she developed in her submissions that she would ideally want the chance to be able to parent JJD as a couple with the father.
69. Much of what the father said in his oral evidence was simply a repeat of the information which was already before the court in his statements. However, his unreliability as a historian and the disputed issues he raised about his position with regard to the mother simply left me questioning his motivation and whether he really did understand what the issues were.

Sharda Mahmood (children's guardian)

70. Sharda Mahmood, the children's guardian, has prepared two reports in connection with these proceedings being an Initial Analysis Report for the Case management Hearing dated the 14^th March 2014 [E1-9] and what is described as a Revised Cafcass PLO Case Analysis dated the 24^th June 2014 in respect of the care and placement applications which is at [E30-39]. In addition a Position Statement dated the 29^th May 2014 was lodged on her behalf for the IRH on the 3^rd June 2014.
71. The guardian met with the parents on the 19^th June 2014 to discuss her position with them. They told her they understood the reasons that the local authority considered it could not place JJD in their care. They acknowledged that they did not think the court would agree to JJD being placed in their care because of the concerns raised. They talked about separating with the father saying he would move out on the same day if asked to separate by the court. It is clear from what the guardian sets out in relation to her discussion with the parents that they had not thought through or considered other options. She expressed her concern that both parents appear to expect to be prompted or instructed on issues in respect of which they should be making their own decisions on their own initiative. The guardian made it clear that she would not support any plan which would mean delay in final decisions being made for JJD.
72. In her report the guardian makes it clear that she agrees with the concerns of the local authority and supports its plans for JJD. In undertaking a permanence analysis for JJD, the guardian has reminded herself of the expectations of what Re B-S requires professionals to consider when adoption is one of the outcomes under consideration. She rightly identifies in my judgement the only two realistic options which need to be considered in the light of the conclusions reached in relation to placement with the parents or within the extended family. She has considered the positives and negatives of adoption and long term fostering and rightly again in my judgement concludes that the benefits of adoption outweigh the negatives which will arise in relation to the loss of relationships with his birth family.
73. The guardian identifies the harm which JJD would be at risk of suffering based on her distillation of the issues identified by the local authority in its assessment of the parents. In her discussion of the relationship which JJD has with any relatives the guardian addresses the issue of contact which she asserts must be considered within the framework of the local authority's long term plan for him. Given the potential difficulties in trying to promote direct contact with birth parents when a child is in an adoptive placement, the guardian concludes that the local authority proposal for indirect contact is entirely appropriate.
74. In his brief submissions on behalf of the guardian, Mr Cryne reminded the court of the primacy which should be given by the court to the timeframe for the child in relation to welfare based decision making. He suggested that there was no good reason to extend the current timeframe and the issues raised by the parents in their final statements and submissions made today about separating were issues which should have been addressed a long time ago. The fact that they had only very recently moved together to a new address undermined any confidence in what they said about separating and demonstrated that they clearly remained enmeshed in a strong emotional relationship. The guardian was very clear in her conclusion that for JJD there was no other option other than a plan for adoption which was why she invited the court to make the care and placement orders.

Discussion of Evidence

75. There is of course no challenge by either the mother or the father to the social worker evidence before the court or the evidence of the children's guardian. Let me say that I commend the work which the key social worker, Ms Mowll, has undertaken within the context of these proceedings. The standard of the statements she has provided and the quality of the various reports she has completed have been exemplary. I should also say that the social work and risk assessment was an impressively concise but cogent piece of work.
76. Consideration of the issues in these proceedings must start with an understanding of the serious injuries which were suffered by the father's eldest child, LD, when he was a tiny, defenceless 3½ month old baby and the way in which these were caused and/or inflicted by the father. Reviewing the medical reports of the Consultant Paediatric Radiologist, Dr Brennan Wilson, and the Consultant Paediatrician, Dr John Sills contained in section E of the Core Bundle from the previous proceedings relating to the father's two older children and the Prosecution's Statement of Facts and the judge's Sentencing Remarks in Section F can leave no one under any illusion about the seriousness of the injuries and the uncaring, callous and cruel nature of the father's conduct. What is utterly bewildering to use the word adopted by Miss Walker in her submissions is how this mother has seemingly never been able to see or accept that despite all the best efforts of the professionals to help her.
77. The father has served a sentence of imprisonment and has undertaken some offence focussed work whilst on licence following his release from custody in October 2012. He has also undertaken some counselling with "4TherapyUK" which he arranged on his own initiative and paid for. I have no doubt that he has made significant efforts to enlist help to address his problems and parenting deficits revealed by his treatment of LD and he should be given credit for that. However, what seems to me to be clear from the local authority assessment is that it is difficult to assess or gauge the impact of any of this work on him, his understanding of parenting or his parenting abilities. It is very clear to me that he has within the social work assessment both minimised and misrepresented what he actually did and left the social workers rightly categorising him as still being a high risk to any infant child. In terms of the welfare checklist, consideration of these issues identifies the risk of harm which JJD was at risk of suffering when the local authority determined to intervene in his young life following his birth. These issues also demonstrate the father's lack of or limited capacity to meet the needs of JJD because he clearly remains an unassessed and unresolved risk as a carer for any infant child.
78. The risk of harm arises on consideration of the issues in relation to the mother's parenting capacity and her ability to meet JJD's needs. No issues arise in relation to her ability to provide basic care for a child. So far as is known, she had provided a good standard of care to her three older children until they were removed from her care as a result of her relationship with the father. She has been seen to provide a very good quality of care to JJD within contact in these proceedings. What the social work assessment shows is that she has historically, it seems, placed her relationship with the fathers of her four children over and above the needs and safety of her children. This raises concerns around her ability to protect and implement safeguards and protection. These concerns are well founded in my judgement.
79. As the social workers reported

"There are concerns relating to (the mother's) ability to protect in that she has a lack of understanding during discussions around the injuries which LD suffered she has been unable to demonstrate that she would be able to protect her baby. She has fully accepted the version of the events which has been provided to her by (the father) despite being informed that these explanations were not accepted by the medical professionals or the Court".

80. The strength of their relationship and the suggestion of their being co-dependent is an issue which also impacts upon their joint ability but especially the mother's to meet JJD's needs. I entirely concur with and endorse the social workers' assessment that the "(The mother) appears to idolise (the father) which has been clearly to the detriment to her own children and JJD being placed in the care of the Local Authority." I cannot see any other basis for why this mother has prioritised the relationship with the father above the needs of all four of her children which, given the ages of the older three, I find utterly mystifying given the gravity of the serious concerns identified with the father. She provides no explanation in her statements or in the context of discussions within the social work assessment for the choice she has made. I anticipate that all the professionals who have had dealings with her and the father with a knowledge and understanding of the offence which the father had been convicted of experience the same sense of bewilderment at her determination to maintain her relationship with the father.
81. Throughout the proceedings the mother has been adamant that she wishes to remain in a relationship with the father. The suggestion that they would now be prepared to separate if she were to be given the second chance she has asked for in this hearing simply is not credible in my judgement. It is not an issue which I am prepared to contemplate at this stage in the proceedings. It is a matter which both she and the father well know comes far too late in the day so far as JJD is concerned. It is a matter which I raised with the mother in the first two hearings before me in March. I was surprised when I saw at the Issues Resolution Hearing that they remained together as a couple. I can only conclude now that Mr Cryne's categorisation of them as enmeshed in a strong emotional relationship is absolutely right.
82. The final statements which the mother and the father filed in response to the local authority case both confirm and strengthen, in my judgement, the conclusions of the social work assessment that the local authority cannot conceivably consider placing JJD in the joint care of the parents or indeed in the sole care of the mother.
83. Consideration of the other 'welfare checklist' issues so far as JJD is concerned lead to the obvious conclusion that at age of nearly 5 months he is a young child who is not capable of expressing his wishes and feeling. He has the needs of any young child for a stable and settled family life and to be provided with appropriate physical care with love and affection and encouraged to develop to his full potential in a safe and secure environment. He is a healthy child who is developing well and has a good attachment to his foster carers. He has been given a positive start in life through the contact which he has had with his parents. The mother is to be commended for being able to breast feed him.
84. The change in his circumstances of making the orders sought by the local authority will mean that his contact with his parents will cease in accordance with the local authority plan. While that will involve a loss it is not one which is likely to be meaningful for him at this tender young age. The good start which he has had to date should mean that a change in placement provided it is managed well in a sensitive way should mean that he will be able to form good relationships with new carers and, as the guardian has identified, he is at the optimum age for this to be achieved.
85. It is within the context of those conclusions that I have to consider what order to make in respect of JJD. Since the care plan is one of permanence through adoption and the local authority is seeking a placement order in the event of a care order being granted on that premise, I am bound to have regard to the welfare checklist as set out in section 1 (4) of the Adoption & Children Act 2002 as referred to above at paragraph [37] when considering whether to grant the care order which the local authority seeks.
86. The guardian has considered the relevant checklist issues in her final Analysis report as indicated above at paragraph [59]. The likely effect on JJD of having ceased to be a member of his original family and becoming an adopted person is in my judgement unlikely to be an issue of great significance given his age. She also addresses the issues of JJD's relationships with relatives. The reality is that the only significant family relationship which JJD has is with his mother and father. He has no relationship with his half siblings with whom he has never had any contact. This leads the local authority and the guardian to conclude that if a placement order is made there should only be indirect contact with the mother and the father as set out in the care plan. That, in my judgement, appears to me to be the right approach to adopt if a placement order is made.
87. I have had the opportunity of reading and considering the documents in the placement application which is before the court and which are included at section PO in the court bundle.

Conclusion & Orders

88. This is in my judgement something of a sad and tragic case since this mother who was by all accounts providing a good standard of care for her three older children has given up them and the prospect of caring for her baby, JJD, all for the sake of continuing a relationship with a man who for the foreseeable future will remain a significant unassessed and unresolved risk to any infant or very young children. It is quite simply difficult to understand from any perspective. I am told that the mother has no intention of seeking to disrupt the lives of her other three children who are settled and making good progress with their fathers. She has supervised contact with the children on the basis that she cannot bring the children into contact with DD.
89. This is not a case which is in any sense finely balanced. Indeed once it was clear that the mother had determined to remain in a relationship with JJD's father, the evidence overwhelmingly determined that there was no prospect of JJD being placed in their joint care. The exclusion of any extended family members from consideration as prospective carers left the local authority, the children's guardian and the court with only two options to consider. In real terms, given JJD's age, his good health and development the only truly realistic option for consideration was to a care plan to achieve permanency by adoption.
90. I am satisfied that the local authority and the children's guardian have addressed the issues in a proper manner giving due weight to the relative pros and cons of the realistically available options in accordance with the requirements of Re B-S.
91. In the circumstances, bearing in mind that I have to treat JJD's welfare as paramount I have no hesitation in saying that I approve the local authority's plan for JJD. I will grant the care order to the local authority. The making of the care order is, in my judgement, given the circumstances of JJD as set out above necessary to protect and safeguard his interests and is a proportionate response. That then requires me to pass on to deal with the placement application.

Placement application

92. I repeat that I have read and considered the relevant documents in respect of the application for a placement order. The children's guardian supports the application for a placement order. I have of course given specific consideration to the welfare checklist as it applies to the Children Act 1989 in approving the local authority's care plan for adoption for JJD. The checklist in respect of the Adoption and Children Act 2002 which I am required to have regard to in making any decision in respect of the placement order application is, of course, slightly different. The court is required to consider two additional requirements where relevant which are –

"Section 1 (4) (C) the likely effect on the child (throughout his life) of having ceased to be a member of his original family"

and also

"Section 1 (4) (f) the relationship which the child has with relatives, and with any other person in relation to whom the relationship is relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of it 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 meet his needs;

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

93. These issues I addressed at paragraph [72] above. I do not intend to repeat myself.
94. I am satisfied that, on all the evidence before me, adoption is in best interests of JJD. There is no other realistic available option and the reality is that nothing else will do so far as JJD is concerned. His mother and father understandably, in the circumstances, do not agree to him being placed for adoption. I must therefore consider whether their agreement can be dispensed with on the basis that JJD's welfare requires it. Having reached the conclusion that adoption is in his best interests then, in my judgement, it follows that I must dispense with the agreement of the mother and father to adoption in accordance with section 52 of the Adoption and Children Act 2002 because JJD's welfare requires it. I, accordingly, dispense with their agreement to adoption. I make the placement order in respect of JJD.
95. Although the issue has not been canvassed on behalf of any party, I am conscious that it might be said that the making of a care or placement order may be a disproportionate interference with the Article 8 rights of both the child and his parents. I have borne this in mind in my consideration of the issues before me since the making of a care order and a placement for adoption order is unquestionably a substantial interference with a parent's right to respect for family life. In my judgement, such a step could only be regarded as interference in the child's right to respect for family life if there was a real prospect of him being successfully rehabilitated to the care of a parent or parents within an acceptably short timescale. That is not the position for JJD and consideration of his Article 8 rights leads to the conclusion which will override the rights of his parents which I regard as a necessary and proportionate response to the circumstances in which JJD now is.

Orders

Care Order

96. The orders which I make and will confirm at the hearing on the 23^rd July 2014 in relation to the local authority application under section 31 in respect of JJD are –

(a) Care order to the local authority, Salford City Council.

(b) The local authority may disclose copies of relevant documents in the proceedings to any prospective adopters with whom it is proposed to match the child, JJD, for adoption.

(c) The local authority solicitor shall provide a copy of the judgment to the Independent Reviewing Officer for the child.

(d) There be no order for costs save for detailed assessment of the Public Funding Certificate costs of each of the assisted parties.

Placement order

97. In respect of the placement application in respect of JJD, I will make the following orders –

(a) I dispense with the consent of the mother and the father to adoption on the ground that JJD's welfare requires it.

(b) The local authority may place the child, JJD, for adoption.

(c) There be no order for costs save for detailed assessment of the Public Funding Certificate costs of each of the assisted parties.

98. This concludes the judgment.