England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEICESTER                                      LE13CO1377

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down on 29^th August 2014)

 

 

 

 

Leicestershire County Council v D

 

 

 

 

Miss Nassera Butt for the local authority

Miss Laura Vickers for the first respondent mother

Miss Nadia Mansfied for the third respondent father, ND

Mr Edward Hosking for the fourth respondent father, DB

Mr A Wisniewski for the Children’s Guardian

 

 

 

 

 

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

 

JUDGE BELLAMY:

1.         On 5^th December 2013 Leicestershire County Council (‘the local authority’) applied to the court for care orders in respect of four children, David aged 7, Helen aged 5, Philip aged 4 and Ben aged 2 (not their real names). The mother of all four children is SM. David’s father is JM, Philip’s father is ND and Ben’s father is DB. Helen’s father is believed to be AR. The local authority’s efforts to trace AR have proved unsuccessful.

2.         This case came before me for final hearing in May. David was made the subject of a final care order and placed in long-term foster care. With respect to Philip the court made a child arrangements order which provided that he should continue to live with his father, ND.

3.         I was unable to make final orders with respect to Helen and Ben. The local authority proposed that Ben be made the subject of care and placement orders. The plan for Helen was less clear. Although the plan before the court proposed that she be placed in long-term foster care it was clear that the local authority was still actively considering the possibility of applying for a placement order. Given that Ben had lived with Helen all his life, that gave rise to questions about whether Ben and Helen should be placed for adoption together and, if placed separately, whether ongoing post-adoption direct contact may be in their best interests.

4.         In light of those uncertainties I adjourned the final hearing of the applications relating to Helen and Ben to enable the local authority to file evidence from its adoption team and to complete an assessment of sibling attachment. I made interim care orders on the basis that Helen and Ben should be removed from the care of their mother and DB and placed in short-term foster care. I also ruled out both the mother and DB as long-term carers for either child.

5.         All of this is set out in detail in my earlier judgment: Re D (Children) [2014] EWFC B57. This present judgment should be read alongside my earlier judgment. Together they form a continuum.

Update

6.         David has been in his present foster placement since these proceedings were issued. He is the most damaged of these four children. He is happy, settled and thriving in his placement. He was relieved to be informed that the court had made a final care order and that he would be staying in his present placement. He is having monthly contact with his siblings. His contact with his mother is being progressively reduced. The intention is that that contact should take place three times per year.

7.         At the time these proceedings began, Philip was the subject of a shared care arrangement spending his time equally with each of his parents. Since October 2013 he has lived in the full-time care of his father. He is being well cared for by his father and is settled and happy. He is the least damaged of these four children. In addition to contact with his siblings Philip should be having monthly contact with his mother. Since the hearing in May the mother has only had contact once, on 9^th August. ND now applies to the court for the child arrangements order to be varied by reducing the frequency of contact to a minimum of three times per year, to take place at the same time as the mother’s contact with David. ND is agreeable to the mother having more contact than that if she wishes, but she must take the initiative.

8.         Helen had lived with the mother all her life prior to the making of an interim care order on 20^th May 2013. Helen was removed from her mother’s care that day and placed with Ben in short term foster care with very experienced foster carers. Although Helen is closer to her mother than any of her siblings, in her most recent statement, the social worker says that

‘At the time of being placed in foster care, Helen showed little distress about being removed from her mother’s care. Immediately upon entering the foster carer’s home, Helen was exploring her environment, enjoying the toys and interacting with the foster carers.’

 

Though settled in her foster placement, Helen has spoken about missing her mother and has become distressed during the taxi journey back to her foster placement after contact with her mother.

9.         Ben was also removed from the care of his parents on 20^th May. The social worker says that,

‘Immediately upon arrival in his foster placement, Ben walked through the door and approached the female foster carer for a cuddle. Ben subsequently approached each of the foster carers’ adult children and the male foster carer in a similar manner as he met each of them. Ben showed no distress at his removal from his family or from the introductions to new people.’

 

Unlike Helen, Ben shows no sign of distress either before or after contact. The only distress he shows is when being fastened into his car seat, something which he appears to dislike.

Helen

10.     I have noted the earlier uncertainty about whether the plan for Helen should be long-term foster care or adoption. The concerns about the appropriateness of seeking an adoptive placement for Helen related to her age and to the damage she has suffered whilst in her mother’s care. At this hearing I have had the benefit of evidence from the local authority’s adoption team. That evidence is very positive about the prospects of being able to find an adoptive placement for Helen. The local authority has two in-house families who have been approved for adoption of a child in Helen’s age group and are considered to be a potential match. A search of the National Adoption Register has revealed that there are currently 30 families on the register who are approved to care for a girl of Helen’s age.

11.     This has caused the local authority to change its final care plan for Helen. It is now proposed that there should be a time-limited (6 month) search for an adoptive placement at the end of which, if no placement has been identified, Helen should be placed in long-term foster care. The plan for adoption has been approved by the local authority’s Agency Decision Maker. An application for a placement order has been issued. That application is opposed by the mother.

12.     In my earlier judgment I noted that in August 2011 ND had issued an application for contact with both Helen and Philip. It is clear that at that time ND believed that he was Helen’s biological father, a belief which the mother had done nothing to discourage. Up to that point Helen, too, had been brought up believing ND to be her father. DNA tests established that he is not her father. His application proceeded with respect to Philip only.

13.     This final hearing resumed on 22^nd August. That very morning, just minutes before coming into court, ND informed his counsel that he would like to be considered as a long-term carer for Helen. The late emergence of kinship carers is not a new phenomenon. However, I cannot recall another case when there has been such a late expression of interest.

14.     The local authority concedes that as ND is already caring well for Philip and has accommodation suitable for caring for two children, a viability assessment of ND would undoubtedly be positive. What is required is a full assessment. That would cause delay. At Helen’s age, further delay may make it even more difficult to find an adoptive placement for her if the possibility of placement with ND were ultimately to be ruled out. However, against that, the social worker was clear in her evidence that if it were not possible to find an adoptive placement for Helen then placement with a sibling (Philip) may be better than placement in long-term foster care. After hearing ND’s evidence and, with the consent of the other parties, having spoken to ND during the short adjournment, the guardian supported the appropriateness of undertaking a full connected persons assessment of ND.

15.     I was persuaded that an assessment of the offer made by ND is necessary in order to enable the court to dispose justly of the applications relating to Helen. As there is an experienced independent social worker able to complete the assessment more quickly than the local authority could do so in-house, I gave permission to the parties jointly to instruct the ISW. The final hearing in respect of Helen has been adjourned until 27^th November.

Ben

16.     The decision to again adjourn the final hearing in respect of Helen raises the question of whether the final hearing should also be adjourned in respect of Ben. If it is not necessary to adjourn the final hearing in his case, there remains the question of what order is appropriate and proportionate

17.     A ‘Sibling Assessment Report’ has been prepared by the allocated social worker, Sian Edwards. It is a thorough and persuasive piece of work. It was undertaken following the placement of Helen and Ben in foster care.

18.     Ms Edwards notes that Helen likes to be the centre of attention and finds it difficult to share adult attention with other children, whether her siblings or her peers. The following passage from her assessment is of particulate note. Ms Edwards says that,

‘Helen pays very little attention to Ben. He will approach her if she has something which he wants. In these instances, Helen’s reaction is extreme; crying and screaming excessively and saying he has hurt her if there is the slightest physical contact. Helen can be quite spiteful towards Ben in her attempts to get him in to trouble. Helen will tolerate Ben playing independently within the same area as her as long as he does not attempt to enter her physical space. Helen will interact positively with Ben only if this is facilitated by the adults around her. If Helen and Ben are encouraged to play turn taking games which require interaction, Helen will try to take over and play for Ben in an attempt to meet her own emotional needs – specifically to be in charge and to be able to win. Most significantly in terms of decisions about the two children’s long term placements, Helen is described by foster carers as impeding Ben’s ability to fully progress and in particular to develop socially because of her attempts to prevent Ben from having sufficient adult attention.’

 

19.     With respect to Ben, the assessment records that,

‘When having contact with all of his siblings, Ben will largely play independently. His inclusion in the sibling group is not encouraged by any of his siblings unless this is prompted by adults…Ben does not show any affection to any of his siblings…Ben will attempt to copy his siblings and will imitate their use of toys, suggesting he pays an interest in their actions even if he does not attempt to join in. However, there is no sense that this is part of any special relationship, over and above the reactions he might have when reacting with other older children.’

 

20.     In her oral evidence the social worker underlined the point, saying that interaction between Helen and Ben is rarely positive and that the foster carers have observed that Helen undermines Ben’s needs on a daily basis.

Placement of Helen and Ben separately or together?

21.     The conclusion drawn from all of this is that it is not realistic to expect both Helen’s and Ben’s ‘considerable long term care needs’ to be met in a single adoptive placement. The guardian supports that conclusion.

22.     On behalf of the mother, Miss Vickers submits that if there is a possibility of Helen and Ben remaining together then it would be inappropriate to make a final order with respect to Ben ahead of the adjourned final hearing with respect to Helen. She also submits that the issue of ongoing inter-sibling contact cannot adequately be addressed until the court has made a decision about the appropriate final order for Helen.

23.     In my earlier judgment I came to the conclusion that,

'153.    Helen and Ben have always lived together. Without the assessment of sibling attachments it is unclear what the impact would be on Ben of separating him from his sister. Even if the final care plan for Ben were to be approved, it is clear that the local authority does not intend to act on that plan until the assessment of sibling attachments has been completed. Although the guardian would not support a plan of long-term foster care for Ben, the possibility that the local authority may yet propose that Helen and Ben be placed together in long-term foster care cannot be ruled out.

154.     I have come to the conclusion that against the background of uncertainty which I have described, it would be inappropriate for the court to consider making final orders with respect to Ben. The applications relating to Ben and Helen should continue to run in tandem. In both cases what is required now is robust case management in order to ensure that the delay is kept to a minimum.’

 

24.     In the light of the evidence now before me I am satisfied that Helen and Ben would be better placed separately than together. Their sibling bond is not close. There is clear evidence, including evidence from experienced foster carers, that placement of Helen and Ben together gives rise to a real risk of Ben’s progress being impeded by his half-sister.

Outcome for Ben

25.     In paragraphs 119 to 125 of my earlier judgment I set out the law to be applied in determining welfare issues. The decision of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 makes it clear that the following principles of approach should be followed:

(i)         First, the court should identify the realistic outcome options which ought to be evaluated.

(ii)       Second, the court must evaluate the positives and negatives of each option. In undertaking this evaluation the court must have regard to the support which the local authority may reasonably be expected to provide in order to underpin the placement.

(iii)     Third, the court must evaluate the options side by side in order to determine which is the most appropriate and proportionate outcome. In undertaking this final part of the evaluation exercise the court must bear in mind that adoption should only be sanctioned where the child’s welfare needs are such that nothing but adoption will do.

26.     In this case, what are the realistic options for Ben? At paragraphs 155 to 158 of my earlier judgment, and following the approach set out in North Yorkshire County Council v B [2008] 1 FLR 1645, I concluded that the mother and DB should be ruled out as long-term carers for Ben. In the absence of any other possible kinship carers I concluded that the only viable alternatives for him are long-term foster care or adoption. Nothing I have read or heard at this hearing leads me to a different conclusion.

27.     Foster care would have some advantages for Ben. In particular, it would enable him to continue to have contact with David and Philip and possibly also with Helen unless she is placed for adoption. However, the assessment of sibling attachment does not suggest that Ben is strongly attached to any of his siblings. Whilst a continuation of contact may be helpful (and I am aware of research evidence that the relationship between siblings is normally the longest lasting relationship most people have) it is clear that in this case inter-sibling contact is not the driving factor in determining outcome.

28.     There are also some acknowledged negatives to long-term foster care. Firstly, it is inherently insecure. Whilst Ben may be fortunate to find a foster family who are willing to commit to him during his minority, there is no obligation (legal or moral) on a foster family to commit to caring for a child throughout his minority. The vicissitudes of life and their impact on the foster family could at any moment lead that family to the conclusion (possibly a painful conclusion) that they are no longer able to care for Ben. That is a risk that cannot be ignored. The longer the period for which foster care is required, the more significant that risk becomes. Ben is aged 2. He would need a foster placement for 16 years.

29.     Secondly, it is commonly acknowledged that there is a stigma attached to being a looked after child. The regime of six monthly LAC reviews continues throughout the child’s time in care. The foster carers do not have parental responsibility for the child so important decisions are taken by social workers. The longer the child’s time in care the greater the likelihood that the child will have to engage with a succession of social workers.

30.     Thirdly, whilst a foster placement may endure throughout the remainder of a child’s minority, there is no obligation on foster carers to provide either a home or care after that date. A child does not gain a ‘forever family’.

31.     For a child of Ben’s age whose parents are not able to provide him with the nurture and stability he requires, adoption is frequently proposed as the most appropriate outcome. Research evidence indicates that adoption is more likely than long-term foster care to provide a real prospect of long-term stability and security. It would also provide a ‘forever family’ in that adoption endures for life.

32.     There are negative aspects to adoption. Adoption severs the legal family ties between the child and his birth family. It also effectively severs the relationship between child and birth parents since more often than not it is the case that future contact is restricted to annual letter-box contact. In this case, although the local authority proposes to undertake a time-limited search (3 months) for an adoptive placement that is open to the possibility of ongoing inter-sibling contact, the outcome of that search is inevitably uncertain. I also note that it is often considered unwise to permit direct sibling contact between an adopted child and a sibling who is still living with or having direct contact with a birth parent, the risk being that of the identification and consequent potential for destabilisation of the adoptive placement.

33.     There are positives and negatives in both long-term foster care and adoption – advantages and disadvantages. When comparing the options side by side it is not sufficient for the court to ask itself which is the preferable option. Before the court can conclude that adoption is the appropriate outcome the court must be satisfied that nothing else but adoption will do, that no other course is possible in Ben’s welfare interests. That involves undertaking a global, holistic assessment of those welfare interests.

34.     I come to the conclusion that in this case the local authority’s care plan for adoption is proportionate and that nothing but adoption will do for this little boy. I arrive at that conclusion for the following principal reasons:

(i)         Adoption would mean that Ben would become (both in law and in fact) a member of a new family. Membership of that new family is likely to endure for the remainder of his life and not just for the remainder of his minority. It would provide a ‘forever family’ in the same way that, for most children, the birth family is a ‘forever family’. It would provide him with all the welfare benefits that come with being part of a ‘forever family’.

(ii)       Adoption is far more likely than long-term foster care to give Ben long-term security and stability during the remainder of his childhood and will therefore given him a greater opportunity of developing his full potential.

(iii)     Although adoption would have the effect of severing Ben’s relationship with his birth parents it is the case, sadly, that there is little evidence to suggest that there is any particular value to Ben in that relationship continuing.

(iv)     Although adoption may have the effect of ending direct contact between Ben and his siblings, it is clear from the recent sibling assessment that Ben’s relationships with his siblings are not strong. Whilst there may be some potential benefit in preserving those relationships, the benefits are not of any great weight when compared with the welfare advantages of permanency in a new family.

35.     I am satisfied that the appropriate outcome for Ben is that there should be a final care order on the basis that he be placed for adoption. His parents do not consent to the making of a placement order. The court is entitled to dispense with their consent if satisfied that Ben’s welfare ‘requires the consent to be dispensed with’. In this context, as Sir James Munby P made clear in Re B-S (Children), ‘requires’ has ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’. In my judgment it is self-evident that if the court has reached the conclusion that adoption is the outcome most likely to meet the child’s welfare needs throughout his life, then it is more likely than not to be the case that his welfare ‘requires’ parental consent to be dispensed with. I am satisfied that that is the position so far as Ben is concerned. I shall dispense with the consent of the birth parents.

36.     That leaves just one final issue so far as Ben is concerned. I have decided to adjourn the proceedings relating to Helen to enable there to be a connected persons assessment of ND. Until that assessment is available I am not in a position to determine whether she should be cared for by him and if not whether long-term foster care or adoption is the appropriate welfare outcome for her. That, in turn, means that I am unable to come to a decision at this stage about whether there should be ongoing direct post-adoption inter-sibling contact between Ben and his sister. Does that mean, as counsel for the parents contend, that making final decisions in Ben’s case should also be deferred until November? I have come to the conclusion that it does not.

37.     The local authority proposes that there should be a time-limited (3 month) search for an adoptive placement for Ben that will be open to ongoing direct post-adoption contact with his siblings – that is with all of his siblings and not just with Helen. That being the case, given that David is in long-term foster care and Philip living with ND it is difficult to see what difference it would make to that search if the outcome for Helen were placement with ND, long-term foster care or adoption. I cannot see, therefore, that knowing the outcome of the proceedings in respect of Helen is likely to be of assistance in finding a placement for Ben that is open to ongoing direct inter-sibling contact.

38.     I therefore come to the conclusion that it is neither necessary nor in Ben’s welfare interests for there to be any further delay in reaching final decisions in his case. I shall make a care order and a placement order and will dispense with the consent of the birth parents to the making of the latter.

Philip’s contact with his mother

39.     I noted earlier that also before me is an application by ND to vary the child arrangements order made on 20^th May by reducing the frequency of contact to a minimum of three times per year, those contacts to be joint contacts with David. ND agrees to the mother having more contact than that (up to monthly) if she wishes, but she must take the initiative in seeking that additional contact.

40.     The mother has not given evidence at this hearing. She accepts that she has only had contact with Philip once since the hearing in May. No explanation has been provided for the mother’s failure to have contact monthly. She needs to understand that if contact is to benefit the children, and contact is for their benefit in particular, consistency is extremely important.

41.     In the absence of any reasonable explanation for the mother’s lack of commitment to contact with Philip the amendments to the child arrangements order sought by ND are both reasonable and proportionate. I shall make those amendments.

Life story work

42.     I make one final point. In her most recent report, the guardian says that it is her understanding that life story work is due to be completed with David (and in due course with Helen and Ben) ‘which will enable the children to have a better understanding of their backgrounds and therefore their relationships with each other which may alleviate some of their difficulties.’ In this case that work is of critical importance. These children have complex background histories. High quality and timely life story work is necessary in order to help them understand and come to terms with their life journey thus far.