England and Wales Family Court Decisions (other Judges)

 

                                                                                                                  Case No: UJ13C90005  

 

IN THE FAMILY COURT                                                                              The Law Courts

AT NEWCASTLE UPON TYNE                                                                              Quayside

                                                                                                                    Newcastle-upon-Tyne

                                                                                                                                       NE1 3LA

 

IN THE MATTER OF THE CHILDREN ACT 1989 &

THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF:  H (A CHILD)

 

Friday, 27^th June 2014

 

Before:

 

HER HONOUR JUDGE HUDSON

 

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Re: E (A Child)

 

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Counsel for the Local Authority: MS CARLY HENLEY

Counsel for the Mother: MS ELIZABETH CALLAGHAN

Counsel for the Father: MS PAULINE MOULDER

Counsel for the Child: MR NICHOLAS STONOR

 

Hearing dates: 19 - 23 May 2014 and 16 - 20 June 2014

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JUDGMENT

 

 

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JUDGMENT

 

THE JUDGE: 

Introduction

1.                  I give this judgment at the conclusion of the welfare hearing in care proceedings concerning E, now aged 4 years and 9 months.  She is the only child of the relationship between M, aged 35, and F, aged 39.

2.                  The care proceedings in respect of E were issued by the Local Authority, South Tyneside Council, on 25^th November 2013.  On 23^rd April 2014 I handed down a written judgment at the conclusion of a fact-finding hearing to determine the past and then present relationship between E’s parents.  The judgment I handed down on 23^rd April 2014 was lengthy, running to 50 pages and 236 paragraphs.  I set out the background in brief in the first six paragraphs of the judgment as follows:

(1)  I give this judgment at the conclusion of a fact-finding hearing in care proceedings concerning E.  E is now 4½ years of age, born on 30^th September 2009.  These care proceedings were issued by South Tyneside Council on 25^th November 2013.  E’s mother and her father are respectively the first and second respondents.  E is represented through her children’s guardian, Vanessa Bell.  E lived in the care of one or both of her parents before the proceedings were issued.  From 28^th September 2012 she had lived with her mother. 

(2)  In April 2013 F was joined as an intervener in care proceedings brought by the Local Authority concerning another young child of a similar age to E, AM, in the light of serious findings sought against F in those proceedings in respect of his involvement in AM’s life. 

(3)  On 7^th November 2013 I handed down a very lengthy judgment following a four-week finding of fact hearing in the proceedings concerning AM.  That judgment has been disclosed into these proceedings and is found in the case papers at G224 to 317.  I made extremely serious findings of physical and emotional abuse of AM by F.  In my concluding remarks in relation to F at paragraph 400 I said that ‘there are obvious and significant child protection concerns in relation to his contact with any children.’ 

(4)  On 8^th January 2014, F pleaded guilty to a charge of cruelty in relation to AM based on limited admissions in an agreed basis of plea.  On 21^st February 2014 he was sentenced to three years’ imprisonment.  Having been on bail throughout the criminal proceedings, he will be released in August 2015 subject to a successful appeal against the sentence imposed or any earlier release provision. 

(5)  The Local Authority issued proceedings in respect of E on 25^th November 2013 after it became aware that M was living with E in South Tyneside and that the relationship between M and F, which was thought to have ended, had in fact resumed and they had been in contact during the course of 2013.  At the outset of the care proceedings the Local Authority sought an interim care order with a care plan of E’s removal to foster care.  E has been subject to interim care orders since 27^th November 2013 initially on the basis of her placement at home.  Following a contested interim care hearing on 9^th December 2013, I did not approve E’s removal from her mother’s care.  I gave judgment setting out my reasons for this on 13^th December 2013.  A further contested interim care hearing took place on 27^th and 28^th January 2014 in the light of further information about the contact and relationship between M and F. 

(6)  On 28^th January 2014 I approved the Local Authority’s plan for E’s placement in foster care, where she has remained since.  The judgment I gave on 25^th January 2014 has been transcribed and is at A278 to 287.  M seeks E’s return to her sole care.  Up to the start of this hearing, F’s position has been to support her as E’s permanent carer.  Whether that remains his position is unclear.  In December 2013 M informed the Local Authority and children’s guardian that she is pregnant.  In January 2014 it was revealed that F is the father of the unborn baby.

3.                  As I recorded in paragraph 7 of my judgment dated 23^rd April 2014, a central issue in these proceedings has been the relationship between M and F, the truth or otherwise of the many and serious allegations they have each made against the other over time and the circumstances of the repeated separations and reconciliations between them.  I considered it necessary for the determination of the welfare issues relating to E to investigate the past and present relationship between the parents.  In paragraph 19 I set out my reasons for dealing with the case as a split, rather than a composite, hearing, albeit with the welfare hearing timetabled only five weeks after the fact-finding hearing, and then within the 26-week track for the case.

4.                  At paragraph 12 of my judgment of 23^rd April 2014 I recorded that F admitted he had lied in the proceedings concerning AM.  Beyond his admitted lies, I found his evidence in the proceedings concerning AM was ‘generally self-serving and was in many important respects unreliable and untrue’.  At paragraph 7 of my judgment of 23^rd April 2014 I recorded that M and F ‘both accept that they have lied to professionals in the court [about their relationship] but each now asserts that they are telling the truth’. 

5.                  At paragraph 221 of that judgment I went on to say this:

It is clear from my judgment that I have not found much of the evidence I heard reliable, which has limited the extent to which I have been able to make findings in relation to the specific incidents alleged.  The fact the findings in relation to these incidents are relatively anodyne should not be taken as a lack of seriousness in the individual episodes, rather a reflection on the quality of the evidence and my inability to make more reliable or specific findings. 

6.                  The findings, insofar as I found myself in a position to make findings, have been incorporated into a composite schedule which also includes the principal findings of relevance from the proceedings concerning the child AM, and concessions made by M and F in these proceedings

7.                  This judgment must be read in the context of the following documents:

(i)  The full judgment at the conclusion of the fact-finding hearing in respect of the child AM at G224.  That judgment was given at the conclusion of a four-week hearing and runs to 94 pages and 405 paragraphs.

(ii)  The judgment given on 28^th January 2014 following the contested interim care hearing when I approved the care plan of E’s placement in foster care.  My extempore judgment from that date was transcribed and at A278 to 288.

(iii)  The judgment I gave on 23^rd April 2014 at B109 to 158. 

(iv)  The composite schedule of findings at A313 to 330.

8.                  The case management directions I gave in these proceedings included the instruction of Paul Jones, consultant psychologist, to assess both parents.  I concluded that the instruction was necessary to enable the proper determination of the issues concerning E.  Paul Jones brought with him the advantage of his involvement in the proceedings concerning AM, in which he assessed relevant family members (but not F), and he was therefore already aware of the findings I had made in those proceedings.

9.                  Alternative carers were proposed by M and F.  In the case of M, a number of alternative carers were proposed.  Ultimately, a screening assessment of only one was completed - her sister, LD, who lives with her partner, WD, in France.  Screening assessments were undertaken of the paternal grandparents (PGP) and CY, the alternative carers proposed by F.  All of these screening assessments were negative.

10.              At the hearing on 23^rd April 2014, PGM made an application for party status.  I refused that application in circumstances in which there was no issue between F and his parents and I considered their case could quite properly be put by him as part of his case.  That duly happened.

11.              The welfare hearing was listed on 19^th May 2014 for five days to allow the proceedings to conclude within its 26-week track.  The Local Authority’s care plan was for E’s placement for adoption.  The Local Authority had issued a placement application for determination at the conclusion of the care proceedings, if appropriate. 

12.              M opposed the Local Authority’s application, seeking E’s placement in her care.  In default she proposed her sister, LD, as a permanent carer for E.  F also opposed the Local Authority’s application and proposed E’s placement with his parents.  He no longer supported E’s placement with her mother, favouring adoption over E’s return to M’s care.  The final analysis of the children’s guardian supported the Local Authority plan, with a caveat that her recommendation was subject to the oral evidence relating to LD and after hearing her evidence. 

13.              I had approved the disclosure of relevant documents to the PGP and LD as case management directions to ensure they had the information required for them to be properly and fairly assessed.  In the case of the PGP, the documentation was redacted to omit material of particular sensitivity relating to M’s background.  I also acceded to a request made by F in relation to his parents and by M in respect of her sister LD for them to sit through the hearing, save that the PGP were required to leave when oral evidence related to the material which had not been disclosed.

14.              LD arrived in the UK on Tuesday, 20^th May 2014 from her home in France.  The children’s guardian had not met her before this and took the opportunity of speaking to her during the lunch adjournment that day.  I was then told that the children’s guardian was inviting the Local Authority to revisit its assessment of her.  I was asked to adjourn the proceedings overnight to allow that further assessment to be undertaken.  The following day I was told that the assessment was negative.  I was able to continue hearing evidence from one of the two social workers co-working the case, while the other, who had led the further assessment, wrote up the report.  Having seen the further report, E’s guardian indicated that she was still not satisfied that there had been sufficient consideration of LD’s position, including her partner and a closer focus on her circumstances in France. 

15.              By that stage it was evident that it was not possible to complete the case in the time which was then allocated.  I was very mindful of the Local Authority’s care plan – adoption – is draconian in any case and of particular concern knowing what I do of E and her circumstances.  I therefore concluded that the appropriate step was to adjourn the proceedings at that stage to allow the further assessment work to be undertaken and for the hearing to resume three weeks later on 16^th June 2014.  I extended the track accordingly.  I am grateful to the advocates and the other professionals who made themselves available for the adjourned hearing at no small inconvenience.

16.              During the course of the welfare hearing I heard evidence from Vicky Gullon and Jenny Rowan (the social workers with joint social work responsibility for E), Joan Archer (a social worker from the fostering team, who undertook the assessment of LD and WD together with her co-worker, Carol Reed).  I heard evidence from M and from LD.  F gave evidence, as did his parents, PGM and PGF.  I heard evidence from the children’s guardian.  LD’s understanding of English is limited.  She has required an interpreter during the hearing and for the assessment sessions which have been undertaken with her and her partner.

17.              I also heard evidence from Julie Robinson, who has been involved with M through the Options Programme since November 2013.  Until shortly before the final hearing it was anticipated that Julie Robinson would give evidence on M’s behalf.  I was told at the hearing that she was no longer supporting M as a result of recent developments.  In circumstances in which there was no consensus about this, I concluded that I should hear oral evidence from Julie Robinson, as these issues were of significance in the proceedings.  I agreed I would call her to allow each party to cross-examine her, which they duly did. 

18.              The evidence in the proceedings was concluded on 19^th June 2014.  I heard oral submissions on 20^th June 2014.  I give judgment today, 27^th June 2014, having taken time to reflect on the evidence and submissions, with today being the first date convenient to give judgment when the parties’ advocates could attend.

19.              In the course of my judgment where I make reference to material which was redacted in the disclosure to the PGP, I shall do so in general terms and by reference to documentation where detail is required.

20.              There are factual disputes in the evidence that I read and heard during this hearing which are relevant to the welfare determination in respect of E.  It is, of course, for the person making an allegation to prove it and I determine all factual disputes on the simple balance of probabilities.  In addition to the admitted lies told by M and F previously, I found that they have both lied in aspects of the evidence I heard from them at the fact-finding hearing.  Once again, I caution myself against an assumption that a lie about one aspect of the case renders other evidence from that person unreliable or untrue.  I have taken account of the fact that lies may be told for many different reasons and not necessarily to hide a person’s guilt or responsibility for any misdemeanour. 

21.              I heard evidence from M and F when the hearing resumed in June 2014.  M was evidently distressed on many occasions during the hearing, both when she gave evidence and otherwise.  Her distress, which I accept was genuine, was often associated with the parts of the evidence which contemplated E’s future away from her care. 

22.              F’s presentation was markedly different.  He too was distressed at times during the hearing.  On repeated occasions during M’s evidence, however, I found it necessary to reprimand him from either smirking or audibly laughing.  His response was to say it was his genuine reaction to hearing her lies.  F became notably agitated when either M or others were asked about situations which, either expressly or impliedly, related to her being involved with other men.  When F gave evidence, his responses were generally dramatic and extreme, in negative and vitriolic terms relating to M and her family, and positive and effusive terms relating to his own family and their relationships with E.  Much of his evidence could have been considered to be hyperbole, other than it was evidently intended to be taken literally. 

23.              I was struck that both M and F in their evidence initially acknowledged responsibility for E’s situation and expressed their feelings of guilt, but when this was explored with each of them they continued to blame the other.  This reflected their responses to the children’s guardian recorded in her report at paragraph 46, E125. 

24.              I will address what I consider to be the important and relevant parts of the evidence for the purposes of my welfare analysis of E in due course.  These must, of course, be seen in the context of the earlier judgments and the composite schedule of findings in their entirety.  

E

25.              These proceedings will determine E’s future.  She is clearly a very much loved little girl, by each of her parents and their respective families.  She lived within her birth family until January 2014, aged 4 years 4 months.  Despite their evident love for E, her parents did not protect her from harm, as set out in my judgment dated 23^rd April 2014 and the composite schedule of findings (including concessions and findings made).  This harm included a range of aspects of her care: E was exposed to the dysfunctional and volatile relationship between her parents, including their repeated separation and reconciliation; E moved between the care of her parents as a result of this and as a result of the allegations and cross-allegations made by them against each other concerning their suitability to care for her; E was exposed to occasions when her mother drank alcohol excessively and was under the influence of alcohol, and when she had smoked cannabis; E was present on occasions when F behaved in a physically and emotionally abusive manner to AM; F took a series of video recordings of E which he admits were emotionally abusive. 

26.              E was in M’s care between September 2012 and January 2014, when she was then placed in foster care.  In 2013 M initiated contact with F, following which E had unauthorised contact with him on a number of occasions.  At paragraph 202 in my judgment of 23^rd April 2014 (paragraph 14 of my findings in the composite schedule) I made the following finding in relation to this:

I find that M allowed F to have frequent unauthorised contact with E from May 2013.  M and F were both aware that this contact was in breach of a court order.  They misled the Local Authority and the court by failing to reveal that this contact was taking place.  Neither M nor F has given a full or honest account of the contact which took place.  PGM and CY have not given full or reliable accounts of what they knew about F’s contact with E.

27.              In their oral evidence in this hearing, M and F each presented a markedly different picture of the extent of F’s contact with E during this time.  M’s evidence was of very limited contact on only a few occasions.  F’s account was of contact on a number of occasions each week over a period of months.  I do not consider the evidence I heard from either of them in relation to this to be reliable.  I do not make any alteration to the finding I made in paragraph 202 set out above.

28.              During the course of 2013 E suffered from alopecia, losing almost all - if not all - her hair.  No specific cause has been found for it.  Happily, her hair is now growing back well. 

29.              Following the issue of proceedings and at each of the two contested interim care hearings, the Local Authority and the children’s guardian have acknowledged E’s positive and strong relationship with her mother and the emotional harm she would experience with a move into foster care.  I was, of course, alive to this and it was an important factor I considered in the balance on each occasion when I determined the interim arrangements for E.  I do not doubt how distressed M was at my decision to approve the care plan of placement in foster care on 28^th January 2014.  It is to M’s very considerable credit that she managed E’s transition to foster care in the best possible manner.  She prepared E for the move on the basis that it was ‘a big adventure’ for her.  She eased the transition by ensuring that E had her favourite items with her, including personal items (such as her toothbrush, blanket, favourite book, cup and bowl, as well as her clothing).  M has worked positively with the foster carer and has been consistently supportive of the foster carer’s care of E.  M and the foster carer make constructive use of a diary which passes between them.  M supported E having a holiday at Haggerston Castle with the foster carer, providing money for treats and items for E’s holiday, as well as reassuring E about the proposed trip.

30.              E has settled very well in foster care, where she has now lived for some five months.  On the evidence, E clearly sees her stay in foster care as being until her ‘adventure’ comes to an end and she returns to her mother.  Every night when she goes to bed she kisses a photograph of her mother. 

31.              E loves both of her parents.  She is described as saying she loves them ‘lots, like Jelly Tots’.  Both M and F expressed their love for E in their evidence and how proud they are of her.  M provided a number of files for me to consider, including numerous photographs of E before and after her move to foster care, as well as a folder showing E’s achievements and pictures she has drawn.  Also included were pictures that M has drawn with E at contact, which E has asked her mother to keep at home until she returns.  I found this material overall to be a moving representation of the close and loving relationship between M and E.

Contact

32.              E has contact with her mother three times a week for one and a half hours on each occasion, supervised by the Local Authority.  Some concerns were expressed in the early stages at M’s inclination to lead the contact and for E to be given educational tasks to undertaken.  M has been receptive to advice from supervisors and adapted contact so as to make it more enjoyable for E.  There is lots of affection and fun in evidence.  The progress in the contact has been such that it has been moved into the community.  M is highly committed to attending her contact with E.  I heard evidence of a missed session due to a misunderstanding about the arrangements.  M was upset to have missed contact but very concerned she had let E down. 

33.              E believes her father is working away, and appears to have accepted this explanation for the cessation of her contact with him when he was imprisoned.  F has not sought to have contact with E since his imprisonment in February 2014 and has not asked for direct contact for such time as he remains in custody. 

34.              E has also had monthly contact with PGM and PGF, supervised by the Local Authority.  On one such occasion, 15^th April 2014, the paternal grandparents attended contact with R, now aged 13.  R had not seen E for some time but had previously attended contact with his grandparents, which had been arranged by Gateshead Social Services when they were involved.  No prior arrangement had been made for R to attend, as a result of which the supervisor contacted the social work team and was told that R could not attend contact that day.  When the paternal grandparents were told, PGF became irate.  He does not dispute this, or that, as recorded, he said that “women were making all the decisions”, that “the country was overrun by women”, that he referred to one of the social workers as “a little tart”, and said he would “get a gun and shoot the lot of [them]”.  He also accepts he asked for the names of those present to include in a book.  PGM and R were both described as being upset and tried to calm and placate PGF.  R was eventually taken out to the car. 

35.              In evidence, PGF agreed he said these things.  He explained the circumstances in which he did so.  He said his comments about women were not intended to be derogatory.  In particular, he said the use of the term ‘tart’ should be seen as an endearment from the word ‘sweetheart’.  PGM also volunteered this as an explanation for his use of this term.  He said his reference to getting a gun and shooting them was “just one of my sayings”.  He confirmed that the book he was referring to was the one that PGM had described in previous hearings that the family were intending to write about the injustice of the treatment of their family by the authorities. 

36.              In relation to this, PGF said, as he did repeatedly in evidence about his role in the family, “I am just Santa’s little helper”, it appeared indicating deference to his wife.  PGF agreed his behaviour on this occasion was inappropriate.  I was not, however, persuaded by his evidence of that of PGM that his use of the term ‘tart’ should be seen as an endearment.  Although the word may indeed have its origins in earlier use as a term of endearment and is sometimes said to be a shortening of ‘sweetheart’, its general usage is now far from complimentary and should, in my judgment, be seen in the context of PGF’s other words and behaviour at the time.  I concluded, and I find, that his behaviour and language was aggressive and offensive towards the social care professionals in the presence of PGM but, more importantly, R, who was very obviously upset by the episode.

M’s circumstances

37.              At the time the proceedings were issued, she and E were living at what had been a protected address.  As a result of the resumption of contact with F at M’s instigation in May 2013 and the relationship they had thereafter, that address was no longer protected from the very person in respect of whom protection was necessary.  In April 2014 and during the fact-finding hearing, M moved to another protected address. During the parenting assessment sessions she informed the Local Authority she had been assisted by a male friend with decorating but would not give details of the person.  It is now known that it was RL.  I will deal with this further in due course.

38.              In December 2013 the fact of M’s current pregnancy became known.  My judgment dated 28^th January 2014 at paragraphs 15 to 21 sets out the circumstances in which professionals and the court were misled about the circumstances of the pregnancy, initially asserting that F was not the father and must not be told of the pregnancy, the ‘elaborate charade’ played out at court on 16^th January 2014 by both M and F in furtherance of this, followed by the revelation in January 2014 that F was the father of the unborn baby.  In my judgment of 23^rd April 2014 I found that M only disclosed the paternity as a result of F’s threat to ‘spill the beans’. 

39.              The hearing in April 2014 proceeded on the basis from the evidence of both M and F that the unborn baby is F’s.  There was no suggestion at that hearing that there was any other putative father.  In these circumstances, I was surprised to hear M’s evidence in cross-examination on behalf of F during this hearing, when she said that he may not be the father and that there is another putative father.  Now, in June 2014, M is very obviously more advanced in her pregnancy.  The unborn baby is due in August 2014.  M said she has not enjoyed her pregnancy because of E’s situation away from home in foster care, and the uncertainty about her baby’s future.

40.              On 31^st March 2014 I approved a direction for hair strand testing in respect of M for cannabis.  It was hoped that the results would be available by the hearing in April 2014.  In the event they were not.  At the hearing in April 2014, M’s oral evidence was that her recent cannabis use was limited to a single occasion on 28^th January 2014 when E was removed from her to foster care.  M was cross-examined specifically about this by Mr Stonor on behalf of the guardian.  She said that before then she had previously had a joint before she discovered her pregnancy in November 2013 and had had none since January 2014.  This evidence was also reflected in M’s account to Paul Jones in his interviews with her on 14^th and 15^th April 2014.  Although the date is incorrectly given as 16^th January 2014 (at E39, paragraph 6.1.55), Paul Jones confirmed that M specifically related to her isolated use of cannabis as being the day that E was removed from her care. 

41.              That also accorded with the instructions that M gave to Ms Callaghan, who represents her, who cross-examined Vicky Gullon on 19^th May 2014 on that basis, and the social worker conceded that there was no evidence of cannabis use since then.  It was put forward on M’s behalf that this was an important change from her past behaviour.  The social worker agreed on the information available, while acknowledging that the hair strand test results were not then available. 

42.              The hair strand test results were then produced before the adjourned hearing resumed on 16^th June 2014, when M gave her evidence.  The hair strand testing was positive for cannabis use in January to April 2014 inclusive.  In her oral evidence M denied she had used cannabis in April 2014, but agreed she had continued to use it in February and March 2014.  In cross-examination she initially denied her earlier denial of this and said she had always said she had used it.  In relation to her account to Paul Jones, M denied that she said her use was limited to the single occasion in January 2014.  Finally, when cross-examined on behalf of the guardian about these earlier accounts, M said it was not what she had meant to say.  She maintained throughout her evidence that she did not smoke cannabis in April 2014 and disputed the way her hair sample was taken as insufficiently close to her scalp. 

43.              On the evidence before me - the hair strand testing and M’s own evidence at this hearing – M gave false and misleading accounts to the court in April 2014, to Paul Jones in April 2014, and in the instructions she gave to her legal team at the hearing in May 2014, which should have concluded the proceedings.  M continued to use cannabis on her own admission in February and March 2014.  I am not satisfied that I can rely on her assertions that her cannabis use ceased in March 2014 in the light of the evidence of the hair strand testing and her lies previously, in particular relating to her cannabis use and her minimisation of her alcohol misuse.  On the balance of probabilities I find that M has continued to use cannabis up to and including April 2014 and has lied and misled professionals and the court in her assertions to the contrary.

RL

44.              It is now accepted by M that the man who helped her decorate her new property at her second protected address is RL.  She also said he was a possible birthing partner for her if her friend Natalie was not available.  Although M’s oral evidence about RL’s possible role as a birthing partner was inconsistent - whether he would simply drive her to the hospital or be a birthing partner - she did at times accept that she had both said he may be, and that he may in fact be, her birthing partner. 

45.              At the time M told the social worker about the assistance she had received with the decorating, she refused to disclose the man’s identity.  This information was passed on by the social worker to Julie Robinson at Options, who discussed it with M.  M denied she was having a relationship with a man.  She said he had been helping her decorate and had stayed overnight on occasions as he lived in Blaydon.  Julie Robinson said she warned M that the man should be checked by the Local Authority, in response to which M queried why that was relevant, even if she was in a relationship.  M told Julie Robinson the man was a friend of the paternal family.  Julie Robinson said that M was angry during the meeting that the social workers were implying she was having an intimate relationship.  After M left the meeting with Julie Robinson, she telephoned her and said she would contact Social Services with the man’s details.  By the time of the hearing a week or so later, that information had not been provided.  It was at the hearing in May 2014 that M named the man as RL. 

46.              RL is a friend (or former friend) of F, who has featured in the police disclosure and the earlier case papers.  Between the case being adjourned on 20^th May 2014 and resuming on 16^th June 2014, a number of documents relating to RL were produced: the statements made by him to the police on 20^th November 2012 and two handwritten notes, all of which were critical of M and supportive of F, with particular reference to her role in E’s life; an email from PGM to F in prison (at emailprisoner.com) on 24^th February 2014, which states: ‘RL has been helping and he sends his love’; and an email from JH, F’s brother, sent to F on 11^th March 2014 in prison, in which he says:

I also spoke to RL.  He would like to come and visit you at some point, but you know what he’s like.

47.              A statement was produced by Vicky Gullon, social worker, which recorded a telephone conversation with RL on 27^th May 2014 in which he said that he stayed at M’s house once when he was decorating.  He said he stayed on the sofa.  He said M had asked him to help with the decorating as it was his trade, and he struggled to say no.  He said he had drunk a few cans when he was decorating and that M had maybe had a shandy. 

48.              In her oral evidence M said she had not previously seen the negative statements by RL and was unaware of them.  She said he was no longer a friend of F’s family and was sceptical about their assertion that he had helped move F’s things from their former matrimonial home after he was sent to prison.  M said that RL had stayed over once or twice but had come to her home on numerous occasions to decorate.  When asked whether it was nearer to five or 15, she said it was more like 15 occasions. 

49.              F’s evidence about RL could not have been more damning.  F described him as a conman and a cheat who sleeps with his friends’ partners.  He said RL has a drink problem, who is banned from pubs in his locality.  F described RL as violent, including a description of an altercation with a female in a pub when he thrust a glass in her face.  He said that RL was violent to his ex-partner and that Social Services had been involved with him following allegations of physical abuse by a child.  F described RL as “a nightmare” and “unsavoury”.  When referring to M and RL he described them as “money-grabbing leeches”.  F described the decorating that RL was said to have done as “an interesting euphemism”.  He said he believed that RL and M were having a sexual relationship in 2011 and in January 2014, agreeing that text messages to M in January 2014 referred to that. 

50.              In the light of these vigorously expressed views about RL, I found it difficult to reconcile the following: that F had intended to call RL as a witness previously; that the H family continued to have contact with RL and have relied on him to help with moving F’s property; and F’s oral evidence that, but for information he had learned about RL’s recent contact with M at this hearing, he would otherwise have agreed to him visiting him in prison and that he had not otherwise fallen out with him until now.

51.              I did not find M’s evidence to be credible or reliable in relation to this aspect of the case.  On the evidence, I find that M disclosed her protected address to RL, despite her knowledge that he had a long-standing association with F’s family.  In so doing, she compromised the security of her protected address for the second time. 

The Relationship between M and F

52.              It is convenient at this point to refer to the evidence from M and F about their current feelings for each other.  At the hearing in April 2014 M said it had taken her time to stop loving F.  He in turn said he still loved M.  During the course of the parenting assessment, M told the social worker that she hates F.  She has now issued divorce proceedings.  F’s evidence at this hearing about his feelings for M was markedly different to those he expressed at the hearing in April 2014.  His evidence about M was vitriolic in every respect.  He said he only lied in previous proceedings at her instruction.  He said that she now repulses him.  He explained his changed feelings as a result of the six weeks he has had in prison since the hearing in April 2014 to reflect.  He threatened to make further disclosures about her, saying, “The story isn’t over.  This hasn’t ended.  I’ve got lots of stories to tell of M - I just haven't been asked the right questions.”  He was keen to refer to M’s sexual infidelities and other relationships during his own evidence.  He was very obviously exercised and agitated, however, when evidence was given about her contact with other men during the evidence of others.  I was far from satisfied that his insistence that his feelings are gone reflects the true position.

53.              The relationship between M and F has a long and complex history, as recorded in my judgment of 23^rd April 2014.  Each has made extremely serious allegations against the other when separated, only to reconcile.  Miss Callaghan said that M has not previously given evidence against F, nor has she previously issued divorce proceedings.  That is true in both respects.  I nonetheless found no evidence to justify any alteration of the finding I made following the fact finding hearing (at paragraph 235 of my judgment of 23^rd April 2014 and paragraph 19 of the composite schedule of findings), that ‘M and F have misled and lied to the Local Authority and the court about their relationship and F’s contact with E during 2013.  Their assertions that their relationship has ended and will not resume cannot be relied upon.’

M’s Work with Options

54.              M has been involved with Options (an organisation which provides confidential advice to women in relation to issues of domestic abuse) since November 2013.  She had sought a referral previously but was not eligible as she was not living within the relevant catchment area.  M has engaged very positively with courses (the Freedom Programme and You and Me, Mum) as well as one-to-one sessions.  Until early May 2014 Julie Robinson was supportive of E’s return to M and was expected to give evidence for her. 

55.              Factors which precipitated Julie Robinson’s changed position were twofold.  First, the information about RL and M’s reaction to it, particularly her questioning the relevance of any relationship if she had one.  Secondly, a text message which was disclosed by M.  That text message was produced during the course of the hearing.  It appears to come from a man named John and referred to M as using people.  Three texts were produced.  Paul Jones described them as bitter, critical and hurt. 

56.              It was argued variously that these texts implied some relationship between M and the male or as providing evidence of her recognition of the abusive nature of the texts by disclosing them in the course of her work with Options.  M agreed she responded to the texts by ringing the man in question.  Julie Robinson’s evidence was that M told her the text was prompted by the man John seeing RL’s car outside her property.  M denied that she said this, and said that he was unhappy that she had not asked him to help her with her move.  I found the evidence about this to be too confused to provide any reliable basis for any conclusions or findings to be made. 

57.              It is to M’s credit that she has returned to Options since the hearing adjourned in May 2014, despite the circumstances in which Julie Robinson had by then given evidence and had expressed her position no longer supportive of E’s return to her mother’s care.  It is to M’s credit that she carried on with the work that was underway to improve her own circumstances and she would argue, therefore, those for E. 

The Assessments Undertaken in the Proceedings

58.              I will address these as they have been undertaken, also making reference where I consider it appropriate to the other evidence in the case. 

The Screening Assessment of the PGP

59.              This was undertaken in December 2013, although the assessment itself is undated.  The assessment report is at C45.  PGF did not attend the assessment sessions.  At this hearing and at previous hearings since completion of the assessment the PGP have asserted that they did not realise that the social work visits in question were assessment sessions.  They assert that, if they had, PGF would have attended.  PGF said in his evidence that he went out in the car when the social worker visited.  I do not accept the PGP’s evidence about this, in circumstances in which they were clearly asking to be assessed and the meetings were arranged to undertake that assessment.  Notable, at PGM’s request one such session in December 2013 was rearranged at court when I was dealing with the first interim care application, as PGM did not feel in the right frame of mind for the assessment session after a long day at court. 

60.              There is no issue taken in the assessment about the paternal family’s love for E or their ability to care for her in practical terms.  Two strong themes emerged from the assessment, however: PGM’s view that her son, F, is not a risk to E or any other child; and PGM’s minimisation of the findings I made against F in relation to AM.  The assessment also recorded PGM’s attribution of responsibility for F’s situation to M’s behaviour.  A screening assessment undertaken of CY at around the same time reflected similar views.  In these circumstances, both assessments reached negative conclusions. 

61.              I heard oral evidence from PGM and CY at the fact finding hearing.  This is dealt with in my judgment of 23^rd April 2014 at paragraphs 216 to 219.  My judgment records their strongly held views in support of F, even to the extent that they rejected or minimised admissions made by him of abusive behaviour.  It also records their negativity towards M and what I found to be the blame they attribute to her for their family’s situation.  Their attitude was also reflected in PGF’s accusations to M during the verbal altercation between them at M and F’s property on 26^th February 2014 (at paragraph 219 of my judgment of 23^rd April 2014). 

62.              At paragraph 220 of that judgment I record in my conclusions that a feature of the relationship between M and the paternal family was that it mirrors the relationship between M and F themselves.  Once again, this was reflected in their written and oral evidence since that judgment was given.  In circumstances in which F is currently very hostile towards M, the views of the paternal grandparents were similarly negative in terms of M and her past (by way of example, justifying the description of her as a ‘French whore’, if not the circumstances in which it was said publicly). 

63.              They remain staunchly supportive of F and do not consider he poses a risk to children, most particularly E.  As PGF said, “F has given his word - that’s good enough for me.”  They do not believe there is any need for supervision of F’s contact with E, which accorded with F’s own view in his evidence.  They nonetheless said they would comply with any requirements for supervision or restriction of F’s contact with E, should that be determined as necessary by the court in the light of the court’s findings, even though they continue to reject those findings.

The Psychological Assessment

64.              Paul Jones undertook some of his assessment work before the fact finding hearing, but completed his report once my judgment and findings were to hand.  In addition to his main report dated 8^th May 2014, Paul Jones also responded in writing on 15^th May 2014 to questions put to him and following the receipt of additional medical records relating to M.  His oral evidence responded to the most recent information.  I record my thanks to Paul Jones for reporting within a tight timescale and for the assistance he provided in written and oral evidence.  I found his evidence from a psychological perspective congruent with my assessment of the parents from the other evidence I have read and heard.

65.              In respect of F, Paul Jones concluded that he has a histrionic personality disorder.  Such a personality disorder is characterised by self-dramatization, theatricality and exaggerated expression of emotions; by suggestibility, being easily influenced by others or circumstances; by shallow and labile affectivity; by continually seeking excitement and activities in which the individual is the centre of attention; by inappropriate seductiveness in appearance or behaviour; and by over-concern with physical attractiveness.  Relationships regularly come under strain as a result of self-centredness and demanding behaviour, often with issues exaggerated to suit the individual’s purpose at the time.  The emotions may appear intense but tend to change rapidly and be shallow.  Such individuals tend to be perceived by others as immature, demanding and ‘high maintenance’, with partners expected to compromise and accommodate their demands while receiving little by way of a reciprocal response.

66.              Paul Jones saw little prospect of counselling or psychotherapy being of value because of F’s poor insight and poor response to counselling offered previously.  Paul Jones continued at E79 paragraph 7.16:

Given F’s insecurities and his huge needs for attention, excitement and praise, the prognosis is not encouraging.  Unless he was to mature significantly, the likelihood is of similar patterns of behaviour being repeated.

67.              At paragraph 7.18 (E80) Paul Jones recorded F’s failure to engage openly and honestly on any consistent basis with childcare professionals and accepting advice from healthcare professionals when it suits him.  Paul Jones considered this in each case to be ‘linked to his poor insight, his over inflated views of his own abilities and his belief that normal rules and expectations do not apply to him.  I have seen little to suggest any fundamental change.’  Paul Jones recorded F’s minimal acceptance of the findings.  F disputes Paul Jones’s diagnosis of a personality disorder.

68.              In respect of M, Paul Jones described her at E85, paragraph 7.36, as:

… manifesting a compulsive personality style characterised by being organised, particular and conscientious and meticulous.  There are, however, significant concerns about her manner of coping, by dismissing and failing to process difficult matters what she feels would undermine her functioning and which impact on the management of her life in other respects, undermining her ability to learn and thereby to avoid past mistakes.

69.              Paul Jones noted M’s history of using cannabis and alcohol as a means of coping in the past.  He went on to conclude that he considered she would benefit from psychotherapy.

70.              In response to a question regarding the indicators of positive change, at E87 paragraph 7.42 he recorded these as including:

Stability of her circumstances, maintenance of her separation from her husband, abstaining from cannabis or alcohol as a means of coping and regaining the trust of health and childcare professionals through working openly and honestly, keeping appointments and adhering to agreements, etc.

In response to a later written question, Paul Jones expressed the opinion that if M engaged in therapy she could be expected to respond positively and to achieve significant change relatively quickly, within a period of three to six months.

71.              It was evident from Paul Jones’s oral evidence that he was very troubled by the further information available since he prepared his report and answered the written questions, particularly the hair strand test results and the information regarding M’s contact with RL.  Although he did not resile from his conclusions and recommendations, he said he had concerns about the implications of the further information on the outcome.  This was developed in the course of examination-in-chief and cross-examination.

72.              In relation to the results of the hair strand testing, he was clear that these results and M’s oral evidence following them - of cannabis use in February and March 2014 - was not what she had said to him.  He said this was significant on a number of different levels.  M had again misled professionals and the court, and the fact of her cannabis use was a concern as it had previously been used as a coping mechanism.  Moreover, her cannabis use was likely to have compromised her ability to recognise the emotional impact of events on E. 

73.              Paul Jones was equally troubled by the evidence relating to M’s contact with RL.  He considered that by giving her protected address to someone associated with F’s family, she had failed to think things through.  It was another example of a lack of an open working relationship with professionals. 

74.              Paul Jones said that in the light of M’s previous failure to work consistently and openly with professionals it had been vital that there was no evidence to question M, but that this evidence did so.  He agreed she was able to identify the issues which needed to be addressed.  He said this was the bare minimum, but that she then wanted to be told what she needed to do.  Paul Jones’s opinion was that the further information had increased the level of concern, it had increased the therapeutic work required from M and cast further doubt on the ability of professionals to work effectively with her.  I found Paul Jones’s oral evidence to be notably more cautious in relation to achieving meaningful change within a reasonable timescale than he had been in his written evidence.

75.              In response to receiving Paul Jones’s report, M has sought out therapeutic support.  She has pursued a reference through her GP herself, which will provide her with CBT.  She has also seen a psychotherapist which she has funded privately, and plans to undertake further sessions in addition to and complementary to the CBT.

The Local Authority’s Parenting Assessment of M

76.              The Local Authority’s parenting assessment recognises the many positive aspects of M’s parenting of E.  The assessment reaches a negative conclusion, however, based on her past failure to prioritise E’s needs before her own and the Local Authority’s assessment of the likelihood of this continuing in the future.  The Local Authority’s assessment concluded that M’s dishonesty with the Local Authority was crucial in considering the question of risk management.  This conclusion was reached before the hair strand test results were received and the information concerning RL came to light. 

The Assessment of LD

77.              The first screening assessment with LD was completed a matter of weeks before the final hearing listed on 19^th May 2014.  For reasons which are not now relevant, there had been delays in undertaking the assessment.  It was proposed that the assessment would be undertaken with LD in France, using Skype to facilitate the sessions.  In the event, only a telephone link could be established.  It was conducted over two separate telephone conversations with an interpreter.  The second call was interrupted and resumed after a break.  There was no conference call phone available for the second session and the social worker and interpreter had to have a phone between them on a high volume.  There were also some difficulties with the interpretation.  It will be clear from this, that the assessment was not undertaken in auspicious circumstances. 

78.              The assessment (at C116A) reached a negative conclusion.  The analysis and recommendations are at C119 to 120.  Following her discussion with LD at court on 20^th May 2014, the children’s guardian indicated her view that further assessment should be undertaken.  The Local Authority agreed to undertake a further assessment session that day.  The assessment report produced on 21^st May 2014 (at C186) once again reached a negative conclusion with the analysis set out at C190 to 201.

79.              Once again, the children’s guardian was not satisfied that placement with LD and her partner had been considered sufficiently.  She recommended further and fuller assessment, taking account of their circumstances in France.  As this could be done within a short time and the case relisted within four weeks, I concluded that E’s best interests were served by this short delay.

80.              Arrangements for undertaking the assessment in France proved more complex than originally anticipated.  In the event, the assessment was undertaken by two English social workers from South Tyneside Fostering Team, who travelled to France with the consent of the French authorities.  They were provided with an agreed list of relevant documents.  Translated documentation was available to LD and WD in advance.  The assessment work was undertaken over two days with the use of an interpreter.  The social workers met with LD on both days.  WD was only available for the first day. 

81.              The assessment report (at C222 to 252) was completed on 17^th June 2014 and once again reached a negative conclusion.  On 19^th June 2014 I heard evidence from Joan Archer, who undertook the assessment with Carol Reed, and then heard evidence from LD.  Joan Archer said this was an unusual assessment for them to undertake.  Such an assessment of a kinship carer would usually be undertaken over 12 weeks with a closer focus on areas of concern and interviews with other family members and referees.  I have had the limitations of the three assessments very clearly in mind when considering the sufficiency of them and the conclusions reached by the Local Authority. 

82.              LD is M’s younger half-sister, sharing the same mother.  LD is now 27, eight years younger than M.  LD has a full sibling, a younger brother, ND, now aged 23.  She lives with her partner, WD, who she has known for some eight years.  They have had a relationship for around three-and-a-half years and have lived together for two years. 

83.              My judgment of 23^rd April 2014, paragraph 38, makes reference to M’s account of her own childhood.  She gave Paul Jones further details in relation to this in the course of his assessment.  The information is included in his report at E34 to 35, paragraphs 6.1.33 to 6.1.39.  LD gave information about her own childhood, recorded in the assessment at C229 to 230, and about M’s experiences at C230 to 231.  These accounts, reinforced by LD’s oral evidence, add credence to the accounts M has given about this over time.  It was clear from WD’s response when the issues were discussed - and this was confirmed by LD - that he had been unaware of much of this information.  It was notable when LD gave oral evidence about this aspect of the case that she and M were both visibly and it seems still deeply affected and were both clearly very distressed about these events. 

84.              The summary and recommendations of the assessment are set out at C239 to 241.  For reasons given earlier in my judgment, I do not set them out in any greater detail in this judgment.  Joan Archer’s evidence was that the conclusions reached were very clear.  Although she agreed that further work could and usually would have been undertaken, she was clear that further investigation would not have changed the conclusions and final recommendation.

85.              The principal area of concern related to the sources of support identified by LD and WD and the appropriateness or otherwise of these in the context of the accepted background and earlier experiences of M and LD.  I found LD’s evidence somewhat inconsistent in this regard as to whether any risk was posed to E.  Her oral evidence was that she would not need to rely on other carers to any great extent, but it was clear that her own experiences led her to the conclusion that her proposed care and support arrangements were still appropriate for E.  It was notable that M sat with her head in her hands as her sister gave this evidence.  It conflicts fundamentally with her own views of those who should and should not be involved with her daughter’s care or have contact with E.  LD said she was aware of this, but has sought to reassure her sister that the situation is different now. 

86.              Despite the evidence of M and LD that they are close, there were important gaps in the information that M had or, more importantly, had not given to LD.  Most significantly, M did not tell LD about the allegations against F in respect of AM until December 2013.  LD said she asked her sister why she had not told her before and M told her she didn’t know.  She also said M had not told her about the full circumstances of the separations and reconciliations in the relationship between her and F.  LD was clear in her evidence that she nonetheless trusts M and believes her when she says something.  LD said she would trust her sister in the future.  She said that she believed M’s evidence as she heard it during the course of this hearing, including her evidence in relation to her cannabis use.  In respect of E and the new baby, LD appeared to have a different view.  In respect of E, LD said she no longer supported her sister as a carer because of the risk she posed to E.  She said she thought M should be able to keep the baby.  It was difficult to discern her rationale for this distinction.  Ultimately, she said she believed her sister should be given another chance.

The Position of the Parties

87.              The Local Authority’s plan is for E’s placement for adoption.  The Local Authority recognises that the plan is not without its difficulties.  It initially proposed a period of work including life story work with E before pursuing placement for adoption.  During the course of the hearing the care plan was revised (in accordance with the views of the children’s guardian) to provide for work to be undertaken while a placement is pursued, and for an immediate local, regional and national search for a prospective adoptive placement.  The Local Authority proposes that advice and support is sought from the Children and Young Persons Service in the preparatory work and in support of any adoptive placement.  The adoption search would be limited to 12 months, with concurrent planning after nine months looking for a placement in long term foster care. 

88.              In his written responses to questions and in his oral evidence, Paul Jones made it clear that a placement away from the birth family should be through adoption.  He recognised that such a placement for E was not straightforward because of her established relations with her birth family.  His evidence was if the Local Authority had a placement order, it had to ‘pull out all the stops’ in terms of seeking a placement for her. 

89.              M seeks E’s return to her care.  She says she will undertake the therapy recommended by Paul Jones and, of course, has already made steps to embark on this.  She was clear in her evidence that she will not resume her relationship with F.  She spoke of her hatred for him in the parenting assessment.  She said she would adhere to any contact provided by the court, but does not believe that F should have contact with E.  She does not support contact between E and the paternal grandparents because of their attitude to her. 

90.              M’s secondary position is to support E’s placement with LD.  It was clear from M’s evidence that she would envisage living as close to E as she could in these circumstances and would plan to move to France.  She said it would be in E’s best interests to have very regular contact with her.  M contemplated weekly contact and staying contact.  She envisaged a continuing significant role in her daughter’s life.  She also envisaged E having contact with her own mother, E’s maternal grandmother.  M does not support E’s placement with the paternal grandparents in any circumstances.

91.              From the outset of the proceedings, F has acknowledged that the findings against him are such that he is precluded from any caring role and that his contact with E will be supervised.  He supports E’s placement with his parents, who he described as “amazing” and said that “as a child [he] wanted for nothing”.  He described his father as having “a great perception of women”.  He said he could not believe his father had been “hauled over the coals”. 

92.              He does not support E’s placement with M or with LD, advocating adoption in preference to a placement within the maternal family.  F was clear he would want contact with E if she is placed within the birth family.  He said he would “travel to the moon” to see her.  Although F’s case is that his contact will be supervised, when he was asked about this he repeatedly avoided the question until I intervened and pressed for a straight response, following which he said he does not believe he needs supervision.  When he was asked what supervisors may need to watch for, he said his contact would be “impeccable” and “brilliant”.

93.              F’s parents seek to care for E with the support of their family.  They believe their son is a victim of a miscarriage of justice and wrongly imprisoned.  In particular, they reject my wide-ranging findings against him.  They believe the family has been victimised by authorities.  They do not believe that F has harmed or would harm a child, particularly E. 

94.              In her report dated 19^th May 2014, the children’s guardian supported the Local Authority’s plan, subject to evidence relating to LD.  In paragraphs 50 and 51 (at E126 to 127), the guardian expressed a view that she was less optimistic regarding timescales proposed by Paul Jones for therapy and its duration in respect of M and set out her reasons for it.  Her view in relation to this strengthened in her oral evidence following the evidence she had heard in the proceedings, particularly the hair strand testing and the evidence relating to RL. 

95.              The children’s guardian gave evidence of her own background and training in psychotherapy and counselling which had informed her conclusions.  She said that M says she has used the help she has received - the six months’ support and work with Options - but the guardian’s view is that she manifestly has not.  The children’s guardian saw these issues as an opportunity for M to show that she was working openly, even with information that was detrimental to her but M had not done so.  Despite her awareness of the hair strand testing and that “truth will out”, M had maintained her denial until the evidence was presented.  In cross-examination the guardian agreed that M has co-operated with Options, but said she is not confident that she has internalised the help that she received and used it to change her behaviour. 

96.              The guardian is now satisfied that the court has sufficient information about LD to reach a conclusion.  She does not doubt LD’s genuineness and her wish to care for E, but the children’s guardian considered the issues highlighted are of such significance to rule a placement out.

97.              The children’s guardian remained clear that placement within the paternal family was not an option for the reasons which she set out clearly in her report.  The guardian said that the issues in relation to placement made the decision so difficult because of the love that E and her mother clearly have for each other.  She said, however, that this love did not prevent the harm and was not a sufficient protective factor for the future.

The Legal Framework

98.              The threshold criteria are clearly established by the findings I made on 23^rd April 2014 together with the concessions made by each of the parents incorporated in the composite schedule of findings.  I therefore move to the welfare analysis. 

99.              In undertaking my welfare analysis I have had full regard to the recent case law relevant to the approach of the court in determining applications for care orders and placement orders.  The judgment of the Supreme Court in Re B (A Child) [2013] UKSC 33 is of central importance in providing guidance as to the correct approach of the court where it is asked to consider a care plan for permanent removal of a child from the birth family.  The judgment, given in June 2013, considered in detail the approach to the European Convention on Human Rights Article 8 proportionality in a public law children case.  The judgments of the Supreme Court judges stressed the significance of the decision of the court to remove a child from his or her birth family and to be placed for adoption against the wishes of the birth family.  The judgments emphasise that a care order and adoption is an extreme outcome and ‘a last resort’, in the words of Lord Neuberger.  A care order cannot be made in such circumstances unless the order is proportionate, bearing in mind the requirements of Article 8.  Lady Hale described the test for severing the relationship between parent and child as ‘very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.’  The test is one of necessity therefore. 

100.          The welfare of the child is paramount but, as Lord Neuberger said at paragraph 77, the interests of a child would self-evidently require his or her relationship with her natural parents (and I include here the birth family generally) to be maintained unless no other course was possible in the child’s interests.  He went on to say (at paragraph 104) that the interests of a child include being brought up by the natural family, ideally the natural parents, or at least one of them.

101.          The Court of Appeal gave judgment in Re G (A Child) [2013] EWCA Civ 965 the following month, in July 2013.  The judgment of McFarlane LJ stressed the need for a proper, thorough and holistic evaluation of the placement options, giving full weight to the Article 8 rights.  Such an approach involves the court balancing the pros and cons of placement options in any case.  He emphasised the need for substantive consideration of the Article 8 considerations in relation to the issue of permanent separation of a child from the birth family.  He said that ‘what is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared side by side against the competing option or options.’

102.          Where the court is considering a plan of adoption, the evaluation must take place in the context of the welfare provisions of section 1 of the Adoption and Children Act 2002, whereby the child’s welfare throughout his or her life is the court’s paramount consideration.  The welfare checklist in section 1(4) includes, of course, in section 1(4)(c), the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person.

103.          McFarlane LJ also referred to Re B and the repeated use in their Lordships’ judgments of phrases such as ‘high degree of justification’, ‘necessary’, ‘required, ‘a very extreme thing’, ‘a last resort’ and ‘nothing else will do’.  He said that in the light of this ‘it is clear that the importance of a child either living with, or maintaining a relationship with, her birth parents and natural family have not been reduced’. 

104.          In Re B-S [2013] EWCA Civ 1146 the President also referred to the striking language used by the Supreme Court in Re B as to the degree of necessity before a care plan for adoption is approved.  In paragraph 18, by reference to Strasbourg authority, he said that family ties may only be severed in very exceptional circumstances; that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family; and that is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

105.          The President approved the global and holistic approach to welfare evaluation.  He stressed the need for proper evidence from the Local Authority and children’s guardian, addressing all the realistic options with an analysis of the arguments for and against each option.  He further stressed that the assessment of the parents’ ability to care for the child must take account of the assistance and support the Local Authority and other professionals should reasonably make available to the family.

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

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

(ii) To what is the harm or likelihood attributable?

(iii) What will be the best for the child?

107.          Ryder LJ said (at paragraph 100) that the court is to undertake its evaluation to determine what is best for the child by reference to the three questions:

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

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

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

Welfare Assessment

108.          Before I turn to the placement options and my analysis of them, it is important to focus once again on E and her particular characteristics. This can be done by using the structure of the welfare checklist and, having regard to the plan of adoption, must be seen in the context of the 2002 provisions.

109.          E is now 4 years and 9 months of age.  Her wishes and feelings are well known.  She evidently loves her family: her mother, her father and her wider family.  She has a particularly close relationship with her mother.  She believes her mother is right about everything.  E kisses a photograph of M each night at bedtime.  There was a warm, spontaneous and loving relationship observed before her placement in foster care, which has been observed during the course of contact.  E has also enjoyed her contact with her father, her paternal grandparents and also her maternal aunt, LD.  E has two paternal half-brothers, S and R.  On all accounts, she has positive and reciprocated sibling relationships with them. 

110.          When I look to E’s needs, she has the usual physical and educational needs of any child of her age.  She has, however, a particular need for stability and for her emotional needs to be consistently met.  The early years of her life were characterised by inconsistent parenting, abrupt changes of caring roles and gaps in contact with her parents and significant family members and, most recently, her accommodation in foster care and the absence of her father through his imprisonment.  The harm I have found she has suffered is likely to have an impact on her over time. 

111.          When I consider the likely effect on E of ceasing to be a member of her birth family and being adopted, she is a little girl who has a very clear picture in her mind of what her future holds: her big adventure will end and she will go home to her mother.  It is reflected in what she says expressly and also in her behaviour, asking her mother to keep drawings at home for her return.  A change of circumstances other than this will have a profound effect on her.  The fact she has settled in foster care with her mother’s support and E’s belief of her return cannot be seen as a necessary indicator of her ability to settle otherwise.  E is a child of dual English and French heritage.  Her mother is to give birth within weeks to another child, who is believed to be a full sibling. 

112.          In terms of the harm that E has suffered or is likely to suffer, it is clear from the findings I made following the finding of fact hearing and the concessions which are made by her parents that she has suffered harm and there is a likelihood of future harm: E’s exposure to her parents’ volatile and dysfunctional relationship; the disrupted care arrangements that she experienced as a result; the shortcomings in her mother’s parenting from her alcohol and cannabis misuse; her father’s admitted emotionally abusive behaviour of her in the videos he took; the risk to her as a result of F’s serious physical and emotional abuse AM; and the risk to E if there is a resumption of her parents’ relationship, or a relationship by either of them with another person with similar characteristics. 

113.          When I look to the ability and willingness of the ability and willingness of the parents and others to care for E, it leads me to consider the placement options and the advantages and disadvantages in each in accordance with the 2013 authorities.  A placement of E with her mother brings with it obvious and significant advantages: it is a placement with her mother, with whom she has the closest relationship; it is a relationship which is positive in many respects; it would meet with E’s clear wishes and expectations.  A placement within E’s birth family maintains her identity and, potentially, the other significant relationships she has.  M is an intelligent woman, well demonstrated by her own actions throughout her adult life to better herself.  She has accessed support from Options in the last six months.  M was assessed by Paul Jones as a good candidate for therapy with a prospect of change within a relatively short timescale.  M has started the process of accessing therapeutic support.

114.          A placement with M carries with it, however, significant risks: of E’s further exposure to harm; a repetition of the past events and the future risks I have identified; the risk of a resumed relationship between M and F, in the light of their past relationship and the findings I have made in relation to it; the risk of a resumed relationship with F in the light of the findings I have made against him in respect of AM; the risk of another similarly dysfunctional relationship; and the risk that M’s parenting will be compromised, as it has been in the past, by her reliance on substances and her inability to prioritise E’s needs.  Even without a reconciliation between M and F, the history shows a potential for disruption between the maternal and paternal families in the light of the past and current hostilities.  Those risks have to be seen in the light of M’s significant failure to work openly with professionals involved to safeguard E’s wellbeing. 

115.          A placement with LD and WD is favoured by M if placement with her is not approved.  That brings with it the advantages of a placement within the birth family, with familiar and loved relatives.  I was shown photographs from the contact which took place between M, E and LD on the day that LD gave her evidence.  They are a series of photographs which showed obvious warmth and fun between E and her Aunt L.  LD and WD demonstrated very many positives in the course of the assessment, reflected in the report of Joan Archer and Carol Reed.  They would be able to promote E’s French heritage.  They provide the potential to maintain other important relationships with birth family. 

116.          Such a placement also carries risks with it: the risks identified in the assessment from the care and support arrangements they propose; the tensions that such an arrangement would provide in the context of M’s views about members of the family; whether a placement with LD would endure or whether, in fact, M would become E’s primary carer or become very closely involved in her care once again; LD’s lack of acceptance of any risk posed by M and her complete acceptance of M’s evidence and her trust in her; and also the potential for unauthorised contact with F, whether through M or otherwise, in the light of his intentions and personality and the question whether LD is able to withstand that.

117.          A placement with the PGP brings with it the advantage of a placement with extended family who love E dearly and who have established and warm relationships with her.  They would promote other relationships within the paternal birth family, of particular significance the relationships with S and R.  Such placement brings with it disadvantages, most significantly their steadfast belief in F’s innocence; and their rejection of any risk posed by him.  This must be seen in the light of their poor working relationships with professionals involved with E and raises a question whether they can be relied upon.  They also have an extremely negative attitude towards M and the maternal family, which is likely to have an impact, and a negative impact, on E. 

118.          An alternative placement away from the birth family must be seen as a last resort.  The advantage a placement for adoption can provide is through permanence and security throughout a child’s minority and beyond without disruptions and the harm suffered in the child’s life previously. 

119.          On the evidence of the Local Authority, Paul Jones and the children’s guardian, adoption is achievable for E with the potential for a successful placement, despite her clear attachments to her birth family.  Inevitably, such a plan brings with it disadvantages.  There is a risk that E will not invest or attach in such a placement.  It is an issue in any case, but of particular significance in this case in my judgment.  There is a risk of breakdown in any adoptive placement.  Most importantly, adoption involves the loss of E’s relationships with her birth family.

120.          I have also given some consideration to the option of long term foster care, although it is not proposed by any party as a desirable outcome for E.  It provides a placement away from the birth family, and potentially in a safe environment therefore, away from the identified risks which I found to be inherent in the placements which are available within the birth family in this case.  It also provides a potential for ongoing contact with birth family.  The disadvantages of long term foster care are well known, however, with poor outcomes and a lack of stability and security.

My Overall Analysis

121.          I have been involved with proceedings concerning E for over a year now, initially private law proceedings case-managed in conjunction with the public law proceedings concerning AM and, since November 2013, care proceedings concerning E herself.  Throughout, I have been aware of the importance of E’s family to her and particularly her mother.  The importance of this relationship to E played a central part in my approach to E’s interim arrangements and my determination over time of how her welfare needs were best met, and my assessment that, until January 2014, she should continue to live with her mother.  In January 2014, whilst recognising the importance of that relationship, I reached the conclusion, reluctantly, that E’s safety required her immediate removal from her mother’s care in the light of the evidence of the resumed relationship between M and F, their dishonestly in relation to it and the risks I found that to pose to E. 

122.          Since her placement in foster care, the importance of her family to E, and particularly the importance of her mother, has not reduced, although she has settled well.  As the children’s guardian said in her evidence, balancing the clear risk to E from continuing placement in her birth family has been made significantly more difficult by the relationships that E has with her birth family and particularly her mother.  The social work evidence, the evidence of Paul Jones and the evidence of the children’s guardian is, however, that E nonetheless has the capacity to make new attachments if work is undertaken with her and placement is pursued without delay.  I was considerably assisted by the thorough and thoughtful written evidence of the children’s guardian and her oral evidence. 

123.          I have reached a very clear conclusion in relation to a placement with the paternal grandparents.  The combination of their rejection of the findings against F, the consequent lack of acceptance of the risk to E from F and my overall analysis of the paternal family is such that I do not consider E would be protected from the risks posed by F, because the family do not believe he poses such a risk.  They have a poor track record of working positively with professionals.  In addition, their hostility to M would provide an inappropriate environment for E’s emotional needs to be met.  E cannot safely be placed in their care.

124.          In relation to a placement with M, the children’s guardian said this at page 129:

I have carefully considered this option, not least because I am aware of her E feels about her mother.  M can meet E’s physical needs and provide an appropriate and warm home for her.  I believe that M will continue to take on board advice as to how to provide E with a more balanced style of parenting. 

However, this is not the fundamental issue.  M consistently failed to prioritise the needs of her daughter and consequently placed her at risk of significant emotional and physical harm.  There has to be confidence that not only does she have the motivation to change but that she can change by means of addressing the issues identified by Paul Jones, consultant clinical psychologist.  There than has to be a balance between a realistic timescale for the therapeutic work undertaken by M and E’s timeframe and how long she can wait in placement before a decision is made for her future. 

I am not as confident as Mr Jones that M can undertake her therapy, demonstrate her ability to change and maintain that change in a timeframe that does not jeopardise E’s potential to move to an alternative family if M is not successful.  Underpinning any plan for rehabilitation has to be the belief that M is able to work honestly and openly with the Local Authority.  M has shown that she can be very, very plausible and that she can deceive experienced professionals. 

In my opinion, E does not have the time to wait for her mother to show those working with her that this time it will be different and that she is being honest and open.  I am unable to support this option for E.

125.          At 50 to 51 of her report at E126 to 127 the children’s guardian said this :

M has demonstrated in how she advanced her career despite her difficulties that she can learn and use information in a practical manner.  This is also seen in her approach to working with Options and addressing issues regarding domestic abuse.  M can learn and articulate what she has learned.  However, what is much less clear is whether M is able to internalise what she has learned and then fundamentally change her behaviour.  It is to M’s credit that she is prepared to engage in psychotherapy but in our recent discussion she was approaching such therapy as she approaches any learning experiences.  She goes to therapy, the therapist helps her see what she needs to change, and then she changes.  In my experience, psychotherapy is a much more complex and difficult process where the answers come from within the patient during the therapeutic process.  Such therapy can take a considerable time and will not necessarily provide M with what she is seeking [inaudible] whether she has sufficiently changed.  At this time M has yet to be assessed as to her suitability for psychotherapy and there is no guarantee, if she is assessed to be suitable, as to when psychotherapy may commence.  I am therefore less optimistic than Mr Jones with regard to the likely timescale of such therapy taking place and its duration. 

In addition, the completion of therapy is not the end of the process.  M will need to demonstrate that she has been able to make fundamental changes to her thinking and understanding herself.  M is an articulate woman who is able to voice what she believes is wanted by others.  This does not necessarily mean that she has fundamentally changed.  There is no guarantee that what M is saying is a true reflection of the reality.  In this case it will only be M’s actions in terms of her future relationships and her ability to remain separate from F after his release from prison that can be taken as real and believable evidence of change.

126.          The children’s guardian’s oral evidence was that the views and recommendation set out in those passages have been strengthened by the recent evidence post-dating her report.  I have found there to be evidence of continuing dishonesty in relation to hair strand testing and a lack of co-operation and acceptance of risk in the actions in relation to F.  I agree with Paul Jones that this evidence increases the risk and increases the therapeutic work required.

127.          The remaining question is whether M can now be trusted.  I am aware of M’s very great love for E.  I hoped throughout the proceedings she would provide the court with sufficient confidence that she could be relied on for the future, so motivated - as I have understood her to be - to secure E’s return to her care.  Sadly, for whatever reason, she has not done so.  I was driven to the conclusion that I could not rely on M to achieve changes required within a timescale that is compatible with E’s welfare needs and, moreover, that the court could not be assured of or rely on any apparent change in the light of the continuing evidence of dishonesty in an important and relevant area.

128.          I have considered whether any further work, monitoring or support could assure me of E’s safety if returned to her mother.  Sadly, I have concluded they cannot do so, certainly not within a timescale to meet E’s needs.

129.          In relation to LD, I have already recorded the positives.  I found her to be a warm and engaging young woman.  The risk factors identified are, however, wide-ranging and significant.  I concluded that I have sufficient information to reach a conclusion in relation to placement on the material now available.  I concluded that the negative factors rule out a placement with her.

130.          The fact that I turn, finally, to a plan of adoption does not represent a linear analysis, rather that adoption is a placement of last resort.  In every case, a plan for adoption has risks.  In this case the risks are real, as already spelled out.  I have balanced the pros and cons of this option as against the other placement options.  It has been a difficult decision to make.  I have nonetheless concluded, with very great sadness for E, that the plan of adoption is the only plan that will meet her welfare interests throughout her childhood and beyond.  There is no realistic alternative for her. 

131.          I make any decision for placement of a child for adoption with a heavy heart; that has never been more so than in E’s case.  I have nonetheless reached a clear decision and I have concluded that nothing else will do.  I agree that the plan of adoption must proceed with expedition and must be pursued without delay, looking to progress life story work and placement in tandem, with the widest possible search for an appropriate match.  I approve the Local Authority’s care plan, including the proposed arrangements for reduced contact and indirect contact after adoption.  I make a care order on this basis.

132.          I turn to the placement application.  The Local Authority invites the court to make a placement order to allow it to progress the plan for E without delay.  The application, statement of facts, Annex B report, and the children’s guardian’s report support the application.  There is no consent to the application from M and F, who share parental responsibility for E.  I can only make a placement order in such circumstances if I dispense with consent pursuant to section 52 of the 2002 Act.

133.          I have made a care order approving the care plan of adoption following my analysis of E’s welfare in accordance with section 1 of the Adoption and Children Act 2002.  I adopt the reasoning from that judgment in this application for a placement order.  My judgment stresses the need to proceed with the plan as soon as possible and for the widest possible search for prospective adopters.  That can only be achieved with the greatest legal security, which is provided by a placement order.  E’s welfare throughout her life is my paramount consideration.  I have regard to the extended welfare checklist in section 1(4) of the Act which I have already highlighted in the course of my judgment.  Article 8 rights are clearly engaged.  There is no clearer case than where the court is considering adoption. 

134.          For reasons that I set out in the body of my judgment, I have concluded that there is no alternative.  The making of a placement order provides the greatest legal security and a base from which a search for prospective adopters can be undertaken and will provide the widest possible pool.  The search must be given the best prospect of success without delay.  It is, in my judgment, vital that a placement order is made.  The Article 8 rights of E’s parents and her birth family cannot stand in the way of achieving permanence, which I have concluded requires her placement away from her birth family.

135.          In the light of the conclusion that adoption is the only alternative for E, I have concluded that, where consent is not forthcoming, I must dispense with the consent of E’s parents to the application in accordance with section 52 on the basis that E’s welfare requires it.  I therefore do so, and make a placement order.

[Judgment ends]