England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEICESTER                  CASE No: LK13CO0784

 

 

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down 3^rd September 2014)

 

 

 

 

Leicestershire County Council v T

 

 

 

 

Mr Justin Slater for the local authority

Mr Paul Tapper for the mother

Miss Nadia Mansfield for the father

Miss Alison Humphrys for the Children’s Guardian

BG, paternal grandmother, acting in person

 

 

 

 

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 child and the adult members of his family must be strictly preserved.

 

 

Judge Bellamy:

1.         Leicestershire County Council (‘the local authority’) applies to the court for a care order and a placement order in respect of T. T is aged 13 months. His parents are CS (‘the mother’) and DG (‘the father’). The parents oppose the local authority’s applications.

2.         This case came before me for final hearing in April. I handed down judgment on 2^nd May: Re T (A Child: Delay - Extension - further assessments) [2014] EWFC B51. The background history is set out fully in my earlier judgment. It is unnecessary to repeat it. This judgment should be read alongside my earlier judgment. Together they form a continuum.

Developments since the April hearing

3.         I adjourned the final hearing in April because I was not persuaded that I was in a position to complete the case justly at that stage. In arriving at that conclusion I set out four concerns. I said:

'139.    Firstly, I am concerned about the lack of investigation into T’s physical, behavioural and developmental difficulties. Even if the court makes a placement order it is difficult to see how he could in fact be placed when there is so little understanding of the causes of his difficulties and no prognosis. There is also a need to understand the risks to T’s future development arising from the fact that both of his parents have significant diagnoses concerning their mental health.’

 

To address that concern I gave the parties permission to obtain a report from a Consultant Neurodevelopmental Paediatrician, Dr Charles Essex. Dr Essex reported on 5^th June.

4.         I went on to say:

'140.    Secondly, I am concerned that in ruling out the mother insufficient credit has been given for the real and sustained progress she has made since T was born. His birth appears to have motivated her in a very positive way. Dr A’s evidence suggests not only that the mother may be able to care for T but that she may be able to do so whilst still undergoing therapy. Whilst I understand the local authority’s concerns about risk, the reality is that there has been no assessment of risk and no consideration has been given to whether [any] and if so what, services could be provided to guard against or minimise that risk.

 

To address that concern I gave the mother permission to obtain an assessment by a Consultant Clinical Psychologist, Dr Elizabeth Gillett. Dr Gillett reported on 30^th June.

5.         I then said:

'141.    Thirdly, whilst I understand the local authority’s concern at the change of heart by father and paternal grandmother, I am not persuaded that the robust approach suggested by the local authority is the right approach in the circumstances of this case. In arriving at that conclusion I have in mind, in particular, that the outcome now contended for by father and paternal grandmother is precisely the outcome which commended itself to this local authority only a few months ago.’

 

I gave the father permission to obtain an assessment by an Independent Social Worker, Mr Gary Eyles. Mr Eyles’ report is dated 4^th June.

6.         I also said that:

'142.    Fourthly, I am concerned that the local authority’s case has not been prepared in a way which is compliant with Re B-S (Children). Until the amended final care plan filed on the last day of this hearing the local authority had not even attempted the kind of analysis envisaged by Re B-S (Children).’

 

7.         I begin this further judgment by setting out the additional evidence that has now been placed before the court.

Assessment of T

8.         Dr Essex notes that there were concerns that during the first trimester of her pregnancy the mother had abused alcohol and that she had also been taking medication for her mental health problems. There were concerns that T may suffer symptoms of withdrawal from his mother’s medication. Dr Essex says that,

‘Having reviewed his hospital records I do not believe there is evidence of him suffering withdrawal symptoms, although this assumption has been repeated several times in the records.’

 

Dr Essex also excludes the possibility that T may have suffered from fetal alcohol syndrome.

9.         The assessment of T is entirely positive. Dr Essex says that,

‘T’s development is within normal limits.  T is still very young but I do not get the impression of any developmental delay or medical [organic] condition… I have not identified any conditions or health difficulties…he seems to have come through the neonatal period well.  His care needs are therefore similar to any other child of the same age.’

 

 

10.     Although Dr Essex gives T a clean bill of health, those involved in his day to day care continue to have concerns. In her final statement the allocated social worker, Lynsey Mirfield, reports that,

'3.2.      It is pleasing to note that Dr Essex has not identified anything significant in terms of T’s health. However T’s Health Visitor has undertaken his 1-year check in July 2014 and raised concerns about his developmental delay, In particular, some stiffness in his legs which seems to be impacting on his ability to walk. A referral has been made for T to have physiotherapy in the hope this will assist his development. T’s foster carer still reports that he is not yet settled in a routine and will not always sleep through the night, his behaviour varies from day to day and he continues to require a high level of care.’  

 

11.     In light of Dr Essex’s report I proceed on the basis that T does not have any special physical health needs. However, there continues to be a lack of evidence concerning the long-term implications for T’s development, and in particular his mental health, of the fact that his mother has a diagnosis of emotionally unstable personality disorder with secondary depressive features and his father has a diagnosis of Bipolar Affective Disorder. In the context of the local authority’s plan that T should be placed for adoption, that is likely to be an extremely important issue for any prospective adopter.

Dr Elizabeth Gillett

12.     Dr Gillett has undertaken a thorough and robust assessment. She was asked to ‘provide a psychological risk assessment of the mother ‘and examine her parenting ability with a view to her being a prospective long term carer for T’. It is appropriate to refer extensively to Dr Gillett’s response. She says that,

'7.1.1  The mother presents as an intelligent capable woman with a longstanding history of personality pathology relating to attachment insecurity and impulse control issues.  There is a clear indication that the mother experienced maltreatment during her childhood with reports of significant emotional and physical abuse whilst in her mother's care coupled with exposure to significant traumatic events… The mother’s coping mechanisms and resilience were inadequate given the enormity of her trauma, loss and distress alongside her very limited internal and external resources.  It seems unlikely that the traumatic losses experienced had been emotionally processed sufficiently leaving a residue of unpredictable emotional responses coupled with a hyper-vigilant anxiety and view of the world as unsafe and positive things as unreliable and temporary.  This coupled with the known long term consequences of emotional abuse during childhood left the mother with a huge propensity towards lifelong psychopathology.       

7.1.2   It seems likely that as the mother entered young adulthood her maladaptive coping strategies became embedded into disordered personality features with strong themes of attachment insecurity, self harm, and emotionally unstable responses…It seems apparent that as an adult the mother had repeated interpersonal difficulties and a series of failed and abusive intimate relationships, which she no doubt contributed to.  In turn these are likely to have reinforced her attachment insecurity and created ever more overt indicators of her internal distress with the emergence of historical dysfunctional strategies such as self harm and alcohol misuse and periods of total emotional overwhelm…

7.1.5   The arrival of T seems to have had a significant and positive impact on the mother's functioning and motivation to fully engage with professionals.  It is reported that her alcohol usage ceased on her discovery of the pregnancy, some 18 months ago and is considered by the mother and her substance misuse worker as no longer problematic.  This is broadly supported by the psychological evidence with the high risk period of relapse having passed (the first year), although it is likely to remain a life-long vulnerability.  

7.1.6   It should be remembered however that the discovery of the pregnancy was a significant challenge given the mother's self initiated withdrawal from all medications and a subsequent psychotic episode and several months of unstable and difficult behaviour.  However since July last year shortly after the birth, there have been no admissions to mental health units or reports of self harm, suicidal thoughts or erratic/aggressive behaviour with a sustained period of positive engagement with all services including the commencement of psychodynamic psychotherapy ten months ago. Whilst these professional relationships have not been without issue (e.g. confusion / misrepresentation of facts, missed appointments) given the historical context of nearly ten years of intermittent engagement with revolving door issues the improvement is remarkable and has been sustained since T's birth.  It would appear likely that T's birth has activated some latent motivation and created a 'turning point' for the mother. 

7.1.7   There is some evidence to support the birth of a child acting as a 'turning point' for adults with a range of mental health and substance misuse issues.  For some the role of parent provides an opportunity to distance themselves from their previous identity and create a new frame for their lifestyles, encouraging more pro-social and less anti-social behaviour…It appears very plausible that the mother's internal motivation to make changes owing to T's arrival created a 'treatable moment' regarding the full range of mental health and substance misuse services and the timing of the psychodynamic psychotherapy was fortuitous.  

7.1.8   In my opinion the mother continues to present with significant psychopathology although the overt and high risk manifestations of this (suicidal/self harm behaviours/alcohol consumption) have not been enacted (or observed) for the last year.  This would be consistent with a long term intensive therapeutic process, as typically they would address the high risk behaviours and symptom management in the first instance.  I have no doubt about the mother's continued requirement for the long term therapy that she is currently engaged with and endorse the appropriateness of the service provision in place.’

13.     Dr Gillett was also asked to assess the risk that T would be exposed to should he be cared for by his mother whilst she is still undergoing psychotherapy. Once again it is appropriate to refer extensively to Dr Gillett’s response. She says that,

'7.2.1  Unless the intensive therapeutic intervention is successfully engaged with and completed by the mother then the probability is low that she will reach the standards acceptable for ‘good enough’ parenting for the duration of T's minority. Any re-emergence of her underlying psychopathology and associated behavioural and emotional presentation will enhance the risk of T experiencing maltreatment, especially emotional abuse in line with her inability to prioritise his needs over her own. 

7.2.2   An outcome whereby T returns to the care of his mother, whether on a shared or primary basis, does, however appear to be a possibility although dependent on a number of factors that are dynamic, not least the continued availability of the psychotherapy currently offered; the mother's genuine ability to engage and maintain motivation within the therapeutic process as well as with other professionals; and the restoration of positive relationships with T's paternal family…

7.2.4   With regards to caring for T, psychotherapy is likely, at least at times, to impact on the mother's emotional availability to recognise and meet his emotional needs and ultimately shape the type of attachment that develops between mother and son. The mother is unlikely to be in a position to consistently prioritise the needs of T as she manages her own difficulties through the therapeutic process as her attention and efforts will, by necessity, be focused on her intra-psychic needs and associated thoughts, feelings and behaviours. 

7.2.5   Whilst this indicates that an immediate transfer of care would likely be problematic, it does not rule out the possibility of a gradual increase in caring opportunities, on the basis of a robust package of support and of course, the continued engagement in therapy and all mental health services.  This would provide the mother with a better understanding of Ts care needs and time for clarification of his developmental and/or medical needs whilst he maintains his current attachments in foster care and/or further develops them with his paternal grandmother and father.      

7.2.6   It would appear logistically possible for the mother's care opportunities to be organised around her psychotherapy sessions and other mental health appointments. It would however be important for adequate time (a few hours at least) to be allowed immediately following sessions before the mother becomes responsible for T's care…

7.2.7   There would need to be a detailed multiagency plan including contingencies coordinated by the Local Authority (following any assessments they deem necessary) but it appears feasible that a robust package of support could be created using resources such as contact supervisors and family support workers alongside family members, health visitors and other professionals.   

7.2.8   Sustainability of changes made over the last year and indeed those still emerging is a key factor in this case.  The change process almost inevitability has instances of relapse but these are an integral part of the recovery process…

7.2.10   Whilst the mother continues her treatment and maintains her current lifestyle and positive engagement with professionals there remains a real prospect of the mother taking on part, if not the primary role, in T's care.  This therapeutic process alongside Local Authority interventions and supports are likely to improve her parenting to a good enough standard, which could be achieved in parallel by a gradual building up of her attachment and responsibilities therein.  I am of the view that this should be included as an option for consideration, bearing in mind T's emerging needs and the timescales involved.’

 

14.     The mother’s progress is very positive. That she has engaged so well for the first year of therapy is a cause for guarded optimism. Dr Gillett said that it is a credit to the mother that she has made the progress she has made during that period. Something has enabled her to engage. Dr Gillett suggests that that ‘something’ is probably the birth of T.

15.     However, whilst the mother’s progress over the last twelve months has been positive, there remains a need to be realistic. In Dr Gillett’s experience this kind of therapy takes a minimum of two years to complete and sometimes longer. By the end of the second year the patient is likely to have made significant progress. Whilst it is realistic to expect that during the second year of therapy the mother’s contact could be extended and may progress to the stage of overnight contact by the end of that period, any notion of immediate placement of T in his mother’s full-time care is unrealistic. A full-time carer of T would need to be focussed on establishing parental attachment. In the immediate future, the mother’s focus needs to continue to be on engaging with therapy.

16.     The fact that immediate placement with mother would be inappropriate does not mean that she could not have increasing involvement in T’s life. For that to happen T would need to be in the primary are of a kinship or foster carer who the mother was prepared to acknowledge as the primary carer. Dr Gillett makes the point that it is a challenge to the emotional strength of any parent to expect that they can allow someone else to be the primary care giver for their child.

17.     Dr Gillett prepared a supplemental report in which she answered questions put to her by the parties. She was asked to advise on the practical measures and boundaries that can be employed by T’s carer ‘to appropriately manage the mother to safeguard T’. Dr Gillett advised that whoever is caring for T will need to have an ‘explicit understanding of potential difficulties in working with the mother’.  She went on to emphasise the need for a written agreement:

'3.1.2  …Relapse is an inevitable part of the change process and this needs to be built into any plan that maintains contact between T and the mother.  As such there would need to be a written agreement setting out very clear expectations in terms of the mother's behaviour, conduct and consequences therein.  The prior agreement between the parties regarding boundaries are essential so that everyone is clear about their respective responsibilities for ensuring these boundaries are maintained and T's needs prioritised.

3.1.3   Such an agreement could provide a list of expected behaviours during handover or contact (if supervised), such as, not to be under the influence of substances; to be punctual (e.g. not more than 10 minutes either way); to be respectful in interactions; to be calm and focused on T. I would add that equivalent expectations should be set out regarding the carers conduct. 

3.1.4   Such a plan should also detail the where, when, for how long, level of supervision and who and this should be adhered to with minimal variation…

3.1.5   This document should also detail what would happen should any of these expectations not be met…

3.1.7   The making of such an explicit document is not intended to suggest the likelihood of such difficulties, but rather provides reassurance to any carer in a 'what if' scenario.  By adhering to such an agreement all parties can build trust and a mutually respectful working relationship.  Alternatively non compliance provides evidence of continued difficulties and the requirement for greater professional intervention.’      

 

18.     Dr Gillett was also asked, ‘What should any such robust package of support…consist of for the mother…to be able to increase her caring opportunities for T’ and what should form part of any ‘detailed multi-agency plan including contingencies…should the mother take on the role of caring for T?’ Once again, Dr Gillett gives very clear answers. She says,

'3.3.1  A full contact development plan would need to be created as part of T's care plan by the Children's Team.  Whilst this would prioritise T's needs to create a secure attachment with his primary care giver it could also set out a framework of how the mother's contact with T could be gradually extended, in terms of frequency, duration and supervision levels.  Such a framework would need to incorporate for example, clear expectations of continued professional engagement by the mother, regular liaison with Mental Health and reviewing the impact of such changes on T.

3.3.2   As part of this contact development plan there would need to be, in my view, a detailed written agreement clarifying expectations and responsibilities of all parties involved as suggested in Section 3.1. above.  Should the contact development plan get to the stage where the individual making the judgement (on whether the mother is able to care for T at the defined time) is not a professional, there would be a likely requirement for regular support from Social Care.  This could be via meetings with Social Workers or Family support workers and / or by contact workers being present during the early stages of any such development.  The ability to share the experience and responsibility by discussing the details of any difficulties or uncertainty allows for the development of a more confident and fine tuned judgement. 

3.4.1   As detailed above a contact development plan would need to be created as part of T's care plan and this would need to identify other agencies involved in monitoring his wellbeing and development as well as those supporting his carers and / or parents.  For example the role of the mental health team would be crucial in monitoring the mother's mental state and regular liaison between them and the Children's team is likely to be required; the potential role for the health visitor could be explored to monitor any negative impact on T of increased contact and advising the mother as required as T's needs change over time; and information being provided to the Police, Emergency Duty Team (Children's Team) and the Crisis Team (Mental health) to ensure that if any acute situation were to arise their response would be appropriate and informed and necessary information passed on accordingly. ‘

 

Independent Social Worker

19.     Given the mental health problems within this family, Mr Eyles’ professional background makes him particularly appropriate to undertake this piece of work. Prior to re-training as a social worker, obtaining a Diploma in Social Work in 1992, he qualified as a psychiatric nurse in 1984. For 10 years he held membership of the West Midland Institute of Psychotherapy. He has additional training in working with people who have alcohol related problems.

20.     Mr Eyles has met not only with the father and BG but also with other members of the father’s immediate family. He has not met with the mother. It was not part of his remit to undertake any form of assessment of her. It was clear from Mr Eyles’ report that that is to be seen as a caveat to the conclusions he expresses.

21.     BG’s alcohol use has become an important issue at this hearing. The local authority’s case is that BG has not been open about the full extent of her drinking. That in turn gives rise to a second issue which is of concern to the local authority and that relates to the openness and honesty of some members of the paternal family. So far as these issues are concerned, at this point I simply note some of the information given by the paternal family to Mr Eyles.

22.     With respect to BG’s alcohol use, Mr Eyles records that BG told him that,

‘she had drank heavily in 2008, due to depression and she was drinking around a bottle of wine a day.  This went on for around three or four months.  BG’s daughter, JM, took her to the doctor and was put in touch with the Alcohol Services and she did see someone. BG went for one visit to AA and realised that it was not for her and stopped….BG said she now drinks wine occasionally when she is out but there are now no issues and drinks under the recommended maximum amounts for weekly consumption.

 

23.     With respect to the openness of the father and BG, Mr Eyles records an incident disclosed to him by the father and BG but which had not been disclosed at the last hearing. He records that,

‘The father said he gets unwell very quickly, over a few days.  He then told me that the weekend he withdrew from being considered for T, he spent £10,000 gambling.  He said in his own head he was trying to get more money for T and he said “I’d never do that again”.  He told me that he went online gambling and it took him just three hours to lose the money.  He remembers thinking “stuff it, I need as much money as possible”. He said he lost £10,000 but thinks he won £1,000 back.  He described this as being the first time that he had gambled.  He told his mother but they decided that they would not tell other members of the family.’

 

24.     After reviewing all of the evidence, including the evidence gathered from his own meetings with the paternal family, Mr Eyles comes to firm conclusions on some issues but not on the central issue of whether placement with BG would be likely to meet T’s needs.

25.     Mr Eyles says that within his assessment it is clear to him that BG has the necessary parenting skills to care for T. Her mental health difficulties appear to be well controlled and stable.  He also says that he is,

‘certain that this family are committed to T.  They are a family who are supportive of each other.  They all appear to have been there when the father has become unwell and [he] has been supported. ‘

 

26.     He then goes on to identify what he describes as ‘a number of areas which I think increase the risk of T being placed within the family’. There are three areas in particular. The first is the father’s mental health, He notes that,

‘The father has had five hospital admissions from around 2007/2008 and each admission has required inpatient treatment for around six weeks, although I understand a lot of time was spent on home leave.  This will impact on BG’s ability to care for T. I am particularly concerned about the father in that every year since he was diagnosed he has reduced or stopped taking his medication, which has contributed to his relapse.  Whilst he has not been in hospital since 2012, the information is that each year since he has stopped taking his medication and the involvement of the CPN has been required to encourage him to resume taking his medication.  This year he reduced it and whilst he was unwell he gambled £10,000 in three hours, online, possibly recouping around £1,000 of this £10,000. ‘

27.     Mr Eyles made the point that the father’s psychotic illness has a huge impact on his life and also impacts upon the whole family at those times when he becomes acutely unwell. The father is heavily dependent upon his family and in particular upon BG.

28.     His second concern relates to the relationship between the parents. Although the father says that the relationship has ended he also told him that his sexual relationship with the mother had continued until as recently as three or four months ago. Mr Eyles is not convinced that the relationship has ended. He is also concerned that in the past the mother has not been accepted within the father’s family, noting that she ‘has been excluded from family gatherings which the father has attended over the years’.

29.     So far as concerns any risks posed by the mother, since completing his report Mr Eyles has now had the benefit of reading Dr Gillett’s report which gives him some reassurance. He was impressed by the mother’s commitment to therapy over the last twelve months and recognised that that is a significant achievement in itself.

30.     The third area of concern relates to BG’s age. Mr Eyles observes that,

'BG is 68, which means she will be 84 when T is 16. BG does strike me as being fit and healthy and, at the moment, would not have any concerns about her ability to care for a young child and it is a matter for the doctors to comment on how active and able she is going to be over the next 16 years.  However, we also need to consider that BG is going to almost certainly have to assist the father if/when he becomes unwell.  BG is also going to have to cope with any possible interference that the mother may cause to the placement and, in my opinion, she is going to have to deal with the consequences of the mother and the father continuing to have a relationship.’

 

31.     In his letter of instructions Mr Eyles was asked to give an opinion on the suitability of BG as primary carer for T and of the support she would require. He says that,

‘It is my opinion that BG is able to offer appropriate care to T and that the father can contribute to this whilst he remains well.  It is possible that this is going to change as BG is 68 and as I have already highlighted, she will be 84 by the time T is 16.  BG has excellent support from her ex-husband, her daughter, JM, and her son, PG, who is putting himself and his new partner, RD, forward as carers of T if anything happens to BG. The ability of BG to care for T has to be weighed up with the risks that I have highlighted in the report.’

 

32.     In his oral evidence Mr Eyles underlined the strength of the family support available. He said that this is ‘one of the most supportive families I have come across. All of the family have been there for him’. He described the paternal family as a ‘sensible family’. The local authority’s position is that the paternal family are naïve and lack insight. Mr Eyles does not agree. He made the point that in terms of mental illness this family has had to cope with a lot, has lived through a lot and has a good understanding of mental illness.

33.     He was also asked to comment on the contingency plans proposed by the paternal family. He says that,

‘The family are all willing to support BG in caring for T but in the event that BG becomes unwell PG has informed me that he will take on the fulltime care of T, with his current partner, RD.  PG does not have any children and his relationship with RD is new.  They have been together for around 18 months and RD has a five year old son, A…PG is currently purchasing a house for him and RD.  In my opinion PG did show commitment but my assessment is that there are a number of uncertainties with regard to his inexperience of children; his relationship with RD being new; him caring for A and possibly having their own children and if anything does happen to BG the family are going to have to work out how they monitor the father’s illness in the future.’

 

34.     In his written report Mr Eyles came to no firm conclusion about the appropriateness of placement of T in the care of BG. In his oral evidence he was taken to a recent Adult Health report relating to BG. That report raises some concerns about BG’s recent alcohol use. On that issue Mr Eyles was very clear. He said that if the evidence supports a finding that there has been a relapse in terms of her alcohol use then for him ‘that would be the deal breaker’ and would persuade him against placement of T with his paternal family.

The local authority’s position

35.     Lynsey Mirfield continues to be T’s social worker. She notes that T still needs a high level of care. He is not crawling. He has stiffness in his legs which has led to a referral for physiotherapy. His health visitor remains concerned that his development is delayed. Although the foster carer has seen some improvements he is still not in a settled routine and she continues to regard him as the most difficult child she has had in placement.

36.     In her final statement Ms Mirfield reviews the expert evidence received since the hearing in April and reflects on the implications of that evidence on care planning for T. She remains of the view that adoption is the appropriate placement outcome. The local authority has two prospective adoptive families who may prove to be a suitable match. Both couples have been informed, in anonymised terms, about the background history of T and his birth parents. If the court makes a placement order she is confident T can be placed within four months.

37.     At the time Ms Mirfield prepared her statement the mother’s position remained the same as at the April hearing. She sought return of T to her care and if that is not possible she did not agree to placement within his birth family but wished him to be adopted. The mother has now changed her position and agrees that placement within the paternal family would be preferable to placement for adoption.  Ms Mirfield was also unaware, until shortly before this hearing began, that the parents and BG are exploring the possibility of mediation.

Family Meeting

38.     Since the last hearing the local authority has taken the initiative in bringing the paternal family together to consider what it is that they are able to offer. A meeting on 23^rd July. During this hearing that meeting has been variously described as a family meeting and as a family group conference. It is important to be clear that the meeting that took place on 23^rd July was not a family group conference. Many local authorities run or commission family group conferences for children in their area. Such conferences follow a set model and are organised by practitioners trained and qualified to run them. This family meeting did not follow that model.

39.     According to the minutes of the meeting held on 23^rd July, the purpose of the meeting was ‘to establish what support could be offered from the family to BG in her caring role and to the mother’. The meeting was chaired by the social work Team Manager, Sue Moseley. Lynsey Mirfield was also present. The meeting was attended by BG, DG (the father), JM (his sister), PG (his brother), RD (PG’s partner) and JG (paternal grandfather). The guardian attended as an observer.

40.     The minutes of the meeting give the impression that the social workers set a rather negative tone for the meeting. The minutes record that Sue Moseley made the point that if a special guardianship order were made that

‘would not avoid court applications being made and if the mother disagreed with a decision BG was making she could go to court which could lead to years of litigation…Sue Moseley highlighted the stress and strain that going to court could have on the family, as the current proceedings have had…Sue Moseley highlighted the complexities of the private law system…Sue Moseley highlighted that contact for T could be disruptive both directly and indirectly’.

 

41.     The guardian’s perspective is that the local authority was not being negative but was being robust in ensuring that the paternal family understood the concerns and the risks. The minutes suggest that notwithstanding that robust approach the family remained positive:

‘PG and JM said they would help with care for T and if BG needed a break then T could stay with either of them…PG has been identified as the contingency were BG unable to care for T…PG said his work was flexible and even though he recently received a promotion it does mean he can work from home sometimes…When asked what would happen if PG were to separate from RD, PG said this would not change anything and he would be the full-time carer for T. [He] described this as a joint team effort…’

 

42.     Lynsey Mirfield’s reflections on that meeting are that it highlighted naivety and lack of insight on the part of the paternal family:

‘It was very clear that the family would wish T to be placed with them, although they accepted the difficulties that this placement would pose in relation to disruption from the mother. There was a naivety in the impact and how they would deal with it…

The family was unable to show insight or give assurances about how they would manage the father’s mental health and thereby protect T because they minimised and normalised his condition believing that it is unlikely to have any impact on T…

The father’s relationship with the mother was also discussed…although it is very clear that the family disapproves of the mother they seem to lack insight into both the genuine affection, as Gary Eyles describes it, the father has for the mother and the potential impact of this on T’s stability…’

 

Analysis of placement options

43.     The social worker goes on to outline and critique each of the placement options, outlining the positives and the negatives. With respect to the possibility of a special guardianship order in favour of BG, she sets out the following positives:

‘The paternal family want T to be cared for by BG under a Special Guardianship Order. The mother vehemently opposes this. If it was concluded by the court that a family placement was the best outcome for T then this would, in my assessment, be the most appropriate order. It would afford the carer(s) the opportunity to exercise increased levels of parental responsibility for T and to restrict the parental responsibilities of others; the placement would be considered long-term, providing security and stability. It would allow T to grow up within his birth family and continue a relationship with his mother.’

 

44.     She also outlines the negatives:

‘A Special Guardianship Order is designed for a child to grow up within their family without ongoing intervention from professional agencies. For T this could not be the case…there would be a need for ongoing professional monitoring/oversight from Children’s Services and liaison between all professionals involved and this would have to be bases (sic) on full co-operation from all parties. This involvement from Children’s Services would be necessary to ensure T’s safety and well-being for the duration of his minority. However it would mean that T remained within the Social Care system unnecessarily being subject to regular reviews and visits from Social Workers.’

 

45.     As at the last hearing, the local authority arrives at the conclusion that adoption is the only realistic option. Ms Mirfield says that,

‘Adoption is an option of last resort, only to be considered when all family options are unsuitable. In this case I have been unable to identify any family members who would be able to reliably offer good enough protective care for T on a long-term basis…Whilst there are risks in placement outside of the birth family those risks are significantly less than the known risks of returning him to the care of his birth family. I am in no doubt if T was to be placed in his family he would be at risk of emotional harm.’

 

The mother’s position

46.     Since the hearing in April the mother has continued to engage well with her psychotherapist. She is committed to continuing with therapy irrespective of the outcome of these proceedings. She underwent a Care Programme Approach (‘CPA’) review on 22^nd August. The outcome confirms mother’s present stability and engagement. The report states that the mother,

‘has engaged appropriately with the services since the last review. There have been no management issues and no evidence of relapse. She has been attending psychotherapy on a regular basis. No evidence of past risk behaviours…[her] mental state remains stable and consistent. She has experienced some distress with regards to child custody legalities; however these episodes of distress are as expected under the circumstances she appears to have coped appropriately. No evidence of alcohol misuse. No evidence of risks to self or others…No increased risks identified. Reduced risks to self and others as no evidence of these behaviours for the past year.’

 

47.     Prior to the last hearing the mother had undertaken hair strand testing to determine whether she had been abusing alcohol. Because of the hair products she was using the tests produced a false positive. After a period of not using those hair products the mother was tested again. This time, the result was negative.

48.     In my earlier judgment I referred to the mother’s older child, N. N is now aged 16 and is living in local authority foster care. She is accommodated under s.20 of the Children Act 1989. The local authority remains concerned that given the mother’s emotionally damaging care of N the risk of repetition were T to be placed in her care are unacceptably high. The mother acknowledges her responsibility for her poor care of N but makes the point that that was at a time when she was unwell. Thanks to the psychotherapy she is now in a much better place. She is concerned about the local authority’s unwillingness to accept that to be the case.

49.     The mother’s position has changed since the last hearing. Her position then was that if the court did not consider it to be in T’s best interests to place him in her care then she would consent to him being placed for adoption. She did not consider it appropriate for him to be placed with his paternal family. Her position now is that she accepts that if T is not placed in her care then he should be placed in the care of the paternal family with BG as his primary carer.

50.     The mother recognises the importance of building good relationships with BG and acknowledges that they have not been particularly good in the past. Following a suggestion I made at an earlier hearing there has been a round table meeting between herself, the father and BG facilitated by their respective solicitors. The mother proposes that if T is placed with BG they should also undertake family mediation. A mediator has already been approached.

Mr and Mrs H

51.     The mother proposes that her friends, Mr and Mrs H, will support her in caring for T if he is returned to her care. Mr and Mrs H have both filed statements. I have also heard oral evidence from Mrs H. Mrs H said that they are offering to have the mother stay with them occasional nights if she needs support or somewhere to stay. The local authority has undertaken a viability assessment. The assessment was negative. Mr and Mrs H had previously applied to become local authority foster carers. They had withdrawn because they found the process too difficult and too invasive.

52.     Whilst it is encouraging to note that the mother has some supportive friends, I was not persuaded that Mr and Mrs H have anything to offer that would assist me in making important decisions about T’s future.

The paternal family’s position

53.     The father’s position, supported by his immediate family, is that there should be a special guardianship order in favour of paternal grandmother, BG. At this hearing I have heard evidence from father, grandmother, paternal uncle, PG, his partner RD, and from paternal aunt, JM. I also agreed to a late application by the local authority to hear evidence from Dr K, a general practitioner at the surgery where BG is a patient.

Dr K

54.     In my earlier judgment I recorded BG’s acceptance of her own mental health difficulties and, as she described it, her past abuse of alcohol (paragraph 97). I also set out evidence from BG’s treating consultant psychiatrist, Dr A (paragraphs 69 to 71). Since that hearing the local authority has put in train further investigation of BG’s health. In particular, with BG’s consent, it has obtained an Adult Health Report (Form AH) from her GP on which there is a summary written by the local authority’s Fostering Medical Adviser.

55.     Form AH gives rise to some concerns. In response to a request for information about dates and results of relevant investigations, the form records ‘4/3/14 – Gamma GT = 70 Abnormal’. The form goes on to seek comment ‘on how the applicant copes physically and mentally with any chronic condition’. In response, Dr K records:

‘On 14/2/14 GP medical entry reads “Daughter telephoned – concerned re state of health, is still smoking and drinking again, losing weight and coughing. Strong FH of breast cancer. Doesn’t look after herself well”. This coupled with the Gamma GT blood test on 4/3/14 being abnormal causes me concern re patient’s ability to care’.

 

56.     Although that appears to present a picture that is concerning, the totality of the information from the BG’s GP surgery is conflicting and confusing. Following the last hearing the father’s solicitor wrote to BG’s surgery asking for a medical report on BG. They did so with BG’s consent. They were clear in their letter of instructions that the report was required in order to assist the court in assessing BG’s ability to care for T. The response, dated 20^th May, was written by Dr S. After outlining her mental health history, the following passage is of particular relevance:

‘It had become apparent that she had turned to alcohol and this was adversely affecting her symptoms and illness. She was also referred to the Community Alcohol Team. It appeared she was compliant with [the referral], medication and input. It appears she could be considered in complete remission sometime around about 2010 to 2011, but she has remained under infrequent Out Patient review on a lower dose of antidepressant known as Mirtazapine. She has remained in control of her alcohol consumption which is at sensible and healthy levels, most recently documented in 2014 by a colleague in  the region of two glasses of wine at the weekends. She remains compliant with her blood pressure medication and monitoring.’

 

57.     In light of the conflict between the Form AH and the letter from Dr S, during the course of this hearing father’s counsel, Miss Nadia Mansfield, had a telephone conversation with the senior partner at the GP Surgery, Dr R. BG has been a patient at this practice for many years. Although she has seen all of the doctors who practice from that surgery, she considers Dr R to be the GP who knows her the best. On 28^th August, Dr R wrote a letter for the court. She said,

‘I have known BG personally for almost 25 years and during that time BG has suffered from a number of episodes of depression and alcohol misuse…At the point where she was drinking she had a blood test for her liver which showed an enzyme called Gamma GT was elevated and this can be a marker of alcohol intake. Normal levels are less than 35 and in early 2009 her levels were at 60, but in late November 2009 after abstention her Gamma GT levels had returned to a normal level of 29. BG admits now to drinking two glasses of red wine at the weekend but we note that her Gamma GT recently was at 70, so double the normal Gamma GT to this level. It is difficult to ascertain a person’s alcohol intake, as we are dependent on their accurate reporting to us. The elevated Gamma GT in itself does not mean that BG is drinking, as other toxins such as medicines or drugs can also elevate this enzyme. In particular, BG is now taking medication called Mirtazepine which is known to elevate liver enzymes and she was not on this drug previously when her levels were normal. The only way to ascertain this would be to stop the Mirtazapine for a period of three months and to repeat the liver function tests afterwards. I would not recommend this as this may destabilise BG’s currently stable mental health.’

 

58.     It was against that background that Mr Slater, counsel for the local authority, was insistent that Dr K should give evidence. At such short notice Dr K was not able to attend the hearing to give evidence but was able to give evidence by telephone.

59.     Dr K disagreed with his senior partner, Dr R. Dr K agrees that Mirtazapine can lead to a rise in Gamma GT levels. However, he is not persuaded that that is the explanation in this case. His reason for arriving at that conclusion is that on 19^th May 2009 (when BG was not taking Mirtazapine) the level was recorded as 60 whereas on 12^th November 2009 (when BG was taking Mirtazapine) the level was recorded as being 29. Dr K agreed that Mirtazapine was more likely to cause raised Gamma GT levels after almost 5 years of taking that drug (i.e. at the time when Gamma GT was recorded at 70) than after 3 months of taking the drug (i.e. at the time when the level was recorded at 29).

60.     Dr K was clear that a reading of 70 would not be caused by drinking two glasses of wine per week. His opinion is that BG’s recent alcohol consumption has been very much higher than she claims. The recommended maximum consumption of alcohol for an adult is 21 units per week. In his opinion a Gamma GT level of 70 would suggest a consumption level of around 42 units per week. According to Dr K, that is the equivalent of 20 pints of beer per week.

61.     Dr K stood by the view expressed on Form AH that he would not support a placement of T with BG.

Paternal grandmother

62.     In my earlier judgment (paragraphs 94 and 99) I described the circumstances in which the father and BG withdrew from the assessment process last September. As a result of that decision they had a farewell contact with T. At the time of the last hearing in April they had not seen T for some six months. Since the hearing in April contact has been reinstated. They now have contact for one hour on Tuesday mornings and for three hours on Thursday mornings. Although T was a little tearful during the first two contact sessions, since then contact has gone very well. They play with T, they read to him, they cuddle him, they have taken him for a walk in his pushchair. On Thursdays they give him his lunch. BG says that after contact, particularly Thursday contact, she ‘feels quite invigorated’. She says she is quite sure she could adapt to having him in her full time care.

63.     BG also said that she believes that the relationship between herself and the mother is improving. ‘I think we are getting on ok’, she said. She recognises that the mother has made a lot of progress over the last year. She found the family conference, hosted by solicitors, to be very helpful. Having read Dr Gillett’s report she says she feels sad that she has let the mother down in the past.

64.     As for the key issue of her alcohol consumption, BG says that prior to the blood test in March 2014 she had been drinking around 1½ bottles of wine per week. After that blood test Dr R had told her that the raised Gamma GT level could be related to her drinking. Since then she has reduced her consumption. She insists that she is not abusing alcohol and was not doing so when tested in March.

65.     So far as concerns the money gambled away by the father, BG said that the first she knew about this was shortly before they were visited by Mr Eyles. The father had asked her not to tell the rest of the family. Recognising his embarrassment at what he had done, she had agreed.

66.     BG remains committed to T and is adamant that she would be able to manage T in her full-time care and that she wishes have him placed with her.

Father

67.     Since the hearing in April, the father’s condition has remained stable. His most recent CPA review was on 14^th August. The report notes that,

‘DG’s current mental state presents as euthymic with no evidence of mania or depression…he reports that he is concordant with his medication currently. His mother concurs and manages his medication to ensure concordance…He appears to understand the triggers in regards to relapse when discussed with him…He engages well with his treatment plan…His Mother is consistently vigilant with his medication and will alert CPN immediately with any concerns around his mental state or non-concordance…He suffered a brief period on (sic) non-concordance with medication. Due to his Mother’s immediate reporting of this, a relapse was avoided and he agreed to re-engage with treatment. He has been experiencing a very stressful period recently in regard to guardianship proceedings. However, he appears to be coping with this well and seeking support and advice appropriately.’

 

68.     Like BG, the father believes that contact with T has gone well. He strongly supports his mother’s wish for T to be placed in her care.

69.     The father refers to the round table meeting which took place on 1^st August between himself, BG and the mother. He says that,

‘it is fair to say that I left the meeting being somewhat disheartened as to the outcome. I was nonetheless pleased that the mother had agreed to attend…Subsequently the mother has indicated through her solicitors that she has had a change of mind and reconsidered her position and indicated her willingness to attend mediation with myself and my mother. I have taken it upon myself to make a referral to [mediation] and we are awaiting the arrangements of a first meeting with the mediator.’

 

70.     The local authority remains concerned about the relationship between the parents. As I noted earlier, that concern is shared by Mr Eyles. The father insists that they are not in a relationship.

71.     The father notes the concerns about BG’s alcohol consumption. He says that she is not drinking excessively. He would know if she was. He does not believe his mother has a problem with alcohol. He is confident she is not a secret drinker

72.     The father accepts that he gambled away around £10,000 in three hours. This occurred sometime in September or October 2013. It was his money. He has never done anything like that before or since. He is embarrassed at his foolishness. Although when he finally told BG what he had done he had asked her not to tell the rest of the family he did not accept that that is an indicative of lack of openness and honesty. Had he wanted to hide it he would not have disclosed it to his mother or to Mr Eyles.

Paternal uncle, PG

73.     BG has three children. PG is her oldest son. He is 45 years old. He is single. He has no children of his own.

74.     PG has been in a relationship with RD since September 2012. It is a stable and committed relationship. Although he has been living with his mother since January 2014 he is looking for a property to purchase as a home for himself, RD, and her five year old son.

75.     PG confirmed that his family is very supportive in caring for his brother, DG. He says that he always knows when his brother is not well, ‘even from just phone conversations’. He says that his family ‘easily recognise symptoms of relapse and quickly rally round to ensure he gets the additional support he needs’.

76.     In the event that T were placed in his mother’s care he and RD would be very supportive. In the event that BG was unable to care for T for whatever reason then he and RD would care for him. He fully understands that his brother would not be able to be T’s primary carer.

77.     In his written evidence PG says that he has had very little contact with the mother. He is aware that she has faced significant mental health problems throughout her life. He then goes on to say that,

‘Should T have to be placed in mind and RD’s care then I am confident that I would be able to deal with any issues arising out of the mother’s mental health problems. In the light of the information that I have read about the mother I would have to say that I would not trust her and I would set very strict boundaries in respect of any future contact that she may have with T. Both myself and RD would always be mindful of the potential risks that the mother poses to T and I appreciate that contact would be supervised. I would set extremely strong boundaries…’

 

78.     Those comments find an echo in the minutes of the family meeting held on 23^rd July:

‘Discussed contact arrangements between T and his mother. PG said he would be the one to supervise it; it wouldn’t happen in the home and would be separate. PG said he would have someone with him given the risk posed by the mother after reading the pre-birth Case Conference. He said “he wouldn’t trust that woman as far as he could throw her.” PG said he would have no hesitation in stopping contact if he had any concerns.’

 

79.     The strength of those comments is somewhat surprising given PG’s lack of direct contact with the mother. He says that his views have been heavily influenced by the information he has been provided by the local authority. The local authority has been very negative about the mother. Based on what he had been told about the mother he had come to the conclusion that if T cannot be placed with BG then he should be placed for adoption.

80.     PG has lived with his mother since January 2014. He sees her every day. He says he is not aware of any problems with alcohol misuse earlier this year. He is aware that his sister telephoned BG’s GP sometime in or around February 2014. He and his sister were concerned that BG had a persistent bad cough and that she needed to see a doctor. It was agreed that JM would telephone the GP.

81.     PG responded to questions put to him by Mr Slater on behalf of the local authority, in a very forthright way. He stood his ground, his ground being that this is a very supportive family who care for and look out for each other. The impression he sought to give – and, indeed, succeeded in giving – was that if he promises to do something then he can be relied upon to do it.

Paternal uncle’s partner, RD

82.     RD came to England from China in August 2009. She gave up her employment as Managing Director of a glass making company. She came with her husband and young son. They came because her father-in-law was seriously ill with cancer. He died two months after they arrived. RD and her husband subsequently separated and are now divorced. Her former husband has contact with their son every weekend. She spends weekends with PG at BG’s home.

83.     When she arrived in England she spoke hardly any English. She is working very hard to improve her English. She is attending an English language course. Her English is improving though is still fairly basic. At this hearing she has had assistance from a Mandarin-speaking interpreter, though was able to give some of her answers in English.

84.     RD has now been granted indefinite leave to remain in the UK. She would like to set up her own business here but realises that first she must concentrate on improving her English

85.     RD is aware of the proposal that T should be cared for by BG and that in the event BG should be unable to care for him for whatever reason then she and PG would care for him. It is clear that because of the language barrier her understanding of the background history is rudimentary. However, I was satisfied that RD understands the role which she and PG may be required to fulfil if BG becomes unable to care for T and that she is fully supportive of that plan. I was impressed by her obvious sincerity in offering to care for T should that become necessary.

Paternal aunt, JM

86.     JM is BG’s daughter.. JM is married and has two sons aged 22 and 18. She is very close to her mother and brothers. She speaks to her mother by telephone every day. She sees her mother once a week. She supports the proposal that T should be placed with BG. Although she confirms that hers is a close-knit family JM does not make any specific offer to care for T or in caring for T in the event that BG should become unable to care for him.

87.     In February 2014 JM became concerned about her mother’s health, and in particular about her persistent cough. She was very worried. Without any reference to BG she took it upon herself to contact her GP. In order to ensure that the GP took action she says that she ‘flowered up’ the information she gave and as well as referring to her mother’s cough also expressed concern about her mother smoking and drinking again.

88.     The reference to her mother’s drinking being a problem was a lie which she now regrets. She had not been worried about her mother’s alcohol use. In her daily contact with her mother she had not had any concerns that her mother may have been drinking excessively. She had lied in order to ensure that the GP responded.

The Children’s Guardian’s position

89.     The guardian’s position also remains unchanged from the date of the last hearing. In light of the expert evidence and her observation of the family meeting, she still has a number of concerns about placement with the paternal family.

90.     She is concerned about the implications of the Gamma GT recording in February which may be an indicator that BG resorted to alcohol at a time of increased stress.

91.     She is concerned about the pressures that would be placed on BG. She says that,

‘It is my view that Gary Eyles raises significant and relevant concerns.  He is an experienced practitioner and his inability to reach a firm conclusion indicates the difficulties present.  There is no doubt that BG is able to care for T in the immediate future but her ability to continue for the duration of his minority is unlikely. Despite my discussion with BG and DG, there are no plans within the family to offer regular respite to BG, such as overnight care for T, and as such, the significant demands will fall on her.  This is likely to reduce her stamina in the long term.’

92.     She is concerned that the father and other members of the paternal family appear to believe that if T were placed with BG, the father would be a contingency carer for T in the longer term. She acknowledged that Mr Eyles did not get that impression.

93.     She is concerned that the paternal family has minimised the emotional and psychological impact of managing contact, and offering the level of scrutiny of the mother’s mental health. She says that there ‘was little acknowledgement of the emotional demands of the situation both under stable circumstances and should there be a relapse’. She makes the point that ‘The burden of this will largely fall upon BG.’

94.     The guardian ends her report with an assessment of the placement options, considering the positives and negatives of each option. She comes to some clear conclusions:

'63.    This is a complex situation with positive features for a number of options in the short term. 

64.      It is my assessment that the focus should be on the timescale for T.  There are options available within the family in the short term but the options for the long term and final permanent decisions about his care to be made either about placement with his mother or paternal grandmother, are not possible at this time.  Nor is there a clear timetable for this. 

65.      This creates uncertainty and presents diminishing returns for T in the balance of time to achieve permanence versus the opportunity to be brought up in his family.  This is not in his best interests.

66.      All children need to have the stability and security of permanence within their first year or so in order to enable them to develop the secure attachments necessary for psychological security.  I would argue that given T’s needs and the mental health history of his parents, this is particularly pertinent.

67.      The Children Act 1989 promotes minimum intervention and minimum delay for children.  Proceedings have been ongoing for over a year. As such, adoption is the option which will promote T’s best welfare interests in the long term.

 

95.     In the guardian’s opinion placement with the paternal family would leave too many unanswered questions. T needs psychological and emotional security which only adoption can offer. In so saying, the guardian acknowledges that T’s developmental delay (which she considers to be less significant than does the local authority) and more importantly the mental health difficulties of both birth parents, may reduce the potential pool of prospective adopters.

Discussion

96.     In paragraphs 108 to 118 of my earlier judgment I set out the law to be applied in determining welfare issues. It is unnecessary to set it out again.

97.     In my earlier judgment I undertook a welfare checklist analysis in accordance with s.1(3) of the Children Act 1989. I now update that analysis, where necessary, in light of the further evidence that is before the court.

98.     Section 1(3)(b) requires the court to have regard to T’s physical, emotional and educational needs. I now have the benefit of Dr Essex’s report. Notwithstanding the ongoing concerns of the local authority (not shared by the guardian) that T may be suffering some developmental delay, in the light of Dr Essex’s report I am satisfied that T’s physical and educational needs are no different from those of any other child of his age.

99.     With respect to T’s emotional needs, I accept that he needs to be protected from the emotionally abusive parenting experienced by his half-sister, N. He also needs stability of placement with the opportunity to form a strong attachment to his principal carer and not to find himself being constantly shuttled from one family member to another. I also bear in mind that in light of the mental health difficulties of both of his parents there is at least a possibility that over time he, too, may develop mental health difficulties. There is no evidence on that last issue.

100. Section 1(3)(d) requires the court to have regard to T’s age, sex, background and any characteristics of his which the court considers relevant. T was removed from his mother’s care when he was just 5 days old. He is now almost fourteen months old. The local authority issued these proceedings when T was 2 days old. In my earlier judgment I set out the history of the litigation and explained the reasons for the delay. I accept that so far as concerns the need to make final decisions about T’s future care, time is now of critical importance.

101. Section 1(3)(e) requires the court to consider any harm which T has suffered or is at risk of suffering. The possibility of significant deterioration in the mental health of either of T’s parents gives rise to potential risk to T’s emotional wellbeing. Whether that risk materialises will to a very large extent depend upon the insight of other family members and their ability to respond in a timely and appropriate way in order to safeguard T. So far as the father is concerned, the evidence is that the paternal family is well tuned-in to his mental state.

102. Section 1(3)(f) requires the court to consider how capable each of T’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. This is undoubtedly a key issue.

103. The mother has made great strides during the last twelve months. Her engagement with psychotherapy has been excellent. Both Dr Gillett and Mr Eyles regard that as a significant achievement. There is no reason to believe that she will not continue to engage. She appears to be well-motivated and determined. If T remains within the care of his birth family there is reason to believe that the mother’s relationship with him can develop, perhaps to the extent of including overnight contact in the longer term.

104. However, two important points arose from Dr Gillett’s evidence. Firstly, that the minimum period for which psychotherapy is required is at least two years. It could take longer. Three or four years would not be unusual. In part, the length of the therapy will depend upon any lapses along the way (of which so far there have been none) and how the mother responds. Secondly, whilst contact may progress to overnight contact by the end of the second year of therapy it was clear from Dr Gillett’s evidence there would be no prospect of rehabilitation of T to the full-time care of his mother until after the initial two years of therapy have been completed. That is not to say that rehabilitation could take place in September 2015 but that there is no prospect of rehabilitation being considered before September 2015.

105. As for the father, no-one suggests that he is capable of meeting T’s needs. His enduring psychotic illness, his constant need for medication, the continuing risk of relapse requiring hospital admission all point unerringly against him being either T’s primary carer or even a contingency carer. If T were to be placed in BG’s care then, since the father lives with BG, it would be reasonable to expect that he may play some limited part in T’s day to day care but he will never be able to meet the full range of T’s care needs.

106. There are three other members of the paternal family who must also be considered under s.1(3)(f): BG, PG and RD.

107. It is clear that BG is able to meet T’s day to day care needs, both his physical and his emotional needs. She is an experienced parent. She is also a former school teacher. Mr Eyles has no doubts about her basic parenting skills. There is equally no doubt about her love for and commitment to T. At this moment in time I am satisfied that she is capable of meeting T’s needs.

108. However, the risks to her ongoing capacity to meet T’s needs cannot be ignored. The principal risks relate to her age, her alcohol consumption, the care demands made upon her by DG and her ability to manage potential conflict with the mother. With respect to each of those risks it is important to remember that in the summer of 2013, when T was a baby and BG was aged 67, the local authority was intending to place T in the care of BG under the auspices of a special guardianship order. That that did not happen was not the result of any negative assessment of BG or change of heart by the local authority but the result of BG withdrawing her offer to care for T. The reasons for that withdrawal are explained fully in my earlier judgment.

109. Mr Eyles makes the point that by the time T is aged 16, BG will be aged 84. Her age is, therefore, a significant factor. Three points must be made. Firstly, Mr Eyles could have concluded that on age grounds alone, placement with BG is not viable. He didn’t. Indeed, having identified the positives and negatives of placement with BG, Mr Eyles does not express a firm conclusion either way. Secondly, BG’s general health appears to be good. As described in my earlier judgment, she is a very active 68-year-old. Thirdly, she is surrounded by a very supportive family. Mr Eyles said that the paternal family ‘is one of the most supportive families I have come across’.

110. The next concern about BG relates to her alcohol consumption. I do not accept the evidence of JM that she lied to the GP about her concerns in respect of BG’s drinking. JM had been very supportive of her mother during her previous period of alcohol misuse and was, I am satisfied, again concerned in February 2014. It may be, of course, that her previous experience made her over-cautious, though that is pure speculation. PG, who has been living with BG since January 2014, said that he had had no concerns about BG’s drinking at that time or since.

111. BG told Mr Eyles that when she had previously had a problem with alcohol she had been drinking a bottle of wine a day. BG says that at the time when Dr R made her aware of the Gamma GT result earlier this year she was drinking around 1½ bottles of wine per week. If she is telling the truth, that would not account for the high Gamma GT result.

112. What am I to make of the Gamma GT result? There is conflicting evidence from three GPs. There is conflict between the oral evidence of PG and JM and the note of JM’s telephone call recorded on BG’s medical records. BG is insistent that her alcohol consumption earlier this year was nowhere near the level it had been at in 2009. Mr Eyles said that for him this issue is the potential ‘deal breaker’. If BG has been misusing alcohol again then he would change his position to one of not supporting placement with BG.

113. This is a crucially important issue. I have come to the conclusion that the evidence presently available to the court does not permit a clear finding. If, ultimately, I am minded to consider placement with BG then there will need to be a repeat liver function test and, if still raised, expert evidence on the interpretation of that result.

114. The third concern relates to the care demands made upon BG by the father. He lives with her. It is clear from his recent CPA review that BG plays an important role in ensuring that he is compliant with his medication. It is she who is likely to be the first to notice any deterioration in his condition. Although the family say that at such times DG will go and live with his father (T’s paternal grandfather) in Wolverhampton, his dependency on BG is such that it is not possible to be confident that that would happen. Hitherto BG has been able to prioritise caring for DG. If T were placed in her care she would need to prioritise his care needs above those of DG. I accept that there may be times when this would be a significant challenge. However, one again it is appropriate to recall Mr Eyles’ observation that the paternal family ‘is one of the most supportive families I have come across’.

115. The fourth concern relates to BG’s ability to manage potential conflict with the mother. This is untested. There is an indication that with the benefit of reading Dr Gillett’s report BG now has greater insight into the mother’s mental health difficulties. BG, more than the parents, spoke of how helpful she had found the round table meeting facilitated by their solicitors. Like the parents, she, too, is willing to explore the possibilities of mediation. Throughout this hearing BG and the mother have sat next to each other. Whilst I am aware of the risk of over-interpreting what I observed in court, there appeared to be positive interaction between them, the occasional sharing of smiles and a degree of warmth.

116. PG and RD do not put themselves forward as primary carers for T but as supportive carers and potentially as contingency carers in the event that BG should at any point become unable to care for T (whether temporarily or permanently). Because, at this stage, they are back-up carers they have not been formally assessed.

117. Mr Eyles makes the point that their relationship is new and untested. I do not agree. Their relationship has been ongoing for two years. Although at the moment PG lives with BG and RD lives in rented accommodation, they are looking for a property to purchase. They spend weekends together at BG’s home. In the modern era I do not accept that a two-year relationship can properly be described as ‘new’.

118. My impression is that PG is sincere in his offer to care for T in the event that BG should become unable to care for him and to support her for so long as she is T’s primary carer. T is his brother’s son. He is part of the paternal family. The supportiveness of this family extends to ensuring that T is protected, nurtured and well cared for. I am satisfied that the offer of support can be relied upon and that he understands what that offer requires of him.

119. I have noted that in his written evidence PG displays a degree of antipathy, hostility even, towards the mother. He explains that by saying that his views have been coloured by the negative way in which the mother has been presented by the local authority. I am not persuaded that that provides a full explanation. There is no evidence of any contact between himself and the mother which could have given rise to any ill-will. It seems to me to be likely that one of the reasons for his apparent antipathy towards her is the tie of family loyalty and the importance of protecting his brother (and his wider family) from any adverse outside influences not least, potentially, from the mother. If PG is to be involved in T’s care he must read Dr Gillett’s report in order to gain understanding of why, in the past, the mother behaved as she did.

120. So far as RD is concerned, she brought her son A to England when he was very young. She gave up the security of a good job in order to come here. She has carved out a life for herself in England. There is no evidence to suggest that her care of A is anything but good. The local authority has not had cause to be concerned about her parenting. She is willing to provide care for T as and when necessary. Although she does not speak English fluently I am satisfied that she understands the commitment PG is making, that she supports it and that she can be relied upon to honour it.

121. If I am persuaded to make a final care order then I must go on to consider the local authority’s application for a placement order. In considering that application I must have regard to the somewhat different welfare checklist which is set out in s.1(4) of the Adoption and Children Act 2002. I undertook such an analysis in my earlier judgment (paragraphs 132 to 135). It is necessary to update that analysis, in particular so far as concerns s.1(4)(f).

122. Section 1(4) requires the court to have regard to:

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

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

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

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

 

123. T has a meaningful relationship with both of his parents and with BG. Placement with BG would enable those relationships to continue. Dr Gillett was clear that biological relationships are of particular importance in the context of a child’s self-identity. Whilst an adoptive placement could be expected to provide T with a ‘forever family’ that would provide love, care and nurture, that new family would not share his DNA. There is plainly some value in his relationship with his birth family continuing, though that must be weighed against other factors.

124. I have already evaluated the capacity of the key adults to provide a secure environment for T and otherwise to meet his needs. I have also considered the wishes and feeling of T’s wider family. They do not wish him to be adopted. They want him to remain part of their family. They wish to be able to care for him now and throughout the remainder of his minority.

125. Section 1(3)(g) and s.1(5) of the Children Act 1989 and s.1(6) of the Adoption and Children Act 2002 require the court to consider the range of powers available and to exercise those powers proportionately, permitting only that level of state intervention that is necessary to secure T’s welfare. That brings me back to the decision of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146.  (see paragraphs 113 to 114 of my earlier judgment). In summary, Re B-S (Children) makes it clear that the following principles of approach should be followed when adoption is the proposed outcome:

(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 that 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 in a global, holistic way 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.

126. In this case there are four realistic placement options that must be evaluated: placement with the mother, placement with BG, placement in long-term foster care and placement for adoption.

Placement with the mother

127. The main advantage of returning T to the care of his mother is that she is his mother. As Lord Templeman memorably put it in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, at 812,

‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.’

 

128. There is no doubt that this mother loves T very much indeed. For the last twelve months she has been committed to contact with him, limited though it has been. I have no doubt that T has been key in providing the motivation to engage with psychotherapy, with positive results.

129. The disadvantage of returning T to his mother’s care is that it is clear from Dr Gillett’s evidence that she has not yet reached that stage in her therapy, and is unlikely to reach that stage for at least another year, at which she would have the capacity to be T’s primary carer. Until that stage is reached, placement of T in the care of his mother would be likely to place him at risk of emotional harm.

Placement with BG under a special guardianship order

130. The positives of such a placement are that:

(i)         it would give BG enhanced parental responsibility enabling her, in most circumstances, to exercise parental responsibility to the exclusion of T’s birth parents;

(ii)       although there would be a need for continuing local authority support, at least in the short to medium term, and perhaps also the need for a supervision order, special guardianship would not give rise to the stigma which attaches to being a looked after child;

(iii)     it would keep T within his birth family and would enable T to remain in contact with both of his parents as well as with his wider family; in particular, it would enable him to build a meaningful relationship with his mother as she continues to make progress with her therapy.

(iv)     there is clear evidence that despite her age BG is able to meet T’s day to day care needs; she has a very supportive family around her; I am satisfied that the wider family can be relied upon to provide support including, in the case of PG and RD, taking over T’s care should BG become unable to care for him for whatever reason and for whatever period;

131. The negatives of such a placement are that:

(i)         the birth parents would continue to share parental responsibility and would be entitled to make applications to the court with respect to T including (subject to obtaining the leave of the court) applying for the special guardianship order to be varied or discharged; such an order is therefore not as secure as an adoption order;

(ii)       though able to meet T’s care needs at the moment, BG is now aged 68; by the time T is aged 16 she will be aged 84; it is reasonable to suppose that over the course of the intervening years BG’s capacity to meet all of T’s day to day care needs will gradually diminish;

(iii)     there are concerns around BG’s misuse of alcohol; whilst the court has not made a finding that BG’s high Gamma GT reading in March 2014 is necessarily an accurate indicator that at that time BG was drinking alcohol at too high a level, it is an issue in respect of which the court would require further investigation if placement with BG is seriously to be considered; that would lead to further delay in a case which has already taken more than a year;

(iv)     BG currently has care responsibilities towards her son DG (T’s father) who suffers from an enduring psychotic illness; his dependency on BG is clear and may give rise to difficulties for her in prioritising the needs of T at times when DG is unwell;

(v)       there are concerns about the risks of the mother disrupting a placement with BG; although the mother has engaged with therapy for the last year and appears committed to continuing with it, future lapses are an acknowledged part of the recovery process; a lapse could result in deterioration in mother’s behaviour and in the nature of her engagement with the paternal family; the mother’s acceptance that placement with BG is preferable to placement for adoption is very recent.

Long-term foster care

132. Foster care would have some advantages for T. In particular,

(i)         it would mean that T would, in law, remain a part of his biological family;

(ii)       it would enable T to continue to have contact with his birth family;

133. There are also some acknowledged disadvantages to long-term foster care.

(i)         it is inherently insecure; whilst T 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 do so; the vicissitudes of life and their impact on the foster family could at any moment lead that family to the conclusion that they are no longer able to care for T; the longer the period for which foster care is required, the more significant that risk becomes; T is aged 13 months;. he would need a foster placement for almost 17 years;

(ii)       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; furthermore, the longer the child’s time in care the greater the likelihood that she will have to engage with a succession of social workers and constantly have to re-tell her life story;

(iii)     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 beyond that date; a fostered child does not necessarily gain a ‘forever family’.

Adoption

134. For a child of T’s age, 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, both in law and in fact, a ‘forever family’ in that adoption endures for life.

135. There are negative aspects to adoption, not least the fact that adoption severs the legal family ties between the child and his birth family thus, potentially, giving rise to identity issues in later life.

Conclusion

136. Comparing those four possible outcomes side by side it can be clearly seen that placement with the mother is not a viable outcome. At T’s age I also accept that placement in foster care would not be in his best interests. The realistic alternatives are placement with BG under a special guardianship order or placement for adoption.

137. It is now settled law that an adoption order should not be made unless T’s welfare needs are such that nothing but adoption will do. The very fact that special guardianship is a realistic alternative (and again I bear in mind that in 2013 special guardianship was being proposed by the local authority) tends to suggest that in this case it would be difficult to contend that nothing but adoption will do.

138. Although in his written report Mr Eyles did not come down for or against placement with BG he made it plain in his oral evidence that he regarded the alcohol issue as a ‘deal breaker’. So do I. Family support can, and in my judgment would, be available to BG in the event that advancing years, a mental health crisis for the father or recurrence of previous bad behaviour by the mother were to lead to her needing support. In terms of the concerns about placement with BG it is the risk of inappropriate use of alcohol that could not be rescued by family support. I need to be satisfied by appropriate tests and expert opinion that BG is not misusing alcohol. If evidence can be made available to satisfy me on that issue then I conclude that T’s welfare interests would be best served by placement with BG under a special guardianship order.

139. If such additional evidence gives rise to a finding that on the balance of probability BG is misusing alcohol then I am satisfied that placement of T in her care would not be appropriate. In those circumstances I would unhesitatingly conclude that T’s welfare needs are such nothing but adoption would do.

140. During the course of this hearing there has been some discussion about the possibility of placement with BG being a holding position until mother completes her therapy at which point there may be either a transfer of T’s care to the mother or a shared care arrangement. I make it clear that special guardianship is not intended as a temporary arrangement but as a permanent arrangement. I accept that if all goes well with the mother’s therapy a gradual increase in the frequency and duration of contact is likely to be appropriate. There is, though, no expectation or intention that this should inevitably lead to a shared care arrangement, less still to a transfer of care to the mother..

141. I shall adjourn for four weeks to enable that additional evidence to be obtained. I will hear submissions from the local authority on the time it is likely to take to prepare a special guardianship assessment report and a special guardian support plan. It is my hope that that, too, can be achieved within four weeks. I endorse the recommendations made by Dr Gillett in her supplemental report for the preparation of a written agreement and a contact development plan. Work on the preparation of all of these documents should commence immediately and should not await the outcome of the additional expert evidence. In the interim, and in anticipation of possible placement with BG, there should be a modest increase in her contact with T, at least to the extent of increasing Tuesday contact from one hour to three hours.

142. Finally, there should also be prepared a family support plan outlining the support which JM, PG and RD will provide for the BG both in normal times (for example, having T to stay with them overnight from time to time) and in abnormal times (for example, when a mental health crisis arises for the father). Work on the preparation of that support plan should be begun immediately. As BG is not legally represented I shall direct that the father’s solicitor shall take the lead in drafting that document.