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Cite as: [2014] EWFC B124
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Case No. DJ13C008260
IN THE PRESTON COUNTY COURT
Sessions House
Lancaster Road
Preston
PR1 2PD
Monday, 16th June, 2014
Before:
HER HONOUR JUDGE SINGLETON QC
In the matter of:
Re: W (A Child)
______________________
Counsel for the Local Authority: MISS MAQSOOD
Solicitor for the Mother: MR NIMMO
Counsel for the Father: MISS PROBERT
Counsel for the Guardian: MR STEWARD
______________________
JUDGMENT APPROVED BY THE COURT
Transcribed from the Official Tape Recording by
Apple Transcription Limited
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Number of Folios: 159
Number of Words: 11,445
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of the family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
JUDGMENT
1. THE JUDGE: I am concerned with the welfare of LK born on 18th November 2013 who is now 7 months of age. The application in respect of him has been brought by Blackpool Borough Council who are represented by Miss Maqsood of counsel, and it is for a care order. The care order that they ask me to approve in respect of that is a plan for adoption and, therefore, they have also completed the process as an adoption agency and make an application for a placement order. LK’s mother is CP. She lacks litigation capacity and is, therefore, represented by the Official Solicitor who instructed Miss Hargreaves, a local solicitor, to act for CP. Mr. Nimmo attends today for her. LK’s father is JW. He has been represented by Miss Probert of counsel during the proceedings. LK himself is being represented by Mr Steward of counsel, instructed by his children’s guardian, Mrs Kath Webster.
2. So far as the positions of the parties are concerned, I have outlined the position of Blackpool Borough Council which is to seek a care order and a placement order for LK. CP herself would vehemently oppose that as an outcome but the Official Solicitor, who acts on her behalf, takes the approach that he considers to be in her best interests and does not oppose the application for a care order. Her capacity to consent or not to adoption has been further assessed during the course of the proceedings and it is considered that mother does have the capacity to consent or not to adoption. Therefore, in relation to that application, although the Official Solicitor does not oppose the placement application, it is for me to determine, having regard for the evidence, whether or not I should dispense with the mother’s consent.
3. I should set out the Official Solicitor’s position which is found at C168 of the bundle of documents before me:
“I do not oppose a finding that the threshold criteria are met. Having considered the care plan dated 27th March 2014 I see no realistic basis on which I can oppose a care order being made.”
That is the position of the Official Solicitor for the mother.
4. So far as the father is concerned, whilst he does not oppose the concept of the threshold criteria being found to be made out, the details of the findings sought by the Local Authority were not absolutely agreed. I have taken the view that I should review the evidence that I have considered, both written and oral, and determine the key facts incorporating the threshold criteria rather than to, as is often the case, simply adopt and annex a threshold document. The father vehemently opposes the plans of the Local Authority. Unusually, considering the position of the Official Solicitor for mother, his primary position is that LK could and should, be placed with him and the mother as a couple with any deficits in their ability to care being compensated for by support and assistance from the Local Authority.
5. This is a case that was listed for three days to be heard by a recorder. During the course of last week it was transferred to me and the three days 11th, 12th and 13th June, Wednesday, Thursday and Friday of last week, were almost entirely occupied by listening to the evidence in the case. I consider that three days was an underestimate for this case. Although many of the factual issues are starkly simple there are a number of different strands and it seems to me that, in any case, where a parent is in serious contention with a Local Authority over a plan for permanence outside a birth family it is very difficult to get through that case in simply three days.
6. This judgment is therefore delivered on the fourth day, and in reality it is all but an ex tempore judgment and I do hope therefore that its structure is obvious to the parties.
7. So far as both threshold facts and other facts in issue are concerned as I have explained I propose to go through the relevant evidence that I have read and heard and make and necessary findings as I do so. I therefore direct myself first as to the fact-finding law that I have applied. The Local Authority, of course, brings the case and it is for the Local Authority to prove the case and the existence of the threshold conditions. The standard of proof is the ordinary civil standard and that is the balance of probabilities. I take that, of course, most recently from Re: B (Children) [2008] 2 FLR 14 which also states:
“Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts”.
And:
“There is no heightened standard and no legal rule that the more serious the allegation the more cogent the evidence needed to prove it”.
I also remind myself, as I was asked to by Miss Probert in her helpful submissions, in a quasi Lucas jury direction, that I cannot assume that the telling of lies permits me to infer that the liar in any case is responsible for particular conduct or behaviour other than in failing to tell the truth.
The Evidence
8. I start with what I know about the mother derived from both the filed statements and by the report on her prepared by Dr Christensen who assessed her cognitive capacity and her litigation capacity at an early stage in the proceedings and more recently has assessed her capacity to consent or not to adoption. The mother is just 20 years of age. She was born on 9th December 1993. Her childhood appears, according to the written evidence to have been characterised by abuse and neglect and sexual exploitation. She herself was subject to a child protection plan from 2004 when she, aged 10 years, went to live with her older sister.. That placement broke down some five or six years later amid allegations that she was involved in a sexual relationship with her sister’s partner. This was plainly, given her age and her abilities, an exploitative relationship. She then returned to live with her father who is Mr GP. I have heard a great deal about him but no evidence from him. He is 77 years of age and it is not in dispute that he has sought to exploit the mother sexually on many occasions. Mother’s mother is KB. She is 50 years of age and, it is my understanding from the documents, she has a degree of learning difficulty and vulnerability herself.
9. The mother, as I have said, has had her cognitive ability assessed. I do not want to distress her by dwelling on the outcome of that but her cognitive ability is very low. She is considered by Dr Christensen to have a mild learning disability. She does not, in his opinion therefore, have litigation capacity and has acted through the Official Solicitor within the care proceedings. It is plain to me - and I should say the mother has not given evidence in the proceedings but has spoken from the witness box to me - that she loves LK very much indeed and desperately wants to be able to spend her life caring for him. The issue for me is whether, having regard for her disability, she could be assisted by services and help to which she would be entitled to achieve good enough care for LK. It is the conclusion of all the written evidence and those who have assessed the mother that it is very unlikely that she would be able to cope with his care. The baseline of her competence is so low that there are not services that could make up that deficit. A key issue during the proceedings has been whether there are circumstances in which the mother could live with LK with others or another caring for him and for her in parallel.
10. That is the written evidence which is borne out, indeed, by my impressions of the mother. She came over to me as childlike. She desperately loves LK. It seemed to me, from the short time she spent when she talked to me, that she is capable of being truculent to a certain degree when asked to cooperate or do something she does not want to do. That was borne out in the written documents as well. She can be, I hope to use language that she can understand, quite awkward when things are not going as she wants them to be but she desperately loves this child
11. I turn now to the next aspect of the written evidence that I have considered and those are the police records. I should say that the mother and the father have been in a relationship and were introduced, I do not think that this is a fact that is in issue, by the mother’s father when she was 17 years of age. The father was then living in the Blackpool area and had met the maternal grandfather in a public house. I am not sure which public house. The mother and the father have been together for at least two years now. During 2012 there were a number of incidents between them that necessitated the intervention of the police. The police records establish that during 2012 there were no fewer than seven occasions when the police were called to incidents between the mother and the father. Those calls were made either by the mother or the father or, on occasions, by third parties who were worried about what was going on between them.
12. They include an incident when the mother had apparently suffered injuries to her face. That occurred either on 22nd or 23rd October 2012 and led to the father being charged with an assault upon her. That charge when taken to trial did not proceed. It was not pursued by the prosecution because the mother herself withdrew from giving evidence. Miss Probert urged upon me extreme caution in considering findings as to this incident because of the nature of the documents that I have in relation to that incident. I indicated during those submissions that I could find that the mother had been assaulted by the father on the hearsay evidence before me. The father denies any such assault. Having reviewed the documents again and considered the nature of the hearsay involved, I have come to the conclusion that I must agree with the submissions of Miss Probert in relation to that incident. What I can derive from the police records is this: that certainly during 2012 the relationship between the mother and the father was volatile and marked by incidents that needed the police to become involved. I do not think I can go any further than that in the absence of primary evidence.
13. In general I have proceeded with extreme caution as to the hearsay and written evidence because the father’s approach, as I come to outline, is one of putting the Local Authority to strict proof of any allegation in respect of which there is not direct evidence. Therefore, I have scrutinised with care and limited the findings I make to those which are, it seems to me, redundant of argument made out and hence my circumspect approach to the 2012 police records.
14. I turn now to another aspect of the written evidence. It is the father’s case that he is somebody who is capable of protecting the mother and any child including, obviously, LK in this case, from sexual assault or exploitation. I have already outlined in dealing with what I have read about the mother that she has been the victim of sexual exploitation and, in particular, the victim of sexual exploitation by her own father who, it is common ground, has sought in effect to prostitute her or, to use a rather unattractive term used by the father when he gave evidence, has “rented her out” in return for being his bought drinks in the public house. Therefore her father, 77-year-old GP, is somebody from whom she needs to be protected. It is the father’s case that he has, indeed, done that.
15. The issue of the extent to which the couple have been socialising or associating with GP, the maternal grandfather, therefore, is a very important issue. It became obvious during the evidence that there would be an independent, contemporaneous record to corroborate or not the account of the social workers of an on going social relationship in the form of the signing-in sheets from the sheltered accommodation where the mother resides at [Address A] in Blackpool. The father, I think, lives in another part of Blackpool. I was therefore provided with copies of the signing in sheets redacted so that I could not see details of other people who live there. I have got those signing in sheets dated between August 2013 and June 2014. In essence, they demonstrate very frequent visits to the mother by her father and, on numbers of occasions, those visits coincide with visits by the father in this case JW. That is what the [Address A] records show.
16. I turn now to the next aspect of the written evidence I have considered. These are the records of contact which take place between LK and his mother three times a week. I have the contact notes from 25th November 2013 until 1st May 2014. I have read through those contact notes and these are the themes which appear from them: on numbers of occasions, the mother has had to be told very basic matters concerning care of LK both as to feeding him, as to safely holding him, as to how she should and should not stimulate him and as to matters of hygiene. The mother’s huge affection for LK shines through those notes but, nonetheless, she has needed, as is not surprising having regard for Dr Christensen’s evidence about her, a huge amount of prompting and supervision. Those notes demonstrate, as could be anticipated again from what I have heard and read, the mother is not always responsive to that prompting and supervision and, from time to time, becomes quite resistant to the advice and prompting. She does not have the ability to read the signs that the baby gives off as to his needs. She is easily distracted. There are from time to time recorded in those notes arguments between the mother and the father when he has sought to advise or correct her or supervise her. Those notes demonstrate to a very great extent what might happen were the father to seek to make up the deficit which is caused by the mother’s disability and from them I can draw the conclusion that he would be unlikely to succeed.
17. There are also recorded in those contact notes, on a separate topic entirely but related to the previous topic, numerous references by the mother to not only her father and having seen him but also to numbers of members of his social circle. There is a reference on one instance to a friend of his who had given her a coat. Another reference, I do not know whether it is to the same friend or another friend of GP’s, having done a tattoo or paid for a tattoo for the mother. Those are my conclusions from the contact notes.
18. I next turn to a very important aspect of the written documentation. The father as I will come to relate when dealing with his evidence, is 45 years of age born on 10th May 1969. He lives in Blackpool now but lived most of his adult life until two or three years ago in the North East. He is known to have six other children in addition to LK, from J who is now 17 years of age to C who is now, on the father’s account, 10 months of age. J who, as I have said is 17, C who is now 16 and F were, together with their half-sister S, the subject of care proceedings brought in 2009 which concluded in 2010. I have in the court bundle before me the documents filed in those proceedings. I approach those documents with some caution because, as I have related, the father’s approach to these proceedings is one of seeking to put the Local Authority to strict proof of anything which cannot be proved by primary evidence that they call. In reviewing written evidence, therefore, I restrict my findings to those matters which seem to me to be incontrovertible and redundant of argument.
19. I turn back to the details of those children. As I have said, the oldest of the children subject to the north eastern proceedings was not in fact the biological child of the father. That is S: she was born in October 1993 and so, like the mother, she is 20 years of age, not yet 21. The father told me that he had lived with her mother, BW, from S being 10 weeks of age; that is early 1994. Therefore although she is not his biological child, she is a child for whom he has had extensive parental responsibility. J, father’s oldest birth child, born in May 1997, is 17 years of age now; C born in June 1998, 16 years of age now; and F, born in April 2002 is 12 years of age now. The mother of all of those four children, as I have said, is BW. She is now 38 years of age. She herself seems to have quite a similar background to the mother in this case in that her father was a schedule 1 offender. She was the victim of various kinds of abuse herself. Her cognitive capacity was assessed within the north eastern proceedings and she was found to have a degree of learning difficulty, although she did have litigation capacity within those proceedings. It seems that BW’s mother at one point lived with one of the father’s brothers. He is Mr EW. There was therefore a relatively enmeshed family situation in the North East which can properly be described in that way, namely enmeshed.
20. This is what I gleaned from the written evidence from the north eastern proceedings. The Local Authority had been involved in the lives of the children, to whom I have just made reference, from 2007. In January 2009 C made allegations of assault against her father at school. Those allegations are denied by him and C has not given evidence before me. As I have indicated throughout the proceedings, I do not take either the allegations or indeed the fact of them into account in considering what should happen to LK. However, those allegations prompted the father and C’s mother to agree to her going into Local Authority accommodation for 24 hours. That event seems to have been the catalyst for a number of interventions in the family.
21. On 16th January 2009 the property where the children were living and where, throughout those proceedings and indeed until these proceedings, BW and the father were conceded by him to be living, were the subject of a police raid for entirely unrelated matters. It was a raid for illegal drugs; none were found. However, in the course of that raid, the police noticed the home conditions which they considered to be wholly unacceptable and the children living there were taken into police protection. They thereafter remained in care because they chose not to go home. Therefore, the Local Authority in the North East commenced care proceedings on 22nd January 2009. During the course of those proceedings, as can be imagined, numbers of assessments took place including assessment by an independent social worker, Nicholas Hashagen and I have read his report and numbers of other documents in those proceedings.
22. I have already referred to the assessments of BW and her particular history and disability which seem to me to be of significance. She is referred to in the documents as being somebody of “notable passivity”. Initially, the father and BW sought to recover the care of the children together as a couple. They separated during the autumn of 2009 and the father then sought, according to his statement within those proceedings, to resume the care of the children on his own. However the proceedings were compromised with what is referred to as an agreed threshold criteria in March 2010, with none of the children returning to the care of either of the parents. The agreed threshold criteria within those proceedings is a document to which I have had particular regard. It is a document which represents, perhaps, a typical compromise in care proceedings. There are set out in that document simply the fact of various allegations having been made. One example of that is the precipitating incident of C’s allegations against the father. There are other allegations set out in the documents, including allegations of sexual misconduct between the father and S. All of those allegations are denied by the father and I have not heard, and neither did the court in the North East hear, any primary evidence about them. It seems to me, given the gravity of those allegations and their nature, that they could not properly be the subject of any findings based upon a hearsay consideration of the written evidence. Therefore I take them as I have already indicated out of account, although it may be, if there were any other proceedings concerning this father and any other child that, at an early stage, the Local Authority concerned should consider whether they would want to bring the primary evidence in order that those allegations can be properly considered. However, for my purposes I take them out of account.
23. These are the facts that were agreed by the father from the north eastern proceedings
Paragraph 4 of the agreed threshold criteria in the Middlesbrough proceedings reads as follows:
“On many occasions the children have been out of the control of their parents [numbers of references in the bundle are then given]. There has been very little evidence of rules and boundaries within the home despite their best efforts C91”.
Paragraph 5 reads as follows:
“The parents have at times permitted other adults to stay at the home. [There are various references given.] J has said he was scared of other people who were living at the home. A formal warning of an intention to pursue an eviction notice was given by [the family’s social landlord] should the anti-social behaviours outside the home continue”.
Paragraph 7 reads as follows concerning BW
“Her learning difficulties have had a negative ability upon her ability to parent.” Paragraph 11 reads as follows,
“The parents fail to engage appropriately with professionals including the family resource team”.
Paragraph 9 reads
“On 18th October 2008 JW was involved in an incident with a boyfriend of S’s which involved a knife.”
In fact, what I was told about that incident and what appears elsewhere is that a boyfriend of S’s attended at the father’s home, himself carrying a knife. The father on his account had gone out to meet that boyfriend who was only 15 years of age wielding a rolling pin but, having seen that the boyfriend was wielding a knife, went back into the home, retrieved a bigger knife and went out and threatened the boyfriend with that knife. Those seem to me to be the now agreed facts, although in his statement the father sought to suggest that there was only ever one knife; the knife that the boyfriend had brought, and that he, the father, was caught holding it. He in the end conceded under cross examination that he did have his own bigger knife. He was convicted of an affray and, I think, possession of a knife for which he received a conditional discharge. Those are the facts upon which paragraph 9 are based.
24. So those are the facts of the north eastern proceedings which seem to me to be highly relevant to the issue I have to try as I think I have already identified, namely whether this father has the skills, ability and inclination to make up for the deficits in the mother’s capacity which are conceded by the Official Solicitor, properly conceded, by reason of her disability and history.
25. Also relevant to the north eastern history and referred to throughout in the proceedings, and I have in addition documentary evidence, is the fact that, shortly after the intervention of the Local Authority in those children’s lives, C, father’s second child now aged 16, made very serious allegations of rape against a SC, a friend of the family. There is no evidence the father knew that SC already had convictions for serious sexual assaults against other children but it is not in dispute that C had spent a great deal of time with the father’s and her mother’s knowledge and consent with SC at his home. She made very serious allegations which resulted in SC being prosecuted for offences of rape against her and being convicted of those offences. That was in the June of 2009 and he is now serving a ten year sentence of imprisonment. It is of importance to my considerations in this case that the father gave evidence in defence of SC at Sc’s trial. The precise circumstances of that I shall relate when I deal with the father’s evidence. I have a transcript of the evidence that he gave. In effect, he was called as a witness by the defence to establish that C, his own daughter, was a child who frequently told lies. That was the evidence that he gave to the court but plainly the jury who convicted, were sure that she was telling the truth.
26. The next topic which I deal with by way of reference and summary to the written evidence is that of E and PW. I have already referred to EW as somebody who lived with BW’s mother. He is an older brother of the father. The father is one of five brothers and sisters. EW is 48 years of age. He is married to PW and very early on in the proceedings he and PW were put forward to the Local Authority as alternative carers for LK. The key social worker in the case, RM, undertook a viability assessment of E and P W. His report of that viability assessment is dated 18th November. On the face of it, the viability was a positive viability assessment. Therefore, the Ws went forward to the next stage in the process of assessment that was necessary for them to be considered alternative carers for LK.
27. RM the key social worker, together with a member of the fostering team, attended at their address to undertake a fostering assessment of them on 14th January 2014. It had emerged, however, between the November viability assessment and the January commencement of a more comprehensive assessment that there are a number of extremely worrying facts about the children of P W. Those matters came to light, as I have said, after the viability assessment when the police disclosure about the Ws was obtained. Those facts and matters which emerged would have caused the initial viability assessment to be a negative assessment had they been known at the time. They were not disclosed indeed by Mr and Mrs W but they are facts and matters that would have entitled the Local Authority to say that it was not appropriate to go further to a more comprehensive assessment. I therefore have a viability assessment and a short statement from the fostering team dated 3rd March 2014 to say that, in the light of the facts which had emerged, they were not pursuing to completion the fostering assessment. The Local Authority wrote to Mr and Mrs W enclosing that statement explaining the Local Authority’s conclusions and recommending that, if the Ws wished to contest the Local Authority’s conclusions and pursue care of LK, they needed to take legal advice as a matter of urgency.
28. Nothing was thereafter heard from Mr and Mrs W until the eve of the proceedings before me when they made contact with the key social worker, saying that they wished to attend and to contest the conclusions that had been made about them. I was given this information on the first day of the hearing on 11th June 2014. I expected, therefore, that the Ws were imminently to make their way into court having travelled from the north east. To my surprise, I was told that they were still in the north east and either undecided or on their way. The information varied. I made it plain that I was going to start the case; it was not in LK’s interests for it to be delayed and that if they wished to come along and pursue their case, they needed to do so the following day. Indeed, it seemed that they did travel to the north-west of England during the first day of the hearing and that they spent the evening of that first day with the parents travelling to court the following day.
29. During the short adjournment of the second day of the hearing, Mr Steward for the child together with Kath Webster his Children's Guardian, had a conversation with Mr and Mrs W. I have a note of that conversation which Mr Steward prepared. At the end of that conversation, Mr Steward recorded that they were thanked and told that the information that they had given was to be shared with the parties and that they may be required to give evidence. His note reads “That was also stressed to them at the outset of the meeting having regard to the role that they would have today and tomorrow.” Mr Steward had explained the roles of all the parties, his role and the role of the guardian. He told them that a handwritten note would be taken of the meeting. They were told that they may be spoken to by other parties and by the judge and that they may have to give evidence before the court about their position. That conversation, as I have recorded, took place at a short adjournment of the second day of the proceedings, whereupon it seems that the Ws simply left the court at Lancaster and departed, I assume, back to the North East.
30. Mr W, the father in this case, attempted to telephone his brother repeatedly during the next 24 hours but his telephone simply rang out and no reply was heard from him. No reply and no more news of the Ws was transmitted to the court for the rest of the hearing. That was a very strange interlude indeed. The upshot, however, is clear, namely that the Ws have, by walking away from the Lancaster County Court, withdrawn their opposition to the conclusions made about them by the Local Authority. Incidentally, the father made a number of allegations about EW’s consumption of alcohol, both during the 24 hours that he was in the north-west but also generally. As I understand it, and it is not in contention, a bottle of spirits had to be confiscated from Mr W by the security staff at Lancaster County Court upon his arrival. I therefore come to the conclusion, as I have already indicated, that E and P W’s case, if there ever was a case, simply does not get off the ground. Although they were told as long ago as 4th March they would need to take legal advice and seek to intervene, they did not do so. Their attempts to intervene last week came to an end by them simply walking away from the court.
31. I turn to the oral evidence that I heard during this case starting with the social work evidence. I heard evidence from KW a senior social work assistant who undertook what is described as a PAMS assessment of the mother. PAMS is a particular form of specialised assessment of those who present with learning difficulties, to enable a very detailed and careful assessment of the deficits in their skills and an assessment of how those deficits might or might not be made up for. She undertook that assessment over the first three months of these proceedings. Her conclusions in that assessment about the mother are not challenged by any party including by the father. Her task was not to assess whether the father could make up for any deficits in the mother’s skills.
32. However, where her evidence was of significance was in order to be able to confirm what the mother had told her during their sessions about the ongoing social relationship between the mother, the father and GP the maternal grandfather. In particular, what the mother had said about the extent of social contact over the Christmas period when mother told her that the mother and the father and, indeed, GP had enjoyed a meal together which the mother had cooked for them all, namely a curry. This account was greeted with some surprise, if not derision, by the father saying that the mother could not cook such a meal. However, it came out later that the mother had been proud to tell the key social worker that she indeed had learned how to cook a curry. It seems to me having regard for this evidence that it is overwhelmingly likely that the couple were having quite extensive social contact with Mr P over Christmas.
33. I heard evidence from the key social worker in the case. He was involved from the pre-birth period as the key social worker and undertook extensive assessment work of both the mother and the father, although delegating the PAMS assessment to the senior social work assistant. He struck me as an impressive and conscientious social worker who had taken a balanced approach to the necessary assessments in this case. However, he had come to the conclusion that the risks to LK of being parented by his mother and father were too great. He was challenged, properly, by Miss Probert for the father extensively and thoroughly but retained the conclusions that I have just outlined. Miss Probert asked him extensively about why he had not signposted the father to courses or resources that would enable him to make up for his skills deficit having regard for the north eastern proceedings. There remains a dispute, between the Local Authority and the father as to whose responsibility it might be to seek out such resources or courses. It did seem to me, however, that where I have somebody of normal ability who is 45 years of age and who is already the father of seven children, that it may be something of a formulaic exercise of little value to look at whether a course or resource would improve any deficits that I find are there. The father, as the key social worker told me, is somebody who engaged during the course of these proceedings with the processes by way of turning up and talking to social workers and turning up at contact visits and talking to contact workers. However, he denies any deficit and is quite resentful of any assumption that there are any deficits. It did not seem to me that signposting him to parenting courses was in the least the solution to the fundamental problems in this case. This is not so much his ability to make up for the deficit but his lack of inclination to accept and/or his insight into the fact of those deficits.
34. The social worker was also asked extensively about his assumptions or not in relation to the topic of protection from sexual risk. This, of course, is a particularly difficult topic evidentially because the sexual allegations against the father have never been tried. I do not consider it reasonable to expect a social worker from the perspective of his profession to undertake the gymnastics of discounting allegations which have been made and not proved, from those facts which are incontrovertible in looking at the topic of sexual risk. I accept the key social worker’s evidence so far as it relates to the father’s ability to engage and be insightful about parenting capacity. However, so far as his ability to protect from sexual risk it seems to me that I need to go off those facts that I can navigate my way through to as incontrovertible. It seems to me that I am able to come to proper conclusions about that topic on the written evidence that I have related and on the father’s own evidence and that I can come to a proper conclusion about whether this father has the ability to sustain a sufficiently protective, stable environment in which LK could be cared for and, indeed one in which, LK and the mother could be protected. Overall, the key social worker was steadfast in his negative conclusions about the prospects of LK being cared for in the parents’ home.
35. I turn therefore to the father’s evidence. Unfortunately, the father seemed to me to be a very poor witness. His accounts of factual matters were ever varying and he took an approach throughout his evidence of denial and minimisation of any problems. I have already related the names and dates of birth of the four children who were subject to the north eastern proceedings. In addition to those children and to LK, he has three other children: T, who was born in September 1997 to DM T, therefore, was born in the very same year as J to whom I have already referred suggesting the father had a relationship with somebody else very closely following on or during a short-lived separation from BW. Certainly, there seems to have been a number of separations and instability in that relationship. The next child is R who was born in June 2011, after the north eastern proceedings were over but only shortly before the father met the mother in this case when she was still 17. Finally, Cy who was born in Blackpool and is only 10 months of age and, therefore, it seems to me was probably conceived towards the end of that difficult period in 2012 when the police were extensively involved with this mother and father. The father’s account of his conception reflects no very great credit upon him. Having had an argument with the mother, he decided, to use his words, “to go out and get another one” and Cy was conceived, on his account, as a result of a one-night stand. I note throughout the police attendances upon the mother and father there are references to father having another girlfriend. I have no idea and can have no idea whether, in fact, the relationship with Cy’s mother was more extensive than father told me or whether there he was involved with yet another person. This history, on the most neutral interpretation of the facts, tends to demonstrate a casual attitude to his relationships with women and to the conception of children.
36. Cy’s mother, the father told me, has recently been diagnosed with terminal cancer and, frankly, his approach to the extent to which or whether he was inclined to become involved and take responsibility for Cy was one which suggested, again, a shockingly casual approach to his responsibilities in that regard. I have referred to the father as a poor witness who changed his accounts and who adopted an approach of denial and minimisation. There are several rather stark examples of that. The father’s account during these proceedings, the LK proceedings, has been that in fact he did not live at [Road B] in the North East and, therefore, should not be held responsible for any of the, what seem to have been, pretty appalling conditions in that home or the matters that were going on in that home. He maintained that account despite the fact that in all the statements prepared by him in those North Eastern proceedings [Road B] is given as his address in the formal paragraphs of those statements. Furthermore, he expressly refers to himself as living at [Road B] in those statements. In addition, when he gave evidence in SC’s criminal trial when asked to give his address he gave the [Road B] address.
37. Whilst it may very well be that the father did maintain another address for some official purposes, it seems to me that it is perfectly obvious from the North Eastern evidence, and an incontrovertible fact, that he was living at [Road B] and that he was living there with a partner with a learning disability of remarkable passivity and that he must and should share responsibility for the conditions of extreme neglect in that home. Notwithstanding that, he showed a persistent desire to avoid any such concession and insisted on ignorance of some of the more difficult aspects of those conditions. In particular, he denied any knowledge of the fact that his daughter and step-daughter were using a bucket in their bedrooms to urinate in. He, to use a vernacular expression, “ducked and dived” over his knowledge of that bucket saying that he did not know that there was one there, he was not living there, then saying he was aware of there being a bucket but it was for taking to the beach to play in the sand. When the police went in to that home, that bucket was plainly being used for the purpose to which I have already referred. I give that as one of the starker examples of denial and minimisation.
38. In addition, another particularly stark example is his explanation for going to give evidence in the defence of SC at SC’s trial for the rape of this father’s own daughter and why he would give evidence that she was a persistent liar. His remarkable account, which I reject, was that he had been written to by solicitors, who did not identify themselves as defence solicitors and simply required to go to court to say what she, C, was like. That he went into the courtroom and gave evidence without having, he said, given anybody a statement first or being aware of who was who. He denied that anybody had introduced themselves to him as the solicitor for SC. He said that he was simply called into court to give the evidence and he had no idea that the first person who asked him questions was the defence barrister or that he had any appreciation that he was giving evidence for the defence. That seems to me to be a wholly ridiculous account which I reject and, again, is a stark example of denial and minimisation.
39. I also reject his accounts of the extent to which there is socialisation between him and GP, and the mother and GP’s associates. It seems to me that I am entitled to do so on the basis of what the mother has said in unguarded moments to workers and on the basis of the signing in records at her residence. I have not referred to the fact that EW, when speaking to Mr Steward (counsel for the child), talked about having met up with the father and the mother in a public house in Blackpool overnight between the first and second day of the hearing last week. Indeed, it is not in dispute that they did all meet up in a public house. I have not gone into the extent to which there was drinking or not. I will deal with alcohol and the allegation about that shortly. However, EW’s account was that GP, the mother’s father, was present at that public house meeting last week and, indeed, Mr Steward’s note clarifies that Mr and Mrs EW were quite clear that they believed the person present during the course of the evening was the mother’s father. I cannot think why they would have said that if they did not believe it to be the truth. Father’s account was that there was somebody called G there but it was not GP and that they may have got the wrong end of the stick when he said that the G who was there could have been the mother’s father, because he and the mother were the same height as each other. It seems to me that I am entitled to find on this evidence on the balance of probabilities that GP was at the pub with the mother and the father last Wednesday evening and to reject the father’s account and I do so.
40. The last witness from whom I heard oral evidence was the children’s guardian. She supports the Local Authority case. She did not consider that the father would be able to make up the skills deficit sadly caused by the mother’s disability and her background and supports the Local Authority in the outcome for which they contend in these proceedings.
41. I have made a number of findings as I have conducted that review of the evidence that I have read and heard and taken into consideration. It seems to me that I can keep the findings that I now make, the necessary findings, both as to threshold and the father’s capacity to care in summary form. I have been acutely aware throughout these proceedings, both because of the pressure of time and because of the numbers of strands of facts and issues in, that it is very unlikely that anything I am saying now is going to be properly and fully understood by the mother. Indeed, I did not have the opportunity to follow Dr Christensen’s advice and take ten minute breaks every hour so as to enable her to participate better in the proceedings
42. These are the facts that I find which seem to me to constitute the relevant facts both for the threshold criteria and as to the father’s capacity. The mother has a learning disability and has suffered a childhood during which she has suffered abuse, neglect and sexual exploitation. She has had no opportunity to learn how to be a competent or good parent and, sadly, she now does not have either the ability or the temperament that would enable her to gain those skills, whatever assistance was put in to her to learn those skills. I, consider that it may be, were she living in a nurturing family environment with people who were able to both meet her needs and the needs of any child, that she might be able to live a life jointly with her child. However, short of that I cannot see how that is possible and, indeed, can see exactly why the Official Solicitor came to the conclusion that he did in her best interests on the evidence in this case.
43. That leaves open the question, as I have already relayed, whether the father could make up the deficit that I have identified. These are the neutral facts so far as the father is concerned. He has six other children by four different mothers none of whom live with him. Three of those children together with a step-child have been removed from his care in proceedings in which, there was conceded by him and the evidence establishes, severe deficits in the care that those children were receiving. The father has shown very little insight into the extent of that deficit or inclination to demonstrate any ability or willingness to undertake the necessary processes that would enable him to change. It seems to me that the deficits that can be identified in his ability as a parent are longstanding and entrenched. Taken in conjunction with his inclination to minimise and deny, I cannot properly predict that he could have the capacity to care for LK either alone or in partnership with the mother, just as he did not have the capacity or ability or inclination to make up for the deficits in the care of the North Eastern children. There are remarkable similarities it seems to me between the situation there and the situation now several years down the line.
44. Neither the father nor the mother have the ability to protect a child from sexual exploitation. The father has historically signally failed to protect C, his daughter, from sexual assault by SC. His approach to that subject demonstrates that what happened has not caused him to change his attitude to what went on over those years which is simply of minimisation and denial. His ongoing relationship with GP demonstrates a casual approach to the issue of sexual exploitation and boundaries. I can have no confidence that any child in the care of the father and the mother would be properly protected from those whose sexual boundaries are skewed and inclined to sexual exploitation of children.
45. Therefore, it seems to me that the threshold criteria are made out and, sadly, I have to conclude that neither the mother nor the father has the capacity safely to care for LK. I have commented throughout on the mother’s obvious love and affection for LK and I have not done so so far as the father is concerned. That is to do him an injustice because despite my findings as to his inability to be a safe and competent parent it is obvious, from the contact notes and from everything that he said, that he also desperately loves LK and wanted to care for him. Hence he has, through Miss Probert, contested the Local Authority’s case vigorously and adamantly and that is a reflection of his affection. I note for anyone reading a transcript of this judgment that I had intended to say this in any event although the father has just left the court distressed by my earlier findings and has not heard me say it. It is properly included in the judgment and will be relayed to him by his counsel.
At this point there was a short adjournment whilst father’s counsel left the Court room and ascertained that the parents had left the Court building.
46. I have already delivered a summary of the law that I applied to fact-finding. This is my summary of the law relating to adoption. I start with the Supreme Court decision of Re: B (A Child) [2013] UKSC 33. That was a case that was principally concerned with the proportionality of outcome having regard to the nature of threshold criteria. However, there are numbers of paragraphs in that decision which demonstrate their lordships’ insistence upon the stringency of the test for adoption as an outcome in care proceedings where that outcome is contested. There are at least twelve very important paragraphs in that decision emphasising that principle but I do not propose to read all twelve into this judgment, simply two which I consider to be extremely powerful.
The first is paragraph 198 taken from the decision of Baroness Hale. She said this:
47. The second paragraph which I also read in to this decision and which is also particularly powerful is one of Lord Neuberger, at paragraph 82, setting out a European jurisprudence perspective upon the issue of contested adoptions. He said this:
48. That case was followed by the case of Re: B-S (Children) [2013] EWCA Civ 1146. That was a decision of the Court of Appeal in an appeal against a refusal of leave to oppose the making of an adoption order under section 47(5) of the Adoption of Children Act 2002, a decision of Mrs Justice Parker. In fact, the appeal was dismissed but the court took the opportunity of reinforcing the Re: B message. At paragraph 22 the President of the Family Division, Sir James Munby, said this:
He goes on to say this at paragraph 23:
"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary."”
49. Sir James Munby then went on to cite, with approval a decision of Lord Justice McFarlane in Re: G (A Child) [2013] EWCA Civ 965 in which he said this. (This is paragraph 53 of that decision) :-
“A process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case”.
50. I remind myself that the best place for any child, including this child, is in that child’s own birth family and I have addressed myself principally, albeit that the threshold were put in issue in this case, to looking at how it could be that LK could be cared for in his family. In reality, after the departure from the case of Mr and Mrs EW, the only option for LK in his family would be with his mother and father with the Local Authority attempting to make up any deficits. It seems to me, for the reasons I have gone through in going through the evidence that I have heard, that such a course would be wholly inconsistent with his welfare. Therefore, he cannot be cared for safely in his own family. That is a very sad outcome indeed. It is not a question of formulaic window-dressing but rather considering the very particular and powerful considerations in this case which I am not going to repeat.
51. Therefore, it seems to me, that I must approve the Local Authority’s care plan. I have done so having paid due regard to all the submissions that the parties have made and, though I was greatly helped by the advocates in this case, I was particularly assisted by the father’s advocate who has steered a difficult course having instructions, as I have already outlined borne of the father’s desperate desire to care for his child, to contest all matters as thoroughly as possible and she has done that. However, despite the arguments she has advanced it does not seem to me that there is a route whereby this child can have a joint life with his mother safely with his father making up the deficit.
52. Therefore, his future must lie out of the care of his parents. Nobody had thought to argue in submissions before me that if a child of LK’s age cannot be cared for in his own family that there is any real option for him other than placement in a new family, in an adoptive family. To the extent there is any need for any law in relation to that aspect of the case I simply refer to the dicta of Mrs Justice Pauffley in LRP [2013] EWHC 3974 (Fam,) in which she said this at paragraph 39:
“Long term foster care is an extraordinarily precarious legal framework for any child, particularly one a young as LRP [She was dealing in that case with a child who was weeks old but LK, of course, in this case is still in effect an infant]. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.”
It therefore seems to me that if LK cannot be cared for by his mother and father or by any other member of his extended family and has to be cared for outside that family, the best option for him given his age would be to be placed for adoption. Therefore, I have to consider his parents’ unwillingness to consent to such a course. It seems to me, for all the reasons that I have outlined in this judgment, that his welfare demands that I do dispense with their consent to that and I make the placement order sought by the Local Authority.
At this point the Judge invited the advocates to inform her if she had failed to deal with any aspect of the case. Father’s counsel requested that she deal with his case that he wished to be considered as a sole carer if he was not thought able to parent safely and she concluded the judgment as follows:-
I do not consider the father alone would be a suitable carer for LK, he having long-standing deficits in his own parenting and not having demonstrated that he is somebody that could protect any child from risk of sexual assault or exploitation.