England and Wales Family Court Decisions (other Judges)

 

 

 

Case No:MH13CH00428

 

IN THE MANCHESTER COUNTY COURT

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF  FP (A CHILD)

 

Date: 28 March 2014

 

Before:

 

His Honour Judge Hernandez

 

 

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Between:

 

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Ms Birtles Counsel for the Local Authority

Ms Akther Counsel for the Mother

Ms Morton Counsel for the Guardian

 

Hearing dates: 12, 13 14 28 March 2014

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JUDGMENT

Introduction

1. X Council have issued an application dated 24 June 2013 in which they seek a care order in respect of a boy FP born on 19 June 2013. In addition they have issued an application seeking a placement order dated 6 December 2013.
2. FP’s mother is NS. His father is KJ. He does not have parental responsibility. The father has been notified of these proceedings. He has not appeared at this hearing nor is he represented. He has played no part in these proceedings.
3. FP’s guardian is Mr Bernard Toland.
4. FP has two maternal half siblings CB born on 8 October 1995 and MC born on 23 April 1998. He has the following full siblings Y born on 28 April 2011 and A born on 19 August 2012. He has the following paternal half siblings  KJ, KiJ, KK, KM, TH.
5.  Both Y and A have been the subject of care and placement proceedings. Final care and placement orders were made in respect of Y on 25 May 2012 and in respect of A on 1 May 2013. I heard both applications and the judgments are contained in two core bundles. They have both been adopted and have been placed together. The mother appealed both decisions to the Court of Appeal.  In separate judgments, the Court of Appeal dismissed both appeals thereby upholding the decisions of this court. The most recent decision dated 23 October 2013 is contained in the trial bundle.
6. The local authority’s care plan for FP is adoption outside the family. They ask that I make an order dispensing with the consent of the mother as she is the only person who has parental responsibility. It is unlikely that he can be placed with his full siblings but his foster carer with whom he has lived since he was a few days old is currently being assessed as an adoptive parent for him. It is proposed that contact following the making of an adoption order would be indirect contact twice annually.
7. The mother is currently in prison. She was sentenced to a discretionary life sentence on 22 June 1998 for an offence of arson. However she has been recalled to prison under the terms of her licence in October 2013 because it has been alleged that she had breached the terms of her Parole Licence. It is alleged that there was an outburst at the conclusion of the recent Court of Appeal hearing and that she behaved in a threatening manner towards the social worker and legal representatives. There is to be a hearing by the Parole Board of her application for release because it is her case that there was no lawful justification for her recall to prison. This matter was due to be heard by the Parole Board on 20 March 2014 but I have been informed that the hearing had to be adjourned to 25 April 2014.
8. The mother opposes the local authority application for a care order and the plan for adoption and also the application for a placement order. She applies for the immediate return of FP to her care and for an assessment of her by an independent social worker whilst she undergoes therapy. In the alternative she applies for an assessment by an independent social worker whilst her therapy is undertaken and for FP to remain in his current placement pending a further assessment.  The mother made an application at the commencement of this hearing for this hearing to be adjourned until a date after the Parole Board hearing.
9. The guardian is of the view that the mother is not in a position now or in the foreseeable future to be able to care for FP and therefore he supports the local authority’s applications and care plan.
10. The local authority has to satisfy the court that the threshold pursuant to s 31 of the Children Act 1989 has been satisfied before the court can consider at the welfare stage and applying the welfare check list  set out in s 1(3) of the 1989 Act, what if any orders are necessary. The placement application is governed by the Adoption and Children Act 2002. I will return to these matters in more detail later in this judgment.
11. The facts upon which the local authority relies upon to establish the threshold is set out in the document filed in the trial bundle. The original document has been amended during the course of this hearing. They rely on the history of the previous proceedings in part as grounds for establishing the threshold. It is of course the case that I have found the threshold has been satisfied in respect of proceedings involving the two full siblings and two divisions of the Court of Appeal have upheld those findings. Nevertheless it is necessary that the grounds for establishing the threshold are satisfied in respect of the application relating to FP.

The Background

12. The background to this case has been summarised in the two previous judgments of this court and again in the recent Court of Appeal judgment of McFarlane LJ. For convenience I repeat my summary of the background as set out in my judgment in A’s proceedings.

“12. The mother’s family has had a history of involvement with social services over many years.  The mother was the subject of wardship proceedings because of the care provided for her and her sister, R, by her own mother, the maternal grandmother.

13 The mother had a history of poor school attendance.  It is reported that her behaviour at times was volatile, disruptive and on occasions there were violent outbursts which disrupted her school placements. 

14 The mother was convicted at the age of 16 of arson, being reckless whether life was endangered. She was sentenced to life imprisonment with a requirement that she should serve 18 months before being considered eligible for parole.  She was released in 2005 but recalled on her licence.  She was not then released until 2009.  She remains at risk of being recalled to prison should she breach the terms of her licence.

15….

16 There cannot be an understanding of the significance of the issues in this case without an understanding of the reasons for the court’s decision in the proceedings concerning Y.  That judgment can be found in the trial bundle and should be read in its entirety. In that judgment I set out in summary form the salient features taken from the chronology.  I repeat that summary here.  In doing so I set out the events with the minimum of comment as I am aware that the mother has challenged the evidence or the interpretation of some of those historical events.  It has not been possible, nor in my judgment necessary, for me to form a view of the matters which have concerned her.  I quote from paragraphs 16 to 31 of that judgment:

16.             “[T]he mother is 31.  She has had a distressing childhood.  She has been known to the Social Services since her childhood.  In 1989, the Local Authority issued wardship proceedings in respect of the mother and her sister, R.  The matter came before Mr Justice Eastham, Mr Justice Ewbank and Mrs Justice Bracewell.  They found that the mother was suffering from a severe mixed conduct and emotional disorder with school refusal.  Her behaviour was unpredictable and difficult.  Her sister was found to suffer from a hysterical gait syndrome. 

17.             In 1991, Mrs Justice Bracewell made an order allowing the mother and her sister to return home to the maternal grandmother.  The Local Authority was criticised by the judge for some of the decisions that had been made within those proceedings, which it is unnecessary for me to rehearse. 

18.             In 1992, following the breakdown of her placement with the maternal grandmother, the mother was placed with foster carers.  She continued to display difficult and challenging behaviour throughout the 1990s. 

19. In 1995, when she was 15, she became involved in care proceedings.  She was pregnant with her first child, [CB].  The social workers conducted a pre-birth assessment.  The issues under consideration involved an assessment of her parenting ability and her criminal history.  She had convictions for arson, criminal damage and wounding and had generally displayed aggressive behaviour. 

20.              On 16^th November 1995, the mother assaulted a team manager in the Social Services’ offices with a metal bat.  The previous day she had climbed onto a roof and thrown slates at a window causing it to break.  On both occasions [CB] was with her. 

21. There was then an attempt to place her in a mother and baby unit which was unsuccessful because she was excluded following a violent argument with another resident.

22.             On 21^st October 1997, the mother committed arson at the offices of Social Services.  Having entered the offices, she poured petrol over the desks and set fire to them.  There were 40 members of staff and young children present on the premises.  Fortunately, no-one was hurt.  She was convicted of arson, being reckless whether life would be endangered. 

23. On 22^nd June 1998, she was sentenced to a discretionary life sentence with a requirement that she should serve 18 months before she could be considered for release on parole.  The matter went before the Court of Appeal.  The Court of Appeal upheld the sentence.  At the time of her sentence she was pregnant with her second child, [MC].

24.             On 14^th December 1998, [CB] and [MC] were made the subject of care orders pursuant to an order of His Honour Judge Bloom QC.  [CB] was placed for adoption and subsequently adopted by order of Mrs Justice Hogg.  [MC] was placed with her paternal grandparents. 

25. The mother was released on licence in January 2005 but was soon thereafter recalled to prison where she remained until 4^th March 2009 when she was released. 

26. Mr Recorder Price QC, who sentenced the mother, found that she posed a risk to social workers.  Her parole board found that her disciplinary record was a matter of concern.  She of course remains on licence and could be recalled to prison at any time. 

27. The Local Authority commenced proceedings when it discovered that she was pregnant with Y.  The police had alerted the Local Authority to the fact that she had an association with the father, who it was considered posed a risk to women because of his history of domestic violence inflicted on his many partners. 

28. The father is 25.  He has a number of children with different partners.  Two of his other children have been removed from his care in December 2011 by the Local Authority successfully applying for an interim care order. 

29. Although the pre-birth assessment concluded that Y should be removed at birth the Guardian did not agree.  Whilst she took the view that the grounds for the making of an interim care order may have been established, she did not consider it necessary to remove the baby from his mother at that time.  That was also the judgment of the court when the Local Authority asked it to consider the Local Authority’s application for an Emergency Protection Order and then an Interim Care Order. The Local Authority was content to allow Y to remain with his mother pending assessments provided the parents adhered to a working agreement and to undertakings given to the court that they would not have any contact with each other pending the completion of the assessments.  This was because the evidence suggested that when the parents were together, violent arguments occurred thereby putting Y at risk of harm. 

30. The position changed following an incident which occurred on the bank holiday weekend of 30^th to 31^st of July 2011.  The mother was seen by the Guardian with a black eye.  The mother said that the father had caused it.  The Local Authority brought the matter back before the court and renewed their application for an interim care order with a care plan for removal of the baby. 

31. On 4^th August 2011, His Honour Judge Appleby heard the application and granted the Local Authority’s application”.

17 I made findings that neither parent could safely care for Y. I duly made the care and placement orders requested. 

18 On the basis of the findings that I made the Local Authority, supported by the Guardian in these proceedings, sought to have this case placed on the “fast track”, in other words, the Local Authority indicated that it did not seek to further assess the mother, nor did it consider that any further assessments were required.  That would have been the view of the court also but for the fact that the mother made an application for an assessment by a psychiatrist and subsequently for a further assessment by an independent social worker.  I granted her applications because firstly she had, through her GP, tried to obtain the therapy recommended by Dr Fatimilehin, the psychologist who had assessed her in the previous proceedings involving Y.  The mother had been advised that because she had not been diagnosed with a psychological condition, the therapy recommended by Dr Fatimilehin could not be accessed.  It had also been conceded by Dr Fatimilehin in the previous proceedings that the therapy which she had recommended fell outside her area of expertise. 

19 On 25^th September 2012 when the proceedings were five weeks in duration the mother requested an opinion from a psychiatrist in order to determine whether or not she had a recognised psychological disorder and if so what would be the recommended treatment and timescales.  Her preferred expert was Dr Taylor.  He had undertaken an assessment of her in 2005 when she had applied for release before the parole board.  His report should have been filed by 6^th November 2012.  For reasons which were not adequately explained his report was not filed until 3^rd January 2013.  This has caused considerable delay to these proceedings. 

20 In Dr Taylor’s opinion the mother was not suffering from a recognised personality disorder.  It was his firm opinion that the therapy recommended by Dr Fatimilehin was neither necessary nor appropriate.  However he suggested that she might benefit from some limited anger management treatment.  He suggested that her parenting should be assessed by a parenting assessment in a residential placement or in the community.  The two experts did agree that the mother suffered from paranoid personality traits and had difficulty working with Children’s Services. 

21 At the adjourned Case Management Conference hearing on 14^th January 2013 the Guardian conceded that because of the conclusions of Dr Taylor’s report the case was now not suitable to be “fast tracked”.  It was ordered by the court that the two experts should meet to identify their areas of agreement and disagreement. 

22 Because the mother had asserted that there had been sufficient change in her personal circumstances to warrant an assessment of her parenting ability. On 20^th February 2013, the court approved the instruction of Ms Tina Pugh, an independent social worker, whose report was to be filed on 5^th April2013…..”

13. The mother at a late stage with the these proceedings concerning FP has confirmed that  she is again pregnant. The baby is due in the summer of 2014.

The History of these proceedings

14. Y was born on 28 April 2011.  The final hearing in his proceedings concluded on 25 May 2012. During those proceedings it was known that the mother was pregnant with A. A was born on 19 August 2012. The final hearing in her case concluded on 1 May 2013. During those proceedings it was known that the mother was again pregnant. FP was born on 19 June 2013, approximately 8 weeks after the proceedings with A had concluded. The local authority was granted an EPO on 20 June 2013. The care application was made on 24 June 2013.
15. Within the earlier proceedings concerning Y the mother was assessed by an independent social worker Ms Cadwaladr and a psychologist Dr Fatimilehin. In the proceedings concerning A the mother was assessed by an independent social worker and psychiatrist of her choice Ms Pugh and Dr Taylor respectively.
16. At the outset of these proceedings the position of the local authority was that they were not going to assess the mother further because there had been  recent assessments undertaken in A’s proceedings and because there had been no significant change in the mother’s circumstances. The guardian agreed with the local authority. The mother’s application for an assessment by an independent social worker was not granted by the court. She renewed her application on 12 December 2013. The court adjourned a decision on that issue until the final hearing when full consideration could be given to the merits of such an application. The matter was listed for an IRH/ final hearing on 30 September 2013.
17. However,  that hearing was adjourned because the mother had been given leave to appeal the decision relating to A and in relation to her application for contact to Y who had at the time of her application to the court been placed for adoption. In the circumstances it was appropriate to adjourn the proposed final haring of FP’s case until after the judgment of the Court of Appeal which was delivered on 23 October 2013.
18. The final hearing of FP’s case was fixed for 29 January 2014 but because of the non availability of the guardian it was re-listed  to commence on 12 March 2014.
19. I gave leave for the mother to serve an addendum report from Dr Taylor.  His report is dated 22 October 2013. It must be remembered that he had the opportunity to observe the outburst of the mother during the final hearing involving A. He confirmed that the mother did not have a borderline personality disorder  and that she does not suffer from a mental illness. However he said  that:

“Given the outburst at the last hearing and the evidence that she appeared to have potentially withheld information about her pregnancy and relationship I was forced to conclude that the mother’s personality traits such as mistrust of authority figures and tendency to overtly express anger etc. (short of personality disorder) identified in my report have persisted and could interfere with her ability to work with social services. Individual brief dynamic psychotherapy i.e. once a week sessions may be of benefit as a space to reflect on her current difficulties with social services. I have also recommended a further course of anger management which could be individual or group and would need say 8 sessions.  …and 6 months for the dynamic psychotherapy in the first instance. The therapy could take place in the community but I do not know what is available in Manchester. If she were in London I would recommend an assessment by the Anna Freud centre which would involve a full multi-disciplinary assessment of parenting and not just an independent social work report and could offer the individual therapy I suggested.

 “….. If she were to demonstrate outbursts of anger in front of the child, for example, in highly supervised contact sessions then the assessment may have to be abandoned.”

20. Since that report the mother has been recalled to prison. The circumstances leading up to that event have been set out in a Recall and Review Report prepared by  her probation officer Salma Ali.  It is alleged that 

“the [mother] had made repeated verbal outcries and caused numerous interruptions at an Appeal Court hearing to the extent that the Court Police had to be contacted to assist her removal from Court after repeated requests that she leave the Court were ignored.  The mother  made insulting comments to the Law Lords…….Her aggressive and abusive behaviour was further evidenced at the conclusion of the case when she cornered the social worker and counsel for the children into a doorway and made comments to the social worker and to counsel that she hoped their children, if they had any, would be raped. She is alleged to have shouted this two inches from their face. This behaviour continued when staff from Manchester Children’s Services exited the Court. She is reported to have said that she would find her two children who were subject to the Appeal hearing from their adoptive placement. This led to  Children’s Services having to issue warnings to inform all relevant parties and professionals involved in her case to take preventative measures. In addition the children’s legal department office in Manchester had to keep their office door locked in case the [mother] made good her threats of how she had acted on her grievance to staff in the past.”

The recent recall incident and index offence were considered to be a heightened risk factor “as [the mother]was now aware that she had lost her appeal and may well have acted out on her grievance knowing that she lost her right to challenge the decisions made and that the same professional organisations were the potential target for blame as the index offence.”

The Legal Framework

21. Section 31(2) of the Children Act 1989 states that a court may only make a care order or a supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm, and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to him, if the order were not made, not being what it would be reasonable to expect a parent to give him.
22. In short this means that children cannot be removed from the care of their families unless the threshold set by the Children Act 1989 has been crossed.  That obligation protects their rights under Article 6 and 8 of the European Convention on Human Rights. 
23. If the threshold has been satisfied the court has to consider at the welfare stage what, if any, orders should be made, having applied the welfare checklist as set out in section 1(3) of the 1989 Act.  In making any decision as to the welfare of the child the court’s paramount consideration will be the welfare of the child, taking into account the checklist, namely:

a)      The ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.

b)      The physical, emotional and educational needs of the child. 

c)      The likely effect on the child of any change in his circumstances.

d)     The age, sex, background and any characteristics of which the court considers relevant.

e)      Any harm which the child has suffered or is at risk of suffering.

f)       How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.   

Here, the most significant features of the checklist will be the physical, emotional and educational needs of the child, any harm the child has suffered or is at risk of suffering, and the capabilities of the parents or any other person in meeting the child’s needs.

24.  I remind myself that the child’s welfare is my paramount duty and that in general any delay in determining that issue is likely to prejudice the welfare of the child and that when considering whether to make one or more orders under the Act a court should not do so unless it considers that doing so would be better for the child than making no order at all.  Further, if I am considering a plan of adoption I should have regard to the child’s welfare throughout his life.
25. I have also had regard to the summary of the recent decisions of the Supreme Court and the Court of Appeal as set out in the Ms Morton’s written submissions on behalf of the child. In summary where the plan of the local authority is one of adoption the court must be satisfied that adoption is necessary and no other course will do.
26. The amended Schedule of Proposed Findings  sets out the facts relied upon by the local authority to satisfy the threshold required by s 31of the Children Act. I set them out below:

1 The mother has had a difficult childhood during which she was the subject of child protection procedures.

2 The mother has a number of convictions, which include 2 offences of arson. In respect of the first offence, the mother was sentenced to a conditional discharge for a period of 12 months on 18 September 1995. The second offence of arson was committed on 21 October 1997; on this date the mother attended the Moss Side office of Manchester Children’s Services together with her daughter CB in a pushchair. The mother poured petrol and set a fire. There were approximately 40 people in the building at the time. None were harmed. The mother was convicted of an offence of arson being reckless as whether life was endangered. She was sentenced on 22 June 1998 to a discretionary life sentence. The mother appealed the sentence to the Court of Appeal. The Appeal was dismissed.

3 The effect of the mother’s second conviction and life sentence is that she remains on the life sentence and therefore at risk of recall to custody.

4 The mother has 5 children. All have been the subject of child protection procedures. Her daughter CB, born on 8 October 1995 was adopted outside the birth family. Her daughter MC was born on 23 April 1998 was placed permanently with her paternal grandmother. Her son Y born 28 April 2011 was made the subject of a care order and a placement order on 25 may 2012. A was born on 19 August 2012 was made the subject of care and placement orders on 1 May 2013.

5 FP was born on 19 June 2012 some  8 weeks after the conclusion of the proceedings in respect of A in the County Court.

6 The court found in the proceedings regarding A that “the mother’s explosive and unpredictable responses when her views in relation to child care in particular , are challenged would place any child at risk of emotional harm. This has to be addressed before she could be considered as an appropriate carer for any child. The mother is unable to control her emotional outbursts. This is obvious when she is working with the local authority but it is not confined to the local authority. There have been issues with her GP and Surestart.” The court further found that “this mother’s reactions go beyond what which is tolerable or acceptable”, (judgment of HHJ Hernandez date 1 May 2013 paragraph 74Cto E.

7 Dr Richard Taylor, consultant Forensic psychiatrist, assessed the mother in the proceedings concerning A and gave evidence  on 11 April 2013. Dr Taylor witnessed the mother becoming distressed and agitated during his oral evidence. He also received confirmation at the hearing that the mother was pregnant. The court recorded that Dr Taylor “concluded having witnessed her outbursts that she needed some psychodynamic therapy over a period of about six months and potentially longer.” Dr Taylor further accepted that the mother’s pregnancy “was a significant change of her circumstances”, (judgment of HHJ Hernandez dated 1 May 2013 paragraph 35D to F.

8 The judgment and  orders  in respect of A were the subject of an appeal by the mother to the Court of Appeal. Permission to appeal was granted by Gloster LJ.

9 The appeal was considered and determined by Lords Justice Laws, McFarlane and Pitchford on 23 October 2013 and was dismissed.

10 The Court of Appeal determined that (a) a higher level of intervention than a simple parenting assessment in the community or a residential assessment would be required to assess the mother’s capacity to parent safely. At paragraph 38 of the judgment of the Court of Appeal, McFarlane LJ stated that he considered that the intervention recommended by Dr Taylor  for the purpose of assessment was a multi disciplinary assessment involving a team, including social workers and childcare specialists but also including psychologists and/or psychiatrists; (b) such an assessment could only be undertaken under the umbrella of an interim care order or a care order and this would afford the mother a “regular opportunity…to react adversely to the local authority social workers who would be required to work with her” paragraph 42,, judgment of the Court of Appeal.

11 In relation to FP the risks identified in relation to A remained at the relevant date. The mother has been unable to demonstrate change or progress in the management of her emotions or to demonstrate an  open and cooperative working relationship with the local authority.

12….

13 The mother does not accept the need to effect change or to engage in therapy. She struggles to appropriately manage her emotions and continues to engage in behaviour which other’s find threatening and intimidating. She remains prone to outbursts of extreme emotion.

14 As a result FP is at risk of (a) impairment of his physical, social, intellectual and behavioural development; (b) emotional harm; (c) neglect.

27. The mother does not accept that the threshold has been satisfied.  I acknowledge that she was responding to a draft which has been amended during these proceedings.  However it is appropriate that I set out briefly her response to the threshold document. She asserts that:
1. there has been an over reliance on historic information which at times simply has been inaccurate.
2. The she does not accept that she had a record of poor school attendance. She asserts that her mother removed her from school because she was being bullied. She denies that she was verbally or physically abusive to staff.  She denies identifying with her mother’s world. She alleges that she was the victim of racial abuse at school.
3. The index offence of reckless arson is not denied but she denies pouring petrol over desks.
4. She does not accept that her liberty under her parole licence is as fragile as the local authority asserted because the hurdle for recall is high (i.e. only if she is deemed to pose a risk to life or limb). She alleges that the local authority and probation have sought to utilise the Licence conditions to create a situation where she could be recalled to prison.
5. She accepts KJ was a poor choice of partner. She accepts that she had suffered domestic violence by KJ.
6. She does not accept the findings made in the proceedings involving Y. She does not accept that she suffers from a sever conduct behaviour disorder especially in the light of the evidence available at the relevant date for these proceedings.
7. She does not accept much of the opinions and assessment of Dr Fatimilehin who conceded that she did not have the expertise to diagnose a personality disorder. Dr Taylor’s report which is available at the relevant date of these proceedings disagrees with Dr Fatimilehin’s report.
8. The mother does not accept many of the conclusions in the assessment of Ms Cadwaladr; in particular that she would need 18 months of therapy and that she is unwilling to attend therapy. The mother had commenced therapy at the relevant date of these proceedings.
9. The mother does not accept that any of the findings (which are largely disputed) in respect of Y are still to be addressed in relation to F. she has sought to undertake therapy and has developed insight. She has worked with professionals. She has separated from KJ. She is able to undertake and complete the therapy within F’s timescales.
28. Although the local authority sets out the facts in the Schedule upon which it relies to establish that the  threshold justifying its intervention in the private life of this family has been satisfied it is for the court to determine whether the threshold is satisfied. Re W(A Child) [2013] EWCA Civ 1227 per Ryder LJ: “[T]he judge has to decide whether sufficient facts exist to satisfy the threshold (jurisdictional facts) whether or not the local authority or any other party agree. Furthermore the basis upon which the threshold is satisfied is a matter for the judge, not the parties. It is a question of jurisdiction not just the facts between the parties…”
29. I find as a fact that there were the statutory grounds for the local authority issuing proceedings at the commencement of these proceedings as required by s 31 of the 1989 Act as there were grounds for believing that the child FP was at risk of suffering significant harm. The mother has been known to social services since her childhood.  Her four children have been removed from her care because it was found that there was a risk of harm if they remained her care.  I am satisfied that there would be a risk of significant harm to FP in the form of neglect, impairment of a child’s physical, intellectual, emotional, social and behavioural development, and an impairment of the child’s physical and mental health if he were to be placed in his mother’s care. He would be at risk of an impairment in his social intellectual and behavioural development, he would be at risk of emotional harm ad he would be at risk of suffering neglect.
30. The identified risk is founded not upon the mother’s day to day physical care of FP. She has been assessed as being an intelligent woman who understands the basics of day to day child care. She can clearly meet the child’s physical care. It has never been suggested that she would intentionally harm her child. The criticism of her care lies in the fact that she is prone to violent and uncontrollable  outbursts which are frightening and unpleasant to witness. This has been a constant feature of her life from childhood whenever she perceives that she or her children have been the subject of an injustice or inappropriate treatment. I have found in previous proceedings that she is unable to work in a co-operative way with social workers. She has formed relationships with men who pose a risk to her and her children. She has not always been open and honest with the social workers and has been unwilling to accept advice about ways she could employ to reduce the risk to herself and her children. In the two previous proceedings the court was satisfied that the threshold had been satisfied in relation to Y and A. Those findings had been the subject of an appeal to the Court of Appeal. In each case the findings of the court were upheld.
31. There can be no challenge to the factual details set out in paragraphs 1-11  the amended document  at p A 43. The proceedings with regard to FP commenced 8 weeks after the conclusion of the proceedings relating to A. But for the detriment to A in delaying her proceedings both sets of proceedings would have been heard together. This court had the opportunity to consider the reports from independent social workers, Ms Cadwaldr and Ms Pugh and the psychologist Dr Fatimilehin and the Psychiatrist Dr Taylor. Dr Taylor’s opinion, which had been relied upon in the proceedings relating to A, was given in his oral evidence. His conclusions were clarified by his considered opinion set out in the addendum  to  his report filed within these proceedings and summarised at paragraph 10 in the amended Schedule of Proposed Findings.
32. I have therefore concluded that the facts which supported the finding of the threshold in A’s case remain as relevant in FP’s case as they were in A’s case. I am satisfied that the threshold required pursuant to s 31 of the 1989 Act is more than satisfied.
33. Once the Court is satisfied that the threshold has been satisfied the court then has to decide what if any orders are required by applying the welfare check list. The court must also be mindful of the fact that delay is likely to prejudice the welfare of the child.
34. FP has been waiting for 38 weeks for a decision as to his future. He is now 9 months old. The local authority’s case supported by his guardian is that he cannot wait any longer as he is becoming more attached to his carer.
35. The local authority did not propose any further assessment of the mother because they rely on the assessments filed in the previous proceedings. They rely in particular on the addendum report and evidence of Dr Taylor which recommended an assessment by a multi-disciplinary team of the mother’s parenting not just  an independent social work report.  The specific work recommended was a course to address her anger management which would be over a period of 8 weeks and dynamic psychotherapy which would be for a period of 6 months in the first instance.
36. The local authority’s case is that
1. The mother’s difficulties are longstanding and date back to her teenage years. They are unlikely to be resolved swiftly.
2. The matters set out in the revised threshold remain live issues which impair the mother’s ability to care for FP.
3. The mother continues to have difficulty managing her emotions as evidence by her behaviour before the Court of Appeal and the reported conduct whilst in custody.
4. Even if the mother were to obtain the therapy recommended by Dr Taylor there would be a need for further assessment and an opportunity to determine whether any gains had been consolidated before consideration could be given to placing FP in her care.
5. In any event the timescale proposed by Dr Taylor is outside the timeframe for FP.
6. There are no alternative carers for FP within his birth family. His father has been written to but has chosen to play no part in these proceedings. Indeed he played no part in the proceedings concerning A. There have been no other family members successfully assessed as alternative carers. At the commencement of these proceedings the mother put forward Ms White who has been said to be the paternal grandmother of her expected child. She has been spoken to by the social worker within these proceedings and she has declined to be considered as a carer for FP.
7. The local authority acknowledges the positive features of the mother’s case namely that she has managed to establish a cordial relationship with Louise Rigney FP’s social worker. Contact has been an enjoyable experience for FP. She has demonstrated that she can meet his day to day needs during contact. She has attempted to obtain treatment for her difficulties.  She has remained calm during these proceedings unlike her previous appearances at court.
8. There would be a risk that the mother would become angry with the social workers and as a consequence the child would be at risk of being caught up in the cross fire.
37. The mother in her submissions challenges the historical material which led to orders being made in respect of Y. Historically she alleges that the local authority failed her as a child. Dr Taylor criticised earlier reports filed in the criminal proceedings.
38. She does not accept the opinions of Dr Fatimilehin and Ms Cadwaladr.
39. She relies on Dr Taylor’s recommendation for a full parenting assessment.
40. She questions the professionalism of the local authority. Ms Akther on behalf of the mother submits that she has a deep level of mistrust towards Children’s Social Care in the past and has been given good reasons to have that trust questioned because of recent errors. She acknowledges that the mother has little  confidence in the local authority.
41. In support of her submission  Ms Akther lists 8 errors made by the current social worker namely
1. Erroneously including in her statement that FP had  a fractured skull;
2. Disclosing documents from the Family Court to the Mother and Baby Placement at the Prison without leave of the Court;
3. Excising information in the care plan about the proposal to assess the current carer as a potential adoptive parent.
4. Delaying increasing the mother’s contact to FP following a recommendation by the guardian pending the resolution of her appeal hearing.
5. Delaying communicating with her solicitor  on the issue of contact not being increased following the hearing of 21 August 2013 and the explanation as to contact being suspended following the Court of Appeal hearing in October 2013.
6. Mistakes in the filing of statements such as incorrectly referring to the Court of Appeal as the Court of Human Rights.
7. The social worker not attending a court hearing.
8. The key social worker not replying to emails from the mother’s mental health worker in good time and not recalling what reply if any was given.
42.  She criticised  the role played by the team manager Mr Barnes who she asserts has a negative view of the mother. The mother blames Mr Barnes for her subsequent recall to prison.
43. It is the mother’s view that but for Mr Barnes she would have been well on her way to completing her therapy. She was working with Freda Jones and had completed two sessions with her before her recall to prison.
44. The mother had demonstrated an ability to work with the current key social worker  Louise Rigney whereas she could not work with Mr Barnes who was combative and unapologetic for the identified failings of the local authority.
45. She  submits that insufficient weight has been given to the positives in the mother’s case. In so doing she relies on Dr Fatimilehin’s observations that she was a young woman with much potential both as a mother and a member of society.
46.  Ms Akther on mother’s behalf  seeks a placement  either with a foster carer or in a mother and baby unit whist she undergoes the work recommended by Dr Taylor.
47. Ms Akther relies on the work mother has recently completed namely two sets of anger management therapy and the fact that she has started CBT therapy and is able to continue with that work once she is in the community. She submits on the mother’s behalf that she is prepared to undergo the psychodynamic therapy recommended by Dr Taylor.
48. Finally it is submitted that the circumstances do not justify the draconian step of permanently separating a child from a mother who is able to care for her child and has a good relationship with her. There is a gap in the evidence which should be addressed by a further assessment.
49. The guardian supports the submissions of the local authority and has concluded that FP cannot wait for the completion of the mother’s therapy. FP cannot be placed with the mother until such therapy has been completed and appropriate assessments concluded.
50. The guardian has acknowledged an improvement in the mother’s demeanour and conduct within this final hearing. However he relies in part on the assessment provided by the Recall and Review report from Probation which indicated that Mother is not able to reflect on how her behaviour impacts upon others around her and it was worrying that notwithstanding the mother having embarked upon anger management work she still had an uncontrolled outburst before the Court of Appeal.
51. He opposes any further adjournment for the assessment suggested by the mother because he does not accept that her proposals satisfy the recommendations of Dr Taylor for a multidisciplinary assessment. The mother has as yet been unable to identify an appropriate centre to that suggested by Dr Taylor. In any event the delay in providing such an assessment would be outside FP’s timescales.
52. The guardian in any event questions the mother’s motivation to undergo therapy because of what she has said to Dr Halsey and in evidence the mother questioned its relevance to her having her children returned to her.
53. The guardian does not believe that the mother can work collaboratively, openly and honestly with the local authority. He cites as examples her unwillingness to identify the father of A and FP. Her views of the local authority demonstrate a deep seated hostility and lack of trust. This suggests that she will not be able to accept advice and so protect FP. The care order would have no purpose if the mother could not work cooperatively and openly and honestly with the local authority because there would be no way for the local authority to enforce it or have any confidence that the mother would engage with any support  plan put in place to protect FP.

My Analysis and Findings

54. The mother is currently in custody and her Parole Board hearing has been postponed until 25 April 2014. When hearing her application for an adjournment I indicated that I was prepared to accept that she would be successful at that hearing and I do not consider that the fact that she is currently in custody has any relevance to the maters under discussion.
55. I accept that the mother does not have a diagnosis of a personality disorder. However, I repeat my findings made in the  previous proceedings  when I had an opportunity to review the historic evidence filed. I am satisfied that from an early age the mother has demonstrated at times violent uncontrolled outbursts of anger in a variety of social settings. She has been excluded from school she has committed criminal offences one of which resulted in her receiving a discretionary life sentence of imprisonment. It is significant that her offence of arson was directed at the offices of social services.
56. In the previous proceedings I identified that in 2009 Mr Alan Thorn a consultant psychiatrist who had been working with the mother upon her release from imprisonment had recommended that the mother should undergo mentalisation therapy which would take 18 months but he concluded that she was not then ready to undergo such therapy at that time.
57. In A’s proceedings I made the following finding: “I find that the mother has long-term personality issues stemming from her childhood. The precise diagnosis does not matter. The consequence is that it leads to unpredictable outbursts which can be very distressing to witness. I have observed the mother during the history of these proceedings and I have witnessed her outbursts during the various hearings over which I have presided. Her demeanour at times within the courtroom shows her to be a very vulnerable woman who has not had her emotional needs met. She can be aggressive and intimidating.”
58. I am aware that the mother challenged the assessment completed by Dr Fatimilehin. In A’s proceedings I permitted her to seek a further report from Dr Taylor. He has filed an addendum within these proceedings. He confirms his opinion that the mother does not suffer from a personality disorder. But does say that she has problems with paranoia and managing her anger. His original opinion was revised after he had an opportunity to witness an outburst by the mother in court as he was giving his evidence. His revised opinion is set out in his addendum dated 22 October 2013. He said this: “Given the outburst at the last hearing and the evidence that she appeared to have potentially withheld information about her pregnancy and relationship….I was forced to conclude that the personality traits such as mistrust of authority figures and tendency to overtly express anger etc (short of personality disorder) identified in my report have persisted and could interfere with her ability to work with social services. Individual brief dynamic psychotherapy i.e. once a week sessions may be of benefit as a space to reflect on her current difficulties with social services. I have also recommended a further course of anger management which could be individual or group and would need say 8 sessions. …He went on to confirm that his recommendation was for 8 weeks for anger management and six months for the dynamic psychotherapy “in the first instance”.
59. I heard oral evidence from Louise Rigney the social worker and Nick Barnes her Team Manager, the mother and the guardian. I have taken into account the evidence both oral and written and the submissions from the parties. In addition I had regard to the recent decisions of the Supreme Court and Court of Appeal which have emphasised that a court should approve a care plan of adoption only if there is no other option.
60. FP is a young baby aged now aged 9 months. He has been the subject of proceedings for 38 weeks for the reasons previously given in this judgment.
61. There are no other relatives who are able to provide for his care throughout his minority. His father has played no part in these proceedings and in any event what is known of his personal circumstances would have ruled him out as a suitable carer for a baby.
62. In proceedings which concluded 8 weeks before these proceedings commenced the court ruled the mother out as a suitable carer for her daughter A.
63. It has been submitted on her behalf that there has been sufficient change in her circumstances  which would justify the return of FP to her care immediately or in the alternative for further assessment to be required before she is excluded as a carer. It is said on her behalf that the risk that she is alleged to pose identified by the local authority does not  arise from any deliberate act on the part of the mother. Indeed no one has ever suggested that this mother would deliberately harm her children. It arises from the mother’s inability to regulate her emotions when she deals with professionals, social worker’s in particular. This court has witnessed the mother’s outbursts in the pasts and her reaction has been extreme and very unpleasant to witness. Findings have been made to that effect in both the proceedings concerning Y and A. I do however acknowledge that she has been able to keep her emotions under better control during these proceedings.
64. She has submitted that she has embarked on a course of therapy which she has not been able to complete because of the consequence of the actions of Mr Barnes the team manager and the probation officer has led to her recall to prison. She has suggested that the probation officer and Mr Barnes have acted in bad faith. I have not heard evidence from the probation service on this issue. These matters may be given further consideration before the Parole Board. I have heard evidence from Mr Barnes. I accept that relations between the mother and Mr Barnes has broken down. He was the social worker involved in the cases involving A. It would be prudent for him not to be further involved  with the mother. However he did not make the decision to have the mother recalled. He referred matters to the probation service when they occurred as he was required to do and thereafter the probation service had to make an assessment of the situation. Whether they were justified in the course that they  then took awaits adjudication.
65. The mother has filed a report from Dr Halsey. His report has been prepared to assist the mother in her hearing before the Parole Board. I do not have to make a judgment on exactly what happened at the Court of Appeal but there is sufficient evidence for me to accept that the mother had one of her characteristic outbursts. She then sent an email. What this does demonstrate to me is that the mother is in urgent need for the work identified by Dr Taylor  to commence as soon as possible. There is an issue whether the mother is willing to accept that she needs this work and is willing to embark upon it. She was not ready in 2009. Dr Halsey reported that the mother said to him “she does not believe she needs treatment or therapy of that type. She said that her difficulty is that ‘she responds to situations’ in ways that other people do not. Furthermore she thought that therapy would ‘open a can of worms’.” It is also reported in the Recall and Review report that she has consistently disputed that she needs any long term therapy. In evidence the mother said that she was willing to undergo therapy and that she had indeed sought out a therapist. Time will reveal the true position. But first of all careful consideration will have to be given to what was being recommended by Dr Taylor. He was advocating a multidisciplinary team to conduct the assessment and to provide the required therapy. This work will take time in the first instance he thought about 6 months. There would obviously have to be a period of consolidation and assessment.
66. The mother urgently needs this work because she is currently unable to work in partnership with the local authority. She has displayed hostility to the social workers as previously documented. She has demonstrated a lack of honesty in her dealings with the local authority for example she withheld information about the paternity of FP until a late stage in these proceedings. This has been a feature of her behaviour in A’s proceedings and has been a feature in her current pregnancy. The fact that KJ is identified as the father of FP is significant. He was assessed in the previous proceedings as a malign influence upon the mother. She had denied she was in a relationship with him. They had a volatile relationship in which domestic violence was an important factor. She has made some unsuitable choices of partners in the past and the local authority would have to be in a position to assess her partners. But that would be only one area that would require her to be open with the local authority. She would have to be amenable to taking advice. The evidence from her past dealings is that she remains compliant until her views are challenged whereupon she loses all control and can then become threatening and intimidating.
67. The mother submits that she has been able to work with Ms Rigney  her current social worker. Whilst this is encouraging and may indicate the beginning of the process of change I am aware that in previous proceedings she was able to work with a social worker until her views were challenged and indeed the same issues have arisen with her probation officers. In A’s proceedings it was asserted that she could work with her probation officer but I note that there was a falling out last year and it was necessary for a new probation officer to be appointed.
68. I fully acknowledge that this mother has had a difficult life. It may well be that she has been let down by some of the decisions of the local authority in the past but she will not accept that not all her difficulties were caused by the local authority. It is not appropriate for me to revisit the earlier episodes in her life to determine whether each and every decision taken by the authorities were merited based on the available evidence at the relevant time. The end result is that she is now a vulnerable young woman who does not have a personality disorder but who nevertheless has personality traits which leads her to have violent and uncontrolled outbursts of anger in a variety of social settings. She has proven over the years to be unable to work with social services. This has been acknowledged by Dr Taylor and in the report by Dr Halsey. Her difficulty extends to all authority figures. Dr Halsey noted that she has made veiled threats to her probation officer Ms McDermott resulting in a change of probation officer last year. He highlights a number of reported incidents which have occurred during her recent period in custody.
69. In addition to these factors, the mother is again pregnant. There is a baby due in the summer of 2014. The mother will have to undergo an assessment and nothing I say in this judgment is intended to influence that process. But it is difficult to contemplate a process of rehabilitation of FP when work has to be undertaken when it known that the mother will be giving birth to another baby in a matter of months and when she has not yet experienced a period of stability in her life.
70. In my judgment she requires the specific work identified by Dr Taylor to be successfully undertaken before any question of rehabilitation could be contemplated. In my judgment FP cannot wait for this process to be completed.
71. The proceedings concerning A which concluded 8 weeks before the commencement of proceedings with FP identified that the mother required therapy. The timescales for such therapy would be outside the timescales for the child.  The court found that the work could not be undertaken except under an interim care order or a care order. That judgement was upheld by the Court of Appeal. The mother has not demonstrated that she could work  in a collaborative way with the social services. Without a successful outcome to the proposed therapy the risk of harm as set out above remains.
72. The plan is one of adoption. I have regard to the age of the child. I am satisfied for the reasons put forward by the guardian that for a child of this age if he cannot return to his parent or birth family then adoption rather than foster care would best meet his needs for permanency throughout his minority and into adulthood.
73. I am satisfied that he cannot be care for by his mother or birth family. A foster placement would require him to remain a child in care with the statutory involvement of the local authority and the risk of frequent  change of placement and hence instability.
74. The mother has asked me to consider her application for post adoption contact. The plan provides for indirect contact twice a year. I acknowledge that the mother has not disrupted the placement of her daughter MC. But MC has been placed with her birth family. The mother has vehemently opposed adoption for any of her children. Notwithstanding the exchange of correspondence with the current foster carer which has not raised any issues, in my judgment, with a child of this age it is imperative to ensure that the future placement remains stable. I have made findings that the mother’s behaviour is unpredictable. I find that if there was direct contact she would pose a continuing risk of destabilising the placement. I endorse the guardian’s comments that in the event that FP cannot be placed with his siblings Y and A every effort should be made to ensure that sibling contact can take place.
75. I will comment briefly here on some of the mother’s other submissions. She suggests that there has been a conspiracy between the social worker Mr Barnes and the probation service to have her recalled to prison. I have seen no evidence of bad faith on the part of Mr Barnes. But there have been examples of poor professional practice by the local authority. In A’s proceeding it was identified that the mother and Mr Barnes did not have a working relationship. He should not have continued to be involved in her case at any level. I do however accept that his appearance at the Court of Appeal hearing was as a result of a request by counsel conducting the hearing as Mr Barnes had been A’s key social worker.
76.  The catalogue of errors identified by Ms Akther could only have compounded mother’s belief that appropriate care was not being taken by the local authority with her case. These errors display a failure by the local authority to have basic checks in place  by the social work team and by the legal team to ensure that accurate information was disseminated. These errors would undermine the confidence that  any parent had with a local authority. With this mother is was even more important that every effort should have been taken to ensure that such errors did not occur for all the obvious reasons.
77. However these failings by the local authority do not affect the decisions that I have to make in this case. The welfare of the child is my paramount responsibility and I have made my decisions with the child’s welfare firmly in mind.
78. In the circumstances I am satisfied that there is no realistic alternative to the order that the local authority seeks. I make the care order requested and in doing so I approve the care plan for adoption.

The Application for a Placement Order

79. Pursuant s21 of the Adoption and Children Act 2002 I may not make a placement order unless the child is subject to a care order and I can not make such an order unless a parent with parental responsibility consents or the consent has been dispensed with. S 52 requires me to be satisfied that the child’s welfare requires its parent’s consent to be dispensed with. S 1 applies whenever a court is coming to a decision relating to the adoption of a child. The paramount consideration must be the child’s welfare throughout his life:
    s 1(2). I must  bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare: s1(3).  When exercising my powers I must have regard to the welfare checklist set out in s1(4). The matters of significance in this case are the child’s particular needs, the likely effect on the child throughout his life of having ceased to be a member of his original family and any harm the child has suffered or is at risk of suffering and the ability and willingness of the child’s relatives to provide a secure home  for him.
80. The Supreme Court in Re B and the Court of Appeal in Re B-S reminds the court that placement orders are draconian orders which must only be made when there are no other options available and I bear in mind the rights of the parents and the child under Article 8 of the European Convention on the Rights of the Child.
81. The mother is the only parent with parental responsibility. KJ, the father is not named on FP’s birth certificate.
82. The local authority intend to seek an adoptive placement for him. The adopters of his siblings, Y and A, have indicated that they are not able to provide a home for him but this decision is to be further considered. His current foster carer has expressed a willingness to adopt him and is currently undergoing an assessment. His future placement is therefore not yet certain. The proposed arrangement for post adoption contact is for indirect contact twice a year. The Agency Decision Maker has considered the papers and has approved the plan of adoption.
83. The mother opposes the plan and seeks the return of FP to her care. If she is unsuccessful in her application she has asked the court to consider her application for direct contact.
84.  I have approved the local authority’s plan which is a plan for adoption and I have placed him in the care of the local authority. I have to consider now whether to make a placement order.
85. I am satisfied that FP has been waiting for a decision for longer than has been ideal. A further delay would be harmful for his welfare unless there is an equally strong welfare need for a further delay. For the reasons which I have set out in my judgment in the care proceedings I am satisfied that the mother is currently unable to work in partnership with the local authority. She requires the work to be undertaken as identified by Dr Taylor and thereafter there needs to be a period of consolidation and further assessment. This in my judgment  would be outside the child’s timescales. Without the work there will inevitably be continuing conflict with the local authority which in the past has been characterised by uncontrolled aggressive and very unpleasant outbursts which those observing have found to be threatening and intimidating. The risk to the child is from emotional abuse and the potential for physical harm if he is caught in the middle of such an outburst.
86. Furthermore the mother has yet to demonstrate stability in her life. She has been secretive about her intimate relationships. She has been known in recent past to form unsuitable relationships. The father of her last three children is KJ. They had a violent relationship in which there were numerous requests for the police to be in attendance. The mother is again pregnant and the details of the person said to be the unborn child’s father requires careful scrutiny.
87. The mother is currently in custody. She may well be released in the very near future but in my judgment she will require time to settle  and to demonstrate stability and in any event she will be required to become involved in further assessment in respect of the unborn child.
88. In my judgment the risks to FP are too great to contemplate returning him to the mother’s care now. The mother needs to undergo the recommended therapy.  She will then  have to undergo an assessment. The source for the recommended therapy has not yet been identified. Her willingness to undergo the therapy has not yet been satisfactorily assessed and in any event there is no way of predicting how long it will take for this process to be completed.
89. I have considered her request for direct contact and I acknowledge the recent exchange of correspondence with the foster carer. However for the reasons set out in the judgment relating to the care proceedings I refuse the mother’s application for direct contact. In addition whilst it is possible that FP will remain with his current carer this is not a certainty. It would be unusual to seek to bind prospective adopters without their informed views being taken into account.
90. I therefore come to the conclusion the FP’s welfare requires that the consent of his mother should be dispensed with and I make the placement order requested as there is no alternative to the plan proposed by the local authority.