England and Wales Family Court Decisions (other Judges)

IN THE CENTRAL FAMILY COURT

		First Avenue House 42-49 High Holborn, WC1
		22nd July 2014

JUDGE LAURA HARRIS:

1. I am giving judgment this morning in an application by A Local Authority for a care order and a placement order in relation to a little girl called ER, who was born on 8 February 2014 and is therefore aged five and a half months. Her parents are ED, who was born on 13 December 1976 and is therefore aged 37, and AN, who was born on 8 August 1972 and is therefore aged 41. I will refer to the parents as "the mother" and "the father". These are in fact the third set of care proceedings in which the parents have been involved. ED has three full siblings: V, born on 16 February 2000, aged 14; D, born on 15 November 2001, aged 12; and L, born on 1 September 2003, aged 10.
2. The parties' representation during the hearing was as follows: Miss Hine of counsel represented the Local Authority; Ms. Dillon of counsel represented the mother; Miss Kothari of counsel represented the father; and Ms. Tindale was the solicitor for ER and her Guardian, Corinna Brown.
3. The background

The parents both come from Lithuania. The mother came to England in 1998 and the father in 1999, although according to him the mother came a year later. They had known each other from their home town in Lithuania but commenced a relationship only once they came to England and that relationship began in about 1999. The father was engaged in running a brothel and the mother worked in the brothel. D and L were in fact born in Ireland and at that time the parents were moving between England and Ireland. The family became known to Social Care in B Local Authority in 2008, as both parents were sentenced to one year's imprisonment, the father for controlling prostitutes for gain, the mother for managing a brothel. There were referrals from the older children's school in both March and May 2008, when L was four, as the children were reported to have been left alone at home and were travelling to school unaccompanied. At the time of the latter referral at least, they were being cared for by their maternal grandmother as the parents were serving their sentence of imprisonment. The parents were released in June 2008 having served six months of that sentence. The family came to the notice of Social Care again in September of that year as the mother was found to be unrousable through drink and the children were unable to gain access to their home.

4. The A Local Authority became involved in 2009, when the parents moved to that area. In January 2010 there was a referral because of domestic arguments between the parents. A core assessment was carried out. No further action was taken when the father moved out of the home. The mother was referred to A Alcohol Services to address her problems with alcohol. Thereafter the records show there was a pattern of inconsistent engagement with Alcohol Services. There was another referral in 2010, when it was reported that the mother wanted to throw herself off a bridge and was followed by V and then changed her mind.
5. There were ongoing concerns about the mother's excessive drinking, inappropriate physical chastisement of the children with a belt and the children being left alone. There were concerns about a lack of supervision and a lack of imposition of proper boundaries for the children, who were getting into potentially dangerous situations. The mother was reported as suffering from depression and V was taking on inappropriate responsibilities for her younger brothers. There was reported to be domestic violence between the parents, which was denied by the father.
6. In 2011 the mother was being prescribed Antabuse to assist her with her alcohol problem but unfortunately relapsed. D alleged that he had been sexually abused by another older boy.
7. A number of different supports were offered to the family. In 2011 care proceedings were commenced. Those ended on 12 March 2012 with a supervision order being made with the children remaining at home. The understanding was that the father was to step in and protect the children, and move back into the home if the mother relapsed in terms of her alcohol use. Very sadly, within a matter of three months or so the mother had started drinking again. The inevitable result was that a second set of care proceedings were commenced in July 2012.
8. The three older children became subject to interim care orders on 31 July 2012 and they have in fact never lived again at home. For the last eight months of the proceedings, that is, from October 2012 to July 2013, the mother had no contact with the children and effectively disengaged from the proceedings. In March 2013 she was arrested on a European arrest warrant for a historic allegation of armed robbery emanating from Poland. She was imprisoned for a short time and then was released on bail.
9. I have the documents from the previous sets of proceedings and it is clear that a number of expert reports were commissioned in both sets of proceedings. I will refer to the expert reports, which seem to me to be particularly significant. Dr. Ratnam, an adult psychiatrist, reported on the mother in the first set of proceedings. The mother reported a very difficult childhood, when she had been brought up largely by her maternal grandmother because of serious domestic violence in the relationship of her parents, where her father was a very heavy drinker. She reported starting drinking at the age of 15 or 16. She was treated with medication in Lithuania in early 2004. Dr. Ratnam made a diagnosis of alcohol dependence with problems extending back to at least 2004. There was also a history of depression. Dr. Ratnam posited a time frame of abstinence of one year as representing a positive indicator of change and that is the sort of estimate that the Court is used to receiving in cases of this sort.
10. Dr. Fitzpatrick, a well-known child and adolescent psychiatrist, reported in December 2011 in the first set of proceedings. All three of the children, she found, had evidence of emotional and behavioural problems attributable to the care that they had received. At E36 of the bundle pertaining to those proceedings, paragraph 58, Dr. Fitzpatrick said this:

"The history indicates these children have not had consistent parenting during much of their lives. The mother was a binge drinker and was depressed and at such times she will not have been attuned to their emotional needs or able to meet those needs. The father has a limited understanding of the children's emotional needs. He has taken a traditional view that the mother is responsible for the care of the children and he has focused on his jobs and training. The children experienced a six-month separation from their parents and were not given a satisfactory explanation for this, and the care they received from their maternal grandmother may not have been of a high standard. They were exposed to their mother's alcohol misuse and the arguments and domestic violence between their parents, which they are all able to vividly recall."

11. Dr. Fitzpatrick spoke, prophetically as it turned out, of the significant risk of the boys coming into care in the future if the mother was unable to make changes in her parenting. Eric Dooley, a well-known independent social worker, reported on the father in the second set of proceedings. He concluded that the father had not shown the capacity to make the necessary changes to enable him to parent the children safely and adequately.
12. As may be evident from the history I have set out, the mother was not putting herself forward as being able to care for her children at the final hearing in August 2013 as a result of her alcohol problems. On 29 August 2013 full care orders were made after a fully contested hearing extending over a number of days. This was in the magistrates' court. It was found that the father was dismissive of the domestic violence allegations made not only by the mother but also by the children. He had failed to complete the Triangle course. He was unable to set boundaries and ensure the children's safety at contact. Mr. Dooley concluded that the father could not adequately set boundaries or provide consistency for the children. He felt, despite intervention, that the father had demonstrated a limited capacity to change and was unable to acknowledge past failings. He found that there was an inability to meet the children's emotional needs and that the father had no understanding of the impact of domestic violence on the children.
13. His views were supported by the children's guardian, Miss Brown. There were reports of unauthorised contact between the father and the children, which continued after the end of the proceedings, leading ultimately to an application by the local authority for permission to refuse contact by the parents. This was heard by me as recently as 23 May 2014. The Court in August 2013 found that there had been domestic violence incidents and that some had been witnessed by the children; further, that the father had used the belt to punish D and L. It was found that the father had prioritised his work before the needs of his children. It was also found, despite the denials of the parents, that they were in a relationship.
14. The current proceedings

I heard these current proceedings over three days, firstly on 19 and 20 June, although the first day was abortive as there was no interpreter available for the father, and I concluded hearing the case on 17 July. Judgment was reserved to today, 22 July, as there was insufficient time on the 17th. I read the bundle in relation to the current proceedings, looked at extracts of the contact notes, which formed a separate bundle, and also read extracts from the previous two sets of proceedings. I heard oral evidence from Donna Kaye, the forensic scientist employed by Lextox; from Laura Evans, the allocated social worker; from the mother, the father and the guardian. The threshold for the making of orders was not in issue in this case, not surprisingly, in view of the proximity of the conclusion of the previous proceedings, and it was conceded that at the time protective measures were taken ER was at risk of suffering significant harm. Therefore, this hearing focused on welfare issues and, inevitably, on the issue of whether there had been sufficient changes since the conclusion of the previous proceedings.

15. This judgment needs to be read in conjunction with my judgment given in relation to the application for a s.34(4) order. On that occasion I also had the opportunity of seeing both parents give evidence. They were not represented then by their current legal teams but had the assistance of a professional McKenzie friend. Inevitably, the findings I made in that very recent judgment are of relevance to this application, particularly in relation to the parents' inability to co-operate with the local authority, as I found it; their lack of insight into the harm that they had caused and were continuing to cause their older children; and their lack of openness and trustworthiness. The application for a s.34(4) order was supported by the children's guardian, Miss Brown and, in the event, I granted the application.
16. I should say that there was in this case an Article 55 request on behalf of the central authority in Lithuania. Although it was dated 14 April, it did not come to the attention of the local authority until around about the end of June, after the conclusion of the first two days of this hearing. The request indicated that claims brought against the mother that she was suffering from alcohol abuse and drinking during her pregnancy are denied by the mother and that she wished her own mother, who lives in Lithuania, to become the carer of ER. The Lithuanian central authority therefore required clarification of the situation and further information concerning the current care proceedings in relation to ER. As I have said, for reasons which are not clear to me, although the request is dated April, it did not come to the attention of the local authority until the end of June. I have seen their response, which was emailed to me, which indicated that the maternal grandmother was assessed in February 2014, which concluded that she was not viable as a potential carer for ER, that the local authority did not need any assistance from the authorities in Lithuania, and were of the view that the necessary evidence was now available for the Court to make a decision, and indicated that the local authority's care plan was one of adoption, with the final hearing concluding on 17 July. That correspondence was copied to me but, regrettably, not to the parties, but I was told at the beginning of the hearing on 17 July that there had been no further response from the Lithuanian authorities.
17. On the first morning of the final hearing the parents indicated through their lawyers that they had in fact sought an assessment of the maternal grandmother in Lithuania by the Lithuanian care authorities. Bizarrely, this was the first that their lawyers had known of this and this request had not been mentioned to anyone before. I indicated that until anyone had seen the assessment in a translated form there could be no application before me to admit it, and at that stage none of the lawyers had a copy of the assessment, let alone a translated copy. The assessment, which consisted of less than a single page of report of a home visit to the grandmother, was made available very shortly before the resumed hearing on 17 July and, as it was said on behalf of the mother to be positive, it formed the springboard for a Part 25 application for further assessment of the maternal grandmother in Lithuania by an independent social worker, that application being made, as I have said, on 17 July and therefore on the third day of this final hearing. It was agreed that I would address it once I had heard all the evidence, and at the conclusion of the evidence I heard submissions about it, having heard in particular the guardian's extensive evidence about it, and refused it. The application had been opposed both by the local authority and by the guardian. Again, I gave a short judgment and that judgment needs to be read in conjunction with this judgment.
18. To summarise my conclusions, I found that I had sufficient information about the maternal grandmother, not only from the previous proceedings but also from the viability assessment carried out in these proceedings in February. I considered that a further assessment of the grandmother, given all that was known about her, had an extremely limited prospect of success. The timing of the application was also not satisfactorily explained. As I have said, the viability assessment became available at the end of February and the parents and the maternal grandmother were given initially to 9 April to challenge that assessment. That time was then extended to 30 April but no challenge to it was made either by the parents or the maternal grandmother and, indeed, I have never seen, even up to now, any form of statement from the maternal grandmother herself.
19. I will turn now to deal with the issue of the mother's pregnancy with ER. Both Miss Evans, the social worker, and Miss Brown, the guardian, suspected prior to the final hearing in august 2013 that the mother was pregnant. She is of a slight build and she was beginning to show. She was asked directly whether she was pregnant and replied in the negative. The local authority then received a referral from the mother's GP dated 26 July 2013 which indeed indicated that she was pregnant. Miss Evans told me that she had asked the mother about a month or so before this letter. During the final hearing in August the mother admitted that she was pregnant. A scan took place on 22 August which showed that the mother was 17 weeks pregnant. There were also issues about what was the truth about the parents' own relationship. Throughout the proceedings they had maintained that they were not in a relationship. At the hearing in August the mother said that she was not in a relationship with the father and that the father of the baby could be someone else, and she was very guarded about giving very much more information, other than indicating she had been in a relationship with someone else. She denied a relationship with the father despite the older children reporting that he stayed. She admitted that sexual intercourse had taken place on at least one occasion in June 2013. The father for his part said that he had not had an intimate relationship with the mother since February 2013. However, in these proceedings the father said that there had been a one-night stand between him and the mother in May 2013 and stated for the first time that the other man, who apparently lived in Bracknell, could not be the father as the mother had bail conditions from March 2013 which prevented her from travelling outside the M25 and he said the man had not travelled to see her.
20. Miss Evans told me that she considered that the parents had never been honest about their relationship status and the guardian considers that the likelihood is that the parents have never really separated. I find even now that there is a lack of clarity about the history of the parental relationship. The mother said that the parents were not in a relationship with each other until after Relate sessions that they attended ended in March of this year. However, in evidence the father told me that the parents had become intimate again after November, although they did not live together again until April.
21. The history of events since August 2013

I have a detailed statement from the first social worker, Selina Blay. She was not called to give evidence, nor was her statement challenged. The mother booked late for antenatal care and was over 20 weeks into her pregnancy. There was concern by the health professionals as to whether she was drinking during her pregnancy and therefore a referral was made to the R Clinic, which is an antenatal multidisciplinary team. The booking midwife had recorded that the mother said that she was not drinking during her pregnancy but had had two to three glasses of wine over the weekend to celebrate the fact that she had found out she was having a girl. She stated that she stopped drinking as she found out she was expecting a girl.

22. The 25 September 2013 was the first time the mother attended the B Project. When she was breathalysed she showed a very high alcohol reading of 163 or 168 mg per 100 ml. She missed three out of six subsequent appointments but did give negative breath tests when she did attend. The mother was also reported to be using a range of medications, including antidepressants, anti-anxiety medication and benzodiazepines, which it was said she was ordering over the internet from Lithuania. The mother said that she had been prescribed these by her GP in Lithuania but I have seen no evidence to support this. Indeed, this was not mentioned in the pre-birth assessment carried out by Miss Blay or, according to Miss Evans, to her. The mother was warned about the potential impact on the unborn baby of these substances. She in fact tested positive for benzodiazepines on 23 October 2013. Because of the potential risks to the foetus of an unsupervised detox, she was advised to undertake a detox as an in-patient. However, she declined. She said that she had been advised by her GP that, given the amount she was taking, such an in-patient detox was unnecessary. However, I have seen nothing from the GP to confirm that that is the case. She did however cease to take the medication and she gave negative urine sample tests for drugs including benzodiazepines from the middle of October until just after the birth of ER. It is reported that she missed a number of antenatal and health appointments.
23. In October 2013 it was reported that since her booking had been made she had failed four appointments, which raised concerns because the health professionals were unable to ascertain if she was drinking or not. A referral was made to Social Care in October 2013. The mother failed to co-operate other than in a very limited way with the Child and Family assessment. She was dismissive of the concerns raised. She said they were, "All lies, lies, lies." The mother disputes that she was unco-operative and says that the social worker was not available for appointments. I have seen a detailed chronology of the mother's non-engagement both in the assessment itself and in Miss Blay's first statement and I am quite satisfied that that has been accurately recorded. The mother kept only two appointments, under encouragement from the father. Further, the R Clinic reported that the mother was very guarded and careful in her responses to them.
24. There was concern in November 2013 about the baby's growth and the slightly increased amount of fluid around the baby, which could have as its possible causes a genetic illness or harm caused by alcohol use. It is right to record that the father engaged better in the pre-birth assessment. However, he was still resistant to accepting the concerns and spoke of a conspiracy. He continued to deny that there had been domestic violence, and indeed, repeated his denial in his first statement at C61. In December 2013 the local authority activated a national alert as the older children were reporting that their parents were planning to run away with them, possibly to Poland. As I have already said, there were ongoing concerns about the parents' unauthorised contact with the older children. The parents were also said to be living apart but appeared to spend a lot of time together.
25. The first hair strand test results were available in March 2014. The mother reported the use of zopiclone and Rapimelt. The use of Rapimelt during pregnancy and the effect on a child is unknown. According to the evidence of Miss Evans, the use of zopiclone can be unsafe and the sedative effect on the child is enhanced if used along with alcohol. The mother says that her GP advised her that if she took these medications occasionally there would be no harm to the baby.
26. In a letter dated 26 July 2013 at F26 the mother's GP in fact warned of the risks of taking zopiclone and metazepam during pregnancy but the mother decided to continue. She says that she ceased taking metazepam once she was advised that it was contraindicated. I have seen an entry dated 24 October which refers in fact to the mother having already stopped taking metazepam and she was only intending to use zopiclone twice a week and there are no references in fact in that entry to any concerns from the GP about this. She was however also warned about the risks of smoking but continued to smoke 10-15 cigarettes a day.
27. ER was born, as I have said, on 8 February of this year. She was seen to be jittery after her delivery. She scored between 4 and 3 on the drugs withdrawal chart. However, I have received no medical evidence about the significance of these results. There appears to be drug testing at day two, which is at E32 in the bundle, showing negative results. However, the position is confusing. There were repeated attempts by the local authority to get the toxicology test results from the hospital or even to establish that these had been done and all these attempts proved fruitless, therefore there is a lack of evidence about whether ER was subject to withdrawal symptoms.
28. ER's foster carer, however, raised concerns about the new baby being quite jittery, overly sleepy and difficult to wake such that she missed feeds. She was also reported to be feeding excessively at times, to be sneezing and sniffling as well as sucking strongly. Miss Evans says that such presentations are strongly suggestive of withdrawal, although, as I repeat, I have received no medical evidence to that effect.
29. The parents' attitude has been to discount any concerns which have been raised on these issues. For example, they say that all babies are jittery to some extent. As I have said, although there are suggestions that the baby was presenting symptoms consistent with withdrawal, I have no hard medical evidence upon which to make a finding.
30. The mother's use of alcohol since August 2013

As the guardian has said, the mother has given a number of contradictory and inconsistent accounts to different professionals over time and indeed in her evidence about her use of alcohol during this crucial period. She told her GP on 25 July that she still has a very small amount of alcohol, namely one bottle of low alcohol beer a day, and the reference is F26. She told the midwife, who referred her to the R Clinic, that she was not drinking, that she had not drunk during her pregnancy except for 2-3 glasses of wine in the previous weekend when she found out she was expecting a girl. It is recorded that she told the B Project on her first visit on 25 July that she had been sober for the last four months since she went to prison briefly and had been drinking non-alcoholic beer since, and the reference is F54. Again, she said she only drank a few glasses of wine to celebrate the news that the baby was a girl. Having reported that, she was then breathalysed and gave a reading, as I said, of 163 or 168, which is a high reading. The mother said in her oral evidence that this statement about abstaining from alcohol for four months was not correct but she could not explain how it came to be in the records. She did accept that she had a few glasses of wine to celebrate that the baby was a girl. When she was asked about the high reading on the breathalyser in cross-examination, she said very vaguely that maybe she had been drinking the previous day or the day before. In her first witness statement she said she had not drunk alcohol since September 2013. On 3 April of this year, during the adoption medical of ER, where the mother was present, she said again that she had not drunk during the pregnancy. On 9 May the guardian met with both parents and the mother told her that she had consumed alcohol until the end of August 2013. On the one hand, she said, "I was not 'drinking drinking', not every day" but then she said that she had consumed 5-6 cans of beer every day until September 2013. In oral evidence she said the guardian had misunderstood her as she had had 5-6 cans of lager a day until she took the pregnancy test in July and then after that she was drinking non-alcoholic beer, and she repeated again that from 25 July, when the doctor confirmed the pregnancy, she had had no alcohol except 2-3 glasses of wine to celebrate. The guardian was extremely concerned, as am I, about the numerous inconsistencies and contradictions in those accounts.

31. The alcohol testing evidence

Two separate labs have conducted tests. The first, AlphaBiolabs, took a hair sample which covered the period of approximately mid-August to mid-February. This was negative for benzodiazepines. They could not test the blood sample provided as it was unsuitable. The results for alcohol testing showed that the EtG level was above the cut-off level at 153 pg per mg. The FAEE however was below the cut-off level. Their report said that EtG was a unique product of the breakdown of ethanol; in other words, that it cannot be produced by anything other than alcohol, and their conclusions were that the results suggested chronic excessive alcohol use over the period. I should have made clear that the mother and the father strongly contested the results of both labs. The report went on to say that FAEE can be removed from the hair by cosmetic treatments, including certain shampoos that have an alkaline pH and that could provide an explanation of the different results. AlphaBiolabs concluded that the results made interpretation complex and the EtG result must be treated with caution.

32. At E109D are their conclusions and what they said was this:

"Overall alcohol interpretation. Overall the positive EtG result could not be supported by the FAEE results. This makes interpretation complex and the EtG result must be treated with caution. Taking this into consideration it is only safe to say that ED has consumed alcohol during the period of investigation approximately mid-August 2013 to mid-February 2014 and although the EtG results suggest that ED has chronically and excessively consumed alcohol, I am unable to say this unequivocally. It is advised that the above findings should not be used in isolation but in conjunction with other evidence and clinical assessment."

33. As a result of those findings by the lab, I acceded to the mother's request to have further alcohol testing, and this was carried out by Lextox and a hair sample was taken which covered the period of approximately the beginning of September to the beginning of March. The blood analysis which was taken on 18 March showed CDT levels in the negative range and so far as the liver function test was concerned, only the level of alkaline phosphatase was above the normal range. This can be found in women in the third trimester of pregnancy and is not related to alcohol use. The same applied for the blood tests results of 1 April which the mother had. The analysis for evidence of the two alcohol markers, FAEE and EtG, showed that FAEE was below the cut-off level that suggests chronic excessive alcohol use, and once again EtG was above the cut-off level of 30 pg/mg and was 50.6. At E105 paragraph 6213 the report stated this.

"Both ethyl glucuronide and fatty acid ethyl esters are suitable as direct markers for an independent or combined application to discriminate between abstinence/moderate social drinking and chronic excessive alcohol consumption. Clinical judgment in combination with a laboratory test is strongly recommended for the best diagnosis."

The report also advised that EtG is water-soluble and shampooing reduces its presence. The report made it clear that the results do not indicate alcohol use at any particular time but only during the period under analysis. It also said that a positive result for either substance can be used independently for chronic excessive alcohol consumption and the results or the conclusions of the report were that there had been chronic excessive alcohol use for the period. However, there was no biochemical evidence of recent alcohol use. It was said that EtG is an excellent marker and is highly unlikely to be as a result of any hair products, in contrast to FAEE, which can be elevated by frequent use of ethanol-containing hair products. The sample section was not dyed as this can be removed by dying and provide a false negative result. The report said that as a proportion of the hair, about 15 per cent, at any one time is not growing, it may take 3-6 months before a not detected level is obtained. However, the report went on:

"On the balance of probability the results obtained are unlikely to be due to historic alcohol consumption prior to the beginning of September 2013. For the level of EtG detected to be due to historic alcohol consumption the EtG marker would have to be present in the approximate 15 per cent of non-growing hair in the sample. This proportion of the hair sample is small and therefore whilst it is not impossible for this amount to produce a positive result in the time period covered by the sample, on the balance of probabilities it is unlikely."

It was said that the absence of any previous testing meant that no final conclusions could be reached but the author would have expected if this was historic for the level of EtG to have been much higher and decrease dramatically to the current level. There was a recommendation of a further hair sample in 3-6 months' time.

34. Because the results were challenged, Donna Kaye a forensic scientist employed by the lab, came to give oral evidence. She made the plain observation that both sets of testing, Lextox and AlphaBiolabs, had detected EtG. She said that without previous results one would not be able to determine whether the EtG detected had its origins in previous use. However, the reason why she considered it unlikely that it was attributable to previous use was because EtG was water-soluble and the older hair had been washed more frequently. That was why she considered it was unlikely to be attributable to previous use, and indeed, she said that the sort of level one would be looking at from previous results if they existed would be from 300-400 as about 20 per cent of the hair would have to drop by 80 per cent. She also reported that FAEE can navigate down the hair shaft and is likely to be more affected by hair products, which was why in her opinion EtG was the more reliable marker. She said there was a potential for false negatives and false positives using a single test alone of 10 per cent, which was why it was advisable to combine the tests. That would be in effect the gold standard. However, she said it was not uncommon to get the sort of results which were seen here. She said different substances were incorporated into hair differently and were affected by different hair treatments and individual metabolisms. She said there was some FAEE present in the hair but this was just below the cut-off point. The fact that CDT was negative in the blood test indicated that alcohol had not been consumed within 28 days of that test being taken. She said about the liver function test that the effect of alcohol varies considerably from individual to individual. Some could take years for the liver function markers to be elevated. She said that chronic alcohol abuse equates to about 7.5 units of alcohol a day on average. She said that hair has a 4-6 month resting period and then falls out and she said that the differences in the amount of EtG between the two labs could be attributable to bleaching in the intervening period or the time difference between them or difference in testing techniques in both labs but she said we were not talking about a big difference; we were talking about trace amounts. She maintained the firm conclusion that on the balance of probabilities the testing demonstrated chronic excessive alcohol use during the period under consideration and was not likely to be attributable to historic use.
35. I accept the evidence of Miss Kaye, which seemed to me to be entirely plausible and scientifically based, and indeed the results of the testing. I accept in particular her conclusion about the unlikelihood of the results being attributable to historic use.
36. I turn now to the evidence of Laura Evans. She has been the social worker for the three older children since September 2012 and was allocated to ER as social worker on 6 March 2014, therefore it is clear that she has had a substantial involvement with this family. When she met with the parents on 29 April this year they put all their previous problems down to the mother's abuse of alcohol, which they maintained was no longer a problem in view of the steps that they had taken, the mother attending AA, the father attending Al-Anon and the fact that they had attended four sessions at Relate. The father was disputing the conclusions of the independent social worker in the proceedings concerning the older children. Miss Evans also spoke to them about the harm that they were causing the older children in undermining their foster placements but they were unable to acknowledge this. They believed that the proceedings were a conspiracy and there was nothing that the social worker could do to stop them getting their children back, and she said this was very much the same response as in previous discussions. This was also very much their stance when they gave evidence to me in the recent contact hearing. The parents said they were together but not cohabiting, although I note the father told me in evidence that he had moved in with the mother in April. They advised the mother would be the primary carer for ER and the father advised how busy he was in his new self-employed work as a plumber/electrician.
37. She referred to the viability assessments which were carried out in respect of five family members or friends put forward by the parents: either the individual concerned withdrew or those assessments were negative. None of those assessments have been challenged. In her oral evidence she spoke of the father's assessment in the previous proceedings and she said there had been no improvement in his ability to recognise why he needed to safeguard the children. She said there had been huge safeguarding concerns at contact with the older children. It had been in the community and they had been running across the roads. One of the children released the handbrake in the father's car and the father could not see any problem and in fact thought this was funny. The children would go missing and in fact two contact supervisors were required. Contact had to revert to a contact centre as it was not considered safe in the community. She said the older children had no respect for their parents and were very, very rude to them. They would not follow any instructions. The local authority had had to apply to cease that contact. The parents were unable to accept the harm they were causing their children by undermining their foster placements. They were dismissive of any possibility of potential harm to ER and she had concern about their ability to manage a child as that child got older. She felt she had to be cautious about the mother's explained progress at AA. The progress would depend on the mother's self-reports and she said her caution was in the light of the history, where interventions had been believed to be successful before. She said the father had engaged better with her in these proceedings but was still unable to acknowledge the harm that had been caused and she was worried that he would revert to previous patterns of working. She said in the previous proceedings clear accounts of domestic violence came from the children themselves and that the mother did not report all the incidents. She said the parents had not worked honestly with her and she did not believe that the father would report a relapse by the mother or any information which he would see as being disadvantageous to him. I found Miss Evans' evidence credible and I take into account the depth of her knowledge of this family. I found it evidence that I could accept and I do accept it.
38. There was also written evidence from Susan Glock who is an acting team manager with the Adoption team. She was not required to give oral evidence. She indicated that a placement of ER might take longer than the average of 2.2 months for Greenwich after a placement order for a baby, of prompt placement to matching, in recent times because of the risk of foetal alcohol syndrome but she indicated that a search conducted on the adoption register in June indicated three families of Lithuanian descent, ten of Polish and 70 white British families who might consider a child with similar needs to ER. She said that an early alert to 260 adoption agencies indicated two families with Lithuanian background, two with Polish background and in all 28 responses with an awareness of the possibility of foetal alcohol syndrome. She said that initially if a placement order were granted the local authority would seek adopters of an eastern European ethnicity for two months before widening the search and that there would be a time-limited search for six months. Miss Evans updated the position in her evidence and said that anonymised advertising had in fact produced an extremely positive response.
39. The parents in their evidence indicated that there were now a number of positives which had not been present in the previous proceedings and which should persuade the Court that ER could be safely returned to their care. They were these: firstly, they said that the mother had addressed her alcohol problem. They accepted she was a recovering alcoholic but that alcohol use was currently under control. The mother described how she was attending Alcoholics Anonymous twice a week and described in glowing terms how helpful it had been for her and was unlike any previous intervention that had been tried. The mother has not been seen under the influence of drink at any contact session, and contact takes place three times a week, or at any time when she had been seen by professionals. She was described by the guardian as looking well and that it was obvious from her presentation when she was seriously abusing alcohol: she would look ill and it was obvious to those who had experience of her. I note that the AA sessions have only been started at around the commencement of these proceedings.
40. The father has been attending Al-Anon from March 3 2014. He says that that has given him great insight into the world of alcoholics, an insight that he did not have before, and he too reports finding those sessions extremely useful and that he will continue them. Further, the parents report that they have worked on their relationship by attending four sessions with Relate between 23 December and 14 March. Plainly, there is no information from Relate as to the detail of the sessions, they being confidential. However, the parents say, and say very strongly, that their whole relationship has changed in its nature. The mother describes the father as being far more supportive than he has been in the past. The father for his part has attributed any domestic violence in the relationship to the mother's drinking and he says that there will not be any difficulties in the relationship because the mother is not drinking. The father described their relationship now as perfect. Further, they have attended all contact sessions, in contrast to the previous proceedings, and the quality of their care and contact is said to be impeccable. Miss Evans described it as heart-warming, however, qualified that by saying that this does represent a limited time in a supported environment. The father is now self-employed and he says that this gives him much greater flexibility in his working hours. He described in his evidence how after securing the return of ER that they would seek the discharge of the care order on the three older children, and said in evidence that if the four children were returned, the mother would be the primary carer whilst he worked, like all families do, and I will have to consider what the impact is on his having the ability to work more flexible hours as a self-employed person. I note however that he told Miss Evans in April that he was very busy and he told the guardian that he was working weekends when they met in May.
41. The mother is also no longer at risk of extradition, the extradition order having been quashed, although she is still subject to a European arrest warrant should she leave this country. The parents also submit – and there is no dispute about this – that they have a suitable home environment with all necessary equipment having been purchased for ER.
42. I will come back to consider the parents' case when I give my impression of the parents.
43. So far as the guardian is concerned, she too has the great advantage that she has been working with this family for over three years and knows them well. She gave evidence in the contact proceedings which I found to be careful, considered and of a high standard. She interviewed the parents most recently on 9 May. She said it was striking that they had not developed any further capacity to reflect on the past, especially the father, and the significant harm that the three older children had suffered. Both parents adamantly refused to contemplate even the possibility that ER may have been harmed by the mother's use of alcohol/drugs during her pregnancy. They were very angry with the local authority and refused to take responsibility for their actions. At E128, paragraph 10, the guardian said this:

"Unfortunately therefore, since the conclusion of the previous proceedings in August 2013 relating to ER's three older siblings ED and AN have not been able to clearly demonstrate that they can make the necessary positive changes to safely parent ER either individually or jointly. Most strikingly, the parents not only do not show the requisite insight into the safeguarding concerns of the local authority; they simply do not accept them in any way whatsoever."

44. In oral evidence the guardian said that some of the oral evidence she had heard had crystallised her views, for example, about when the mother stopped drinking and what she had been drinking. She said that on 9 May the mother was very clear that she had drunk 5-6 cans of lager throughout August. She said that the risks arising out of the alcohol issues having regard to the chronicity of the concerns were too high for ER. She was not satisfied that the father would communicate any concerns to the local authority and she said the evidence to date has not demonstrated a capacity to work in a positive partnership with the local authority. She felt that the father in fact had become more and more entrenched and hardened in his views against Social Care and indeed the British legal system. She felt the mother had more insight but that she tended to be greatly influenced by the father. She said she was very, very concerned about ER's safety if the mother resumed drinking again. She was concerned about the evidence that she heard about the discharge of the care orders and felt it demonstrated a lack of insight.
45. In terms of paternity, she said the accounts now being given were different to those being given at the August 2013 hearing. She was concerned that the mother had been concealing her pregnancy and she said the father was still understating the issue of domestic violence. She referred to the father's lack of boundaries and proper supervision of the older children. She felt that when the mother was sober, she was more reflective and did genuinely regret what she had done. However, like Miss Evans, she was concerned that when the intense professional scrutiny engendered by these proceedings is gone there is a real risk that the mother would slide back, and she emphasized she had been working with the family, as I have said, for over three years. She raised real concerns about how the father would react if the mother slipped back again. The father plainly, on his own account, became extremely frustrated by the mother's use of alcohol and those were the sort of occasions where volatility in the relationship and indeed domestic violence might arise. As with the evidence she gave in the contact proceedings I found this guardian reflective, considered and her evidence both written and oral to be of a high quality.
46. My impression of the parents: the mother

The guardian described the mother as an engaging and intelligent woman and I do not disagree. She presented very pleasantly in the witness box. However, as I have already indicated, I found her evidence about her alcohol use, and indeed both the parents' evidence about the status of their relationship at different times to be contradictory and inconsistent. I find that the mother demonstrated a lack of candour about her pregnancy. I find also, even accepting her own account, that she significantly failed to safeguard the health of her unborn child. She failed to take on board medical advice, for example, about detox, and failed to co-operate with the pre-birth assessment, and I note that all this was but a few months ago. She is in complete denial about the risk of foetal alcohol syndrome. This raises a real question about how she would deal with it if it were diagnosed in the future. She said, very grudgingly, in cross-examination, "If the professionals want to monitor it, I am not against that" and later "if the professionals say that they need to."

47. The father, in my judgment was at pains to present an entirely different face from that which I saw at the hearing on 23 May, when he was palpably both hostile and tense. In my judgment, he sought to portray himself as a picture of reasonableness and as someone who would play things by the book. He said that his behaviour regarding his older children was over since January and that since February he has had an entirely different relationship with the social worker. He said he had learned his lesson. I am afraid I did not find that presentation convincing. The picture he presented was at odds with the man I saw as recently as 23 May, as were the contents of his evidence before me. He is not unintelligent and I find that he has appreciated the negative impact his evidence had on me in May. He has failed to accept the negative findings of the previous assessment and there is no evidence that his parenting has changed. He has been particularly undermining of the local authority in relation to the older children and has caused them, as I found, continuing harm by his actions, and those actions were actions of only a few months ago. I find that he has been unable to prioritise the children over his work in the past and prior to the previous proceedings he did not adhere to an agreement to move back into the family home and care for the children whilst the mother left if she reverted to alcohol use. He said in his witness statement that if the mother reverted to alcohol use he would inform the mother's AA sponsor and ask to move ER for her safety. Significantly, he did not say that he would inform the local authority, although he did say that he would do so in evidence.
48. He said that his plan was to achieve the return of ER and then seek to discharge the care orders on the other three children and, as I have already observed, his plan was for the mother to be the primary carer of the four children. In my judgment, this showed a startling lack of insight. All of the older children are very challenging and, sadly, damaged children and I consider that he failed to reflect on this, or that stress was likely to be a trigger for the mother's resumption of excessive alcohol consumption. Although he knew the mother was drinking until the end of September, he said he was only visiting her on weekends until the end of November, which was when he became self-employed. After November he said that he visited a lot and took the mother to all appointments and then moved in in April. It is difficult to see how he could assess if the mother had ceased drinking if he was only seeing her on weekends.
49. In relation to the improvements the parents have put forward, I have to consider the first one, which is that the mother has now addressed her alcohol problem. As I have already observed, the tests do not tell us over what period the mother has been drinking; they cannot tell us that. It seemed as if by the end, although the mother gave vastly contradictory accounts, she was accepting that she was drinking till the end of September. However, given her lack of openness and the contradictory accounts she has given, I cannot make a finding on the balance of probabilities that the mother has consumed no alcohol since September. I take fully into account what is said about her presentation by different professionals. However, I note, for example, that there were a number of missed appointments with the health professionals in October. The only thing which is clear is that at the time of the blood testing in mid-March the mother had not drunk for 28 days. Plainly, the evidence of the mother's presentation compared to the past suggests that she is not drinking alcohol as she was previously. However, in the light, as I have said, of the testing and of her own evidence, which was wholly unsatisfactory on this issue, I cannot find on the balance of probabilities that she has taken no alcohol since the end of September. All I can find on the balance of probabilities is that as of mid-March when she gave the blood test she had not drunk for 28 days. Even if the mother ceased drinking at the end of September, that was virtually halfway into her pregnancy and I have already found that that represents a significant failure to protect her unborn child.
50. So far as the other matters relied upon by the parents are concerned, I agree with what the guardian and Miss Evans said about the attendance at AA. Firstly, it cannot really be monitored and depends on the mother's self-report; secondly, that one must approach it with a degree of caution given the chronicity of the alcohol concerns and the fact that there have been previous periods where the mother has responded well to treatment and then relapsed. I also note that the attendance at Alcoholics Anonymous is relatively recent given that the mother knew that she was pregnant last July. I find the same in relation to the father's attendance at Al-Anon. Commendable as it is that he has done this, this only started as recently as March 2014. So far as the Relate sessions are concerned, again, I agree with the professionals that a series of four sessions is not, in my judgment, adequate to address the complexity of the relationship dynamics between this couple, which, as I have said, are longstanding and complex. I also do not accept that the issue of domestic violence reared its head only in situations where the mother had been drinking. I consider that there are wider issues; the history shows there are wider issues about domestic violence in the relationship which are not wholly attributable to alcohol. I also find that the father has very traditional views, which are no doubt in part culturally based, about the respective roles of carer and breadwinner in the family. I am not convinced that he is going to be making himself significantly more available in his self-employed capacity than he was previously. He has a good work ethic and understandably wants to earn good money to support his family. I am told the family are saving to purchase a house of their own. His evidence that the mother would be the primary carer if all four children returned and he would be at work is reflective of his deeply entrenched views and approach to the division of roles within the family and, as I have said, I am not convinced, given those fairly entrenched attitudes, that he would necessarily behave in a different way now that is working on a self-employed basis.
51. As well as my concern about alcohol use, I have an overriding concern that I do not find these parents to be trustworthy. This is plainly an extremely important finding, and indeed a central finding, because it goes to the possibility of proper and real co-operation with the local authority and a proper and honest reporting of concerns. The evidence about their lack of trustworthiness comes from a number of different places. They have shown a lack of openness about their own relationship, about the mother's pregnancy, and on the issue of alcohol use. They have also, I am afraid, behaved in a grossly deceptive and undermining way, and a particularly hostile way towards the local authority in relation to their older children. Although the father says this is now over, this evidence, as I stress, is of recent origin. I simply do not trust that the parents will co-operate openly and honestly with this local authority. I do not consider that the father would report something to the local authority which was disadvantageous to the family. I noted his acute hostility as recently as May and I am afraid I cannot accept that he has had a Damascene conversion since the end of May and therefore, as I have said, this lack of trustworthiness is central to my findings.
52. I will turn now to consider the welfare checklist and the legal approach to the local authority's application. Plainly, as this is an application for a placement order, the welfare of ER throughout her life is my paramount concern and I must apply the welfare checklist set out in the Adoption and Children Act 2002. I am not going to consider each and every item in the checklist in this judgment although I have taken them into account. I am going to consider first of all ER's needs. ER is a five-and-a-half month old baby and is plainly vulnerable. There have been concerns from the outset about the possibility of foetal alcohol syndrome. There was a paediatric medical on 17 June. The doctor was not concerned about ER's head flatness or the stiffness which has been observed. He was however more concerned about her facial features, which included a smooth philtrum and additional soft dysmorphic features. He has made a referral to a geneticist and says there is a need for ongoing monitoring. It is right to report also however that ER is described as an alert baby, as strong, with a good eye gaze and currently meeting her milestones. Therefore the question of whether she will have additional needs remains an open question but plainly on the evidence is not one that I can rule out.
53. The harm that ER has suffered or is at risk of suffering

I have already made the finding that in my judgment the mother has placed ER at risk of significant harm by her delay in seeking antenatal care, by her refusal to undertake in-patient detox, by her use of alcohol at the very least until well into the halfway stage of her pregnancy and by her use of non-prescribed drugs in the early stages of her pregnancy. I have referred already to the guardian's analysis of the risk of harm at E128. The guardian considers that there is a risk of relapse once the professional scrutiny which is currently in place is removed, as there was with the older children. I agree with the guardian's assessment, which is also the assessment of the social worker. To me, the clearest demonstration of the chronic nature of the mother's alcohol problem is that she continued to drink even on her own account to the end of September, well into her pregnancy. Even though she may have been undecided about whether to keep her child, she was exposing the unborn child to serious and potentially lifelong harm. All the risks which were identified as recently as August of last year in my judgment have not reduced significantly. There is no evidence before me that the concerns about the father's parenting, which were so significant that the Court felt unable to risk the children being placed with him, have improved to a degree where he would be able to parent ER, not just as a young baby but as she grows older. I consider that the risks which were present for the older children are still currently present for ER, not so much now, as a young baby, but as she grows older and becomes more challenging, and those risks will be compounded if – and I hope sincerely this is not the case – she is found as having some additional needs. I find that the lack of insight, as I have said, is demonstrated by the father's proposed plan for the four children to be in the primary care of the mother again.

54. In considering the risk of future harm, I have also considered the capacity of the parents to meet ER's needs and the risks that I have identified plainly are relevant to that capacity. I accept of course that in considering the likely effect on her, if I granted a placement order, of having ceased to be a member of her original family and becoming an adopted person is likely to be significant. She has three full siblings who are in long-term foster care. I accept the local authority case that there will not be ongoing direct contact with her parents and there will also be unlikely to be direct contact with her siblings at least until she is very much older. Plainly, that is a very significant effect and must not be overlooked in any case, and I have to balance the effect of that state of affairs against the risk of harm and the parents' lack of capacity. I have to consider whether there is any other person available who is able and willing to meet the child's needs. I have already referred to the number of viability assessments which have been conducted, and in particular to the viability assessment of the maternal grandmother, together with the other evidence about her, which led me to conclude that it would not be appropriate or necessary for there to be further assessment of her. Very sadly, I have come to the conclusion that there is no other person available to meet this little girl's needs on an ongoing basis.
55. I refer now to the recent cases of Re B, the decision of the Supreme Court reported at [2013] UKSC 33 and Re B-S reported at [2013] EWCA Civ 1146. It is not enough simply to consider the paramountcy of the child's welfare and the matters in the checklist. I have to consider the proportionality of any decision I make if it is to remove the child permanently from her family. In other words, in considering proportionality, I have to be satisfied that the steps taken or the order proposed to be made are a proportionate response to the harm feared. The case of Re B makes it plain that in considering proportionality I have to be satisfied that no lesser order than the order sought will do. At paragraph 198 of the judgment Baroness Hale said this:

"Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and when motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."

Further, I am enjoined by the case of Re B-S to conduct a robust, global and holistic assessment of the different options before me, and I refer in particulars to paragraphs 43, 44 and 45 of the judgment:

"43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

'In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach……is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.'

We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

44. We emphasise the words 'global, holistic evaluation'. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

'What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.'

45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:

'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.'"

56. I have to undertake a robust and holistic evaluation of the pros and cons of each option for the child. In this case, realistically, in my judgment, there are only two options, that is, a return to the family of birth or a placement order. No-one has seriously suggested that if ER cannot return to her family of birth, she, as a five-and-a-half-month-old baby, should remain for the rest of her minority in a foster placement and remain a looked after child. I rule out that option as a realistic option and I am only required to consider and balance the pros and cons of the realistic options. I do not consider that a placement in a long-term foster placement for a child of her age could meet her needs for consistency, stability and a permanent family of her own. She will remain a looked-after child, looked after by employees of the local authority, and there must always be a risk that there would not be a single long-term placement for this child. So I balance the pros and cons of the two live alternatives before me.
57. The pros of living with her family of birth.

I have no doubt that the parents love ER very much, that they are committed to her, and that this has been demonstrated in particular by their contact with her, their commitment to the contact and the way that they behave within contact. If ER lived with them, this would meet her identity needs, would meet her needs for access to her culture and heritage and enhance her self-esteem. She would have the benefit of contact with her full siblings and would have, of course, the benefit of an ongoing relationship with her parents. The cons of that course lie in the risks that I have identified: the risk of relapse into excessive alcohol use with the consequent very high risk of harm to this little girl; the risks arising out of the parental relationship, which I do not consider have been fully addressed; and the risks arising out of the parents' lack of trustworthiness. I do not consider that they can safely be trusted to work with the local authority. There are of course also risks arising out of what I find to be the concerns which were present in August of last year and have not, in my judgment, on the evidence been ameliorated to a point where ER could safely be entrusted to her parents.

58. I come to the very sad conclusion that those risks, and the risks of harm to this little girl arising out of those risks, outweigh the benefits of living with her birth family and all the benefits that ensue from that. I have come to the conclusion that if ER cannot live with her birth family, and I sadly find she cannot, the only outcome which would best promote her welfare throughout her life would be an adoptive placement. In those circumstances I have to consider the question of dispensing with the consent of both of the parents. I am satisfied, having regard to the very high test imported by the word "require", that her welfare does require that the consent of her parents to a placement order be dispensed with and I so dispense with it.
59. So far as contact is concerned, both parental and sibling, I approve the local authority contact plan for reduction in contact. I consider the parents' alternative plan represents too extended a period and I consider there is a need for a severance of the relationship at a point where the child is likely to be matched and placed. So far as sibling contact is concerned, it would be of enormous benefit to ER, as the only child in her family to be adopted, to have contact with her full siblings. I can see the very real difficulties which are present in the current circumstances in terms of confidentiality of any placement and I consider that any adopters worth their salt will be encouraged and I am sure will consider the prospects of such contact further down the road, when ER is considerably older, and therefore I cannot make any form of contact order to the siblings, and again, I approve the local authority plan for a gradual winding down of contact with the siblings. I approve the plan, which is for indirect contact between the parents and the siblings and ER.
60. This is a very sad conclusion to reach. However, having given this case very weighty consideration, I have found that I have no alternative but to make the orders which I have made. I therefore make a care order in favour of the A Local Authority and a placement order. That is my judgment.
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