England and Wales Family Court Decisions (other Judges)

In the Family Court
In the Matter of the Children Act 1989
And in the matter of S (A Child)

		20 May 2014

HHJ Swindells QC:

Introduction

1. I am concerned with the welfare of S who is aged 19 months. Her mother is BW aged 20 ('the M') and her father TW ('the F') is aged 23.
2. Care proceedings were issued on 26 November 2013 and placement proceedings on 24 April 2014.
3. For the threshold the local authority seeks findings that S suffered non accidental injuries in August 2013 which were inflicted by one or other of the parents; that the F has a history of violence including violence to the mother and that the mother has failed to protect S. The threshold is disputed by the parents.
4. As to placement, the local authority seeks a care order with a plan of adoption and a placement order; orders which are supported by the Children's Guardian but disputed by the parents. The mother seeks the return of S to her care and is supported by the father who does not put himself forward as a carer for S.

Background

5. On 16 August 2013 S was examined by Dr Babu, Consultant Paediatrician, at Lincoln County Hospital and was found to have suffered the following injuries:

a bruise over the upper part of her left ear on both the inner and outer aspect of the ear which was 2cm by 2cm ( 'the pinna injury');

a linear bruise over her left cheek measuring 4cm by 0.5 cm ('the cheek injury');

a bite mark over the right shin measuring 3 cm by 4 cm ('the bite injury').

6. The M gave Dr Babu the following history. She did not have any clue how the bruise over the left ear had occurred. The F had bitten S on the right leg whilst he was playing with S and did not mean to bite her. On 14 August, whilst pushing S in a pram, the pushchair came off the kerb and S hit her face on the bar. S did not cry. The M did not see any bruise at the time but the following day she saw a bruise on her left cheek.
7. Dr Babu in his report dated 19 August 2013 concluded that all three injuries were, on a balance of probability, non-accidental injuries. In his view, the pinna injury had probably been caused by S being smacked over the left ear or her ear being pinched with moderate to severe force. The bite mark was likely to have been caused by a bite with significant force. He did not think that the bruise over the cheek could have been caused by her hitting her head on a crossbar which was turned sideways when the pushchair came off the kerb. It would have needed significant force to cause the bruise. All children when they hit any object would scream and cry and develop the bruise quite quickly. It could have been caused by her head being deliberately forced onto the crossbar with her head slightly down.
8. The M had made her first police statement on 15 May 2013 in which she gave the following account. On 14 May she had put on a 'mardy' face' when the F had wanted her to do a sandwich. At this he grabbed hold of her hair, grabbed her face around the jaw area and threw her to the floor where he pinned her down, slapped her left thigh leaving red marks and bit her face on her cheek. She stated that he also hit S. He had said 'in a joking kind of way' that he was going to bite S if she did not stop crying. On 15 May she noticed bite marks on S's right shin and that her leg was swollen. The father had admitted to doing that and said that he did not realise he had bitten her so hard. There was also a big bruise on S's left ear. The father said he had not done it but she thought he had.
9. The mother made a further police witness statement on 16 August in which she stated that the bruising to S's ear was caused on 14 August 2013. She left S in the lounge with the father for about 10 minutes. When she returned to the room, the father pointed out her left ear which she saw was 'very swollen and very red and a bruise was forming'. She did not know how the injury to the ear had been caused. S also had some bruising to her left cheek, which she did know about, as she had bumped into a kerb with her in the pushchair by accident. S immediately started to cry and the next day she noticed a bruise. She went on to describe the occasion when the father had forced her to the floor and slapped and bitten her, whilst S was sitting on the floor, saw everything and screamed.' Her comment was that 'she sees him hitting her all the time'. The M had a bite mark on her right cheek which was caused by the F and some bruising and redness to her thigh where he had been slapping her (injuries which are shown in colour photographs at TB1A/G126-128).
10. The F in his police interview on 16 August 2013 said that the bruise happened to S's ear when the M had gone down a kerb. He did not see the bruise straight away but he saw a red mark on her eye. She was screaming and when he asked M 'why' she told him that it was because she'd gone down a kerb and she must have banged her head. When they got back home he noticed a massive bruise on S's ear.
11. As to the bite mark, he said that he was playing with her and was nibbling to make her laugh. He shouted to the M and accidentally his teeth which were round her leg bit her and 'it was bit too hard'. As to the mother's injuries he said that she got those when they were play-fighting.
12. A week later on 23 August the mother made a further police statement and gave a different account relating to the pinna injury, which now coincided with the father's account. She said that it had happened when S was in her pushchair. She pushed the pushchair down a high kerb and S managed to remove her arms from the straps. She could not see her because the hood was up but she heard her scream. She looked at her left ear and saw a red mark on the front of the ear which was also swollen. She thought that when she pushed the pushchair down S went forward and hit her head on the side of the pushchair or the safety bar. She then went on to withdraw the complaint she had made against the father on 15 & 16 August in relation to the injuries to herself because, as she put it, 'he had not done it'. She said that she had made the complaint because she felt pressurised by the police officers.
13. However, in her evidence to me she said that it was the retraction on 23 August which was 'the lie' and that the F had in fact assaulted her as she had described on 16 August. She said that she did not want to talk to anyone about the domestic violence and she did not like talking about her life. As she forcefully put it, '"They don't appreciate that I don't like being spoken to as if I'm shit". She did not want to be part of it any more and she just wanted to get on with it with S'. The F had admitted to biting S in play but, as she was not there, she could not comment and could not say whether there was violence or not. In order to accept that there was a violent act on a child she would have to witness it. She accepted that, in retaliation to her sister's partner kicking her, she had hit him back and caused him an injury which had left a permanent scar. The sister's partner had shown the scar to the Children's Guardian, saying that she had stabbed him with scissors. The mother attempted to play this down by saying that she did not stab him or go for him with the scissors but merely happened to have the scissors in her hand when she hit him.
14. In assessing the M as a witness, I gave full regard to the fact that she is a young woman who has only very recently turned 20 and was clearly suffering from the recent death of her father. Being scrutinised in a court setting was clearly an ordeal for her. She, however, responded by giving a truculent, defiant and aggressive performance with histrionic outbursts and tantrums. She was not willing to answer the difficult questions as to her changes of story and, although she swung back to her original evidence against the F in relation to the domestic violence, she refused to countenance that the F may pose a danger to S or to herself and was clearly content for him to have unsupervised contact as she regarded supervision as unnecessary. Her evidence was riddled with inconsistencies and the court has, therefore, to treat her evidence with caution.
15. The allocated social worker was criticised by Counsel on behalf of the M for not carrying out further targeted direct work with the mother following her completion of the Freedom Programme particularly aimed at supporting her in separating from the F. I am satisfied that the social worker had endeavoured to explore the issues of domestic violence with the mother during her parenting assessment but the mother had been resistant to giving any detail and, in effect, refused to talk as she demonstrated in her oral evidence by either shutting down completely and defiantly covering her face with a scarf or by shouting that she did not like being spoken to "like shit".
16. The Children's Guardian in her final analysis had found that the mother was very vague about whether she thought there was a problem with the father's behaviours and attributed his aggressive behaviour to steroid use. She told the Children's Guardian that his bite of her face was 'in excitement' and that she knows of other couples where this is common behaviour. The Children's Guardian in her oral evidence said that she had hoped that the M would benefit from the Freedom Programme but there was no evidence of her gaining any greater insight into domestic violence or the injuries to S. She could see no signs of movement and she found the M's distorted thinking "astonishing". She felt that she "had blinkered herself" to exploring any of the potentially dangerous aspects of the F's behaviour. Having seen and heard the mother, I could only share the Children Guardian's stark view and astonishment.
17. An important issue in the case has been whether the mother has in fact emotionally separated from the father, as she claims.There were sightings of her with a male in Lincoln during a week in February 2014 when she had disappeared from her mother's home, which raised the suspicion that she had been spending time with the father. She says that she spent that week with a friend, H, though she was not called to give evidence, and that the male was the father's brother. Family members had also alleged that she had spent an overnight with the F and been for a meal with him in April 2014. This evidence by itself, in my judgment, raises a suspicion but does not provide a sufficient evidential basis for a finding of fact.
18. There is, however, concerning evidence in the form of Facebook messaging during April of this year. On 25 April 2014 the message reads:

'Please don't think I am being ungrateful, T, because I'm not. I promise you now I'm not when read the text. Read it so many times on the train on the way home that I fell asleep but when I woke up and unlocked my phone and it was still on the text. It means the fucking world to me. Not anyone has offered to help me like this. You are the only person, T, that has and I'm so thankful that you thought of that, I really am, and that you would rather me have a house than you. I know if I do get a house I hope you will come and be with me there and I've been bidding on houses anywhere so I can get on quicker – I've bid on 10 and it hasn't' got me anywhere, it really hasn't, and I would be so 'thank you' if you did manage to get me the money to get the house, I really would. I mean all this from the bottom of my heart I swear on my Dad's grave and our amazing daughter's life I love you so much. You've got a massive heart and you are an amazing person and we need to stick together. We have got this far. We need to go the rest of the way…. Text me when you have read it - don't inbox back or it will go to J's (her sister's) email. (On 26 April) the houses in Collingham are too much a week but going to see for a council'

19. The M said that she had been 'set up' by her sister, who has vowed that she was going to do everything she could to make sure that the M 'would not get S back'. She said that she genuinely believed that her sister could have sent the message on Facebook in order to give the impression that she was still in a relationship with the father. She pointed to the fact that the Facebook page belonged to her 10 year old brother and that it was her sister who had provided the Facebook message to the local authority. She further produced a list of the bids she had made on council properties in the Mansfield area of Nottinghamshire which makes no reference to Collingham which is near Newark. The F in his evidence supported the M by casting doubt on the provenance of the message and highlighting the animosity between the M and her sister. However, when the Children's Guardian had put to him the allegation that a Facebook message had been sent to him, he had readily and openly confirmed that the mother had contacted him by Facebook and displayed none of the doubts, which he expressed in his evidence.
20. I am satisfied on a balance of probability that this messaging came from the M and reject the suggestion that this was 'cooked up' by the M's sister. In her evidence when she was asked what she had meant by her comment to the Children's Guardian: 'In general, she felt the F was supportive and treated her well…': she said that "he helped her move and no-one else did." This bore a striking similarity to the text of the Facebook message "not anyone has offered to help me like this….you are the only person, T, that has…" I have no doubt that these are the genuine sentiments which the M feels towards the F. It is far fetched, in my judgment, to imagine that her sister had the skill and sophistication to be able to anticipate, if fabricating the message, what turned out to be the mother's own views when she gave her oral evidence. It is further clear from the text of the message that she is drawing a distinction between council properties and privately rented properties and, therefore, the list which the M produced does not assist. It is plain from the language of the message that the M was responding to a text from the F, though he denies he ever contacted the M.
21. It follows that I am satisfied on a balance of probability that the M has not emotionally separated from the father but remains emotionally enmeshed with him. In this context I recall that she visited the F 13 times when he was in prison taking S with her, notwithstanding that she knew perfectly well, as I so find, that this was in breach of the written agreement with the local authority. She denied the visits until confronted with the evidence of the visits from the prison authorities.
22. The F was an arrogant, dismissive witness. His stance was to stick doggedly to his blanket denials of any violent behaviour to anyone in any circumstances save for bites 'in play' or 'in excitement'. I regret that the only flash of realism came in his recognition that he could not put himself forward as a carer for his daughter. He said that his mother hated him and it was this hatred which prompted her to make up concerns about his nasty and aggressive behaviour to her and his controlling behaviour towards S, which she maliciously communicated to a police officer. His sister, K, had wilfully exaggerated an incident when he pushed her against a wall for laughing in his face about the removal of S. She came out of the house covered in blood and he laughed at her because she had probably done it to herself to make him look worse.
23. He gave an extraordinary account of accidentally biting S when he was 'tickling her with his teeth.' He gave an implausible demonstration of a very gentle sideways movement with his upper and lower teeth. He gave an even more colourful account of the bite on the M's cheek. He said that they had got a prospect of a house and so he grabbed the M 'in his excitement' and bitten her. The severity of the bite can be seen on the photographs at TB1B/G127 & 128. He could not remember the bruise on S's left cheek. He continued to attribute the pinna injury to the pushchair incident though was wholly unable to account for the bruising inside the ear. He said that he had not put any pressure on the M to change her story to the Police nor was it his idea for the M to bring S to visit him in prison. He said that, given the M had previously retracted her complaints against him, she could not now be treated as a reliable historian when she reverted back to her original account of his aggression. He said he was not a violent, angry man and it was all unfair and unjust that he was facing his daughter being adopted because his family had made up these things against him.
24. His stance throughout was wholly implausible and I could not regard him as a witness as to truth in relation to any part of his evidence.

Threshold

25. The legal burden of establishing the facts rests on the Applicant authority at all times. The standard of proof is the ordinary civil standard of the balance of probabilities; neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof applied.
26. Determining the facts is a difficult task which must be performed without prejudice or pre-conceived ideas. The court is guided by many things including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and the overall impression of the characters and motivations of the witnesses.

Non accidental injuries

27. There is no dispute that S suffered the injuries described by Dr Babu. His clear view was that the injuries were non-accidental injuries. Dr Babu, however, did not give oral evidence (as he was out of the jurisdiction) and so his evidence was not subject to cross-examination, in particular in relation to the parents' common account of how the pinna injury was caused by her hitting her head either on the crossbar or side of the pushchair. The court, therefore, has to be cautious as to the weight to be attributed to his evidence.
28. In assessing the weight to be given to his conclusion that the injuries were non-accidental injuries, I have taken into account that his views represent the mainstream of medical opinion, particularly as to the inferences to be drawn from an injury on the outside and inside of the pinna, which is recognised as a very strong pointer to non-accidental injury. As to the pinna injury, I have taken into account the inconsistencies in the parents' accounts and the blatant change in the M's account to fall in line with the father's account. I have also had regard to the fact that their common account failed to explain the bruising inside the ear, which we see in the photographs at TB1A/G124 & 125. I am fully satisfied, on a balance of probability, that the pinna injury was an inflicted injury caused by a smack over the ear or her ear being pinched with moderate to severe force.
29. Dr Babu did consider the pushchair incident in relation to the cheek injury and rejected this account because insufficient force would have been generated to cause the bruising. I accept his opinion and I am satisfied on all the evidence, applying the balance of probability, that this too was an inflicted injury which required significant force.
30. As to the bite, Dr Babu did not have the benefit of witnessing the F's demonstration of 'tickling with his teeth' but he was clear as to the significant degree of force required to produce such a bite. Leaving to one side that the notion of 'tickling with teeth' is plainly a preposterous one, it was apparent to me from the father's account and from his deliberately feeble demonstration that this could in no way account for the significant force required to cause the severity of the bite. Again I find, on a balance of probability, that the bite mark was a non accidental injury inflicted with significant force.

Perpetrator issue

31. In Re S-B (Children) [2010] 1 FLR 1161 the Supreme Court held that in a perpetrator case there was no obligation to decide who caused the harm to the child. Unlike a finding of harm, finding a perpetrator, which might be difficult for a judge even on the balance of probabilities, was not a necessary ingredient of the threshold criteria. Judges should not strain to identify perpetrators if the evidence is not such as to establish responsibility on the balance of probabilities, notwithstanding the benefits of identifying an individual perpetrator, if possible. It is still, however, important to identify the pool of perpetrators. If the evidence was not such as to establish responsibility on the balance of probabilities, it should, nevertheless, be such as to establish whether there was a real possibility that a particular person was involved. When looking at how best to protect the child, the judge should consider the strength of that possibility as part of the overall circumstances. With regard to apportioning likely responsibility between possible perpetrators, judges should be cautious about amplifying a judgment in which they have been unable to identify a perpetrator: 'better leave it thus'.
32. The F accepted responsibility for the bite mark to S's leg but attempted to minimise this by coming up with a ludicrous explanation which I have entirely rejected. In my judgment, the evidence is overwhelming that the F was the perpetrator of the bite mark on S's leg, and I so find on a balance of probability. This finding becomes chilling when one recalls the M's evidence (before it was tainted by collusion) of the F threatening to bite S if she did not stop crying.
33. As to the pinna injury, although I have to be cautious as to the M's credibility given the level of inconsistency in her evidence, nevertheless her early account, before she blatantly colluded with the F and aligned herself with the pushchair story, does, in my judgment have the compelling ring of truth when she described leaving S with the F for 10 minutes and on her return S had 'a very swollen and very red ear with a bruise forming.' In my judgment the balance of probability strikes down heavily in favour of a finding that it was the F who was responsible for the inflicted pinna injury.
34. Having found the F to be the perpetrator of the bite mark and pinna injury, Counsel on behalf of the M asks this question in relation to the cheek injury: is it probable that within such a short space of time S suffered injuries inflicted by the father and suffered injuries inflicted by the M? I am invited to answer in the negative and exonerate the M: see Re M (A Child) [2010] EWCA Civ 1467 where a similar question was posed and answered in the negative in circumstances where there was no iota of evidence to cast doubt on the mother in the case.
35. Into the positive scale goes the M's good attachment to her daughter. Sadly, however, there is also evidence in this case which casts serious doubt on the M and has to go into the negative scale. This distinguishes the case from Re M where there was no negative evidence. I cannot ignore that the M tragically demonstrated throughout the course of her evidence her volatility and aggression. Her capacity for retaliatory aggression was further evidenced by the incident when she stabbed her sister's partner with the scissors causing him a scar. Nor can I ignore the inconsistencies in her accounts. In the light of this significant negative evidence, I can only answer the above question in the affirmative. The evidence gives rise, in my judgment, to a real possibility that the M was involved and I cannot exclude her from the pool of perpetrators.
36. There is, in my judgment, also a real possibility that the F was involved in the perpetration of the cheek injury, given my findings in relation to the other non-accidental injuries.
37. In the light of the approach in Re S-B I do not propose to strain to identify the perpetrator of the cheek injury but leave both M & F in the pool of perpetrators.
38. In any event there was a gross failure on the part of the M to protect her child not only in failing to seek timely medical treatment for S's injuries but also in retracting her statements of violence in plain collusion with the F and in her minimisation of the violence due to her continuing emotional enmeshment with the F.

Domestic violence

39. The F arrogantly uses violence to control others. I am satisfied on the M's evidence (before retraction) to the requisite standard that the F used violence to the M as particularised in the Threshold Document which appears at TB1A/12 at page 13. In the absence of direct evidence for his M and sister, I do not make the findings relating to violence perpetrated against them.
40. I conclude by finding that the F poses a serious risk to his daughter, S.

Welfare Evaluation

41. In carrying out the welfare evaluation, the court's paramount consideration is the welfare of S and in determining where her best interests the court has to have regard to the welfare checklists in the Children Act 1989 and, in particular, the Adoption and Children Act 2002.
42. As the plan is for permanency outside the family, it is necessary to go back to first principles which the judge must always have in mind at every stage of the process: Re B-S [2013] EWCA Civ 1146; Re K v London Borough of Brent and others {2013] EWCA Civ 926; Re P (A Child) [2013] EWCA Civ 963, Re G ... A Child) [2013) EWCA 695 and In the matter of Re W (A Child) [2013] EWCA civ 1227.
43. The starting point is Article 8 of the European Convention, the right to respect for private and family life. The overarching principle is, as explained by Hale LJ ( as she then was) in Re C and B [2001] 1 FLR 611, para 34:

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

44. 'Necessity' sets a stringent and demanding test, as was spelt out by the Supreme Court in In the matter of B (A Child)(Care Proceedings) [2013] UKSC 33. Care orders or orders contemplating non-consensual adoption are 'a very extreme thing, a last resort, only to be made where nothing else will do and to be made only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare.'
45. Three important points were emphasised by Lord Neuberger in Re B

(i) Although the child's interests are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents or at least one of them, unless the overriding requirements of the child's welfare make that not possible.

(ii) The court must consider all of the options before coming to a decision and it is, therefore, necessary to explore and attempt alternative solutions.

(iii) The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer.

46. The M seeks to care for her daughter. Into the positive scales must go the mother's good attachment with S, her ability to provide basic care, her commitment to positive contact notwithstanding the travel involved, her completion of the Freedom Programme and the thought and care she put into producing a 'Memory Book' for S.
47. Into the contrary scales, however, must go the fact that S suffered physical harm whilst in her care, that she utterly failed to protect S and has shown a complete lack of insight into her daughter's paramount need to be safe. The M did not demonstrate any understanding of the effects of domestic violence, notwithstanding her participation in the Freedom Programme but, on the contrary, chose to hide well inside her carapace of denial. This M, sadly, has a long journey to undertake before she becomes a safe parent and currently she has barely stepped on the road.
48. My attention was drawn to the Court of Appeal decision: Re E [2013] EWCA CIV 1614 where adoption was not considered as proportionate in a case where the mother was seen as a loving and capable mother, where the child had a secure attachment to her, where there were no adverse findings against her and where the local authority had failed to assist the mother in separating from the father. This is, sadly, a very different case. Whilst it is not disputed that the M is a loving mother to whom S has a secure attachment, the court has made serious adverse findings against her, which cannot be overlooked. Further I am satisfied in this case that the local authority did what they could to assist the M but were faced with a M who buried her head deep in the sand and refused to lift her head even a centimetre out of the sand to engage in the serious challenges she was facing.
49. Applying the welfare checklists:

(i) S is not of an age or understanding for her wishes and feelings to be a determinative factor, though I give weight to the good attachment which she has to her M.

(ii) Her particular needs, however, require a permanent and settled home which provides a safe and secure environment which meets all of her needs and which will enable her to achieve her full potential as an individual. Any further delay will be inimical to her welfare interests.

(iii) There will, of course, be lifelong losses resulting from her ceasing to be a member of the original family and becoming an adoptive person including the impact upon here sense of identity and self esteem. On the other hand adoption brings the advantage of life long committed and enduring relationships with the prospective family members.

(iv) S has suffered significant physical and emotional harm, whilst in the care of her parents and there remains the potent risk of further harm were she returned to either parent's care and were again suffer the vicissitudes in her life resulting from the parents' volatile and aggressive personalities and lifestyle. I have found that both parents pose a risk of harm to S. In the case of the F this is a serious risk of harm, from which the M has utterly failed to protect S. There is no evidence that either parent has the slightest insight into providing her with an environment which is free from physical or emotional harm. It is the echo of S screaming as she witnessed her F using violence to her M which still resonates in this case.

(v) Whilst the benefits of being brought up by one or other of the parents are hugely important and the parents both keenly wish that S is brought up within the birth family, the risks involved in the parents' care are significant and far outweigh those benefits. The value in any relationship with her parents can in my judgment be sustained through the proposed indirect contact and the important life story work.

50. Whenever possible consistent with her welfare needs the child deserves the incalculable advantage of an upbringing within her natural family. It is only where there are unchangeable deficiencies of such dimension that the child's safety and proper development cannot be assured within the family of origin that a judge is compelled to consider alternative placements elsewhere. Here, very sadly, I am sorry to say that there is not the slightest sign that within a reasonable timescale that the parents would be able to acknowledge and confront the scale of what has happened to S. The single-most important factor is whether the parents may develop their understanding of their shortcomings so as to guarantee for the future S's physical and emotional safety. Very sadly I have to conclude that they cannot.
51. Weighing and balancing the welfare factors, I have been driven to the conclusion that the overriding requirements of the welfare of S, first, justify intervention in the family and the separation of S from her parents and, secondly, render solutions which enable S to be brought up by her natural parents impossible.

Placement Option Evaluation

52. In determining the best placement option for the child, a global holistic evaluation must be carried out which assesses the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each option.
53. In considering all the options, the court should adopt the least interventionist approach: Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760; the 'no order' principle encapsulating the Strasbourg principle of proportionality.
54. In In the matter of W (A Child) {2013] EWCA Civ 1227 Ryder LJ said that the court must evaluate:

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

(b) What is the welfare evaluation as to the best option among those available, and

(c) What orders are proportionate and necessary, if any.

55. In relation to S, whilst taking full account of the enormous benefits for children in being brought up by one of their birth parents, I have nevertheless evaluated as too high the risk of significant harm were she returned to the M's care because of her inability to prioritise S's needs above her own. Even were S to be placed with her M under the auspices of a care order, the package of protection which the sharing of parental responsibility would bring would not, in my judgment, be sufficient to safeguard S from the deficits in either parents' parenting.
56. There are no other family members who can care for S. Viability assessments of extended family members were undertaken but, unfortunately, all proved negative and no family member has sought to challenge the assessments.
57. The overriding necessity encapsulated in the welfare evaluation, therefore, drives the court to consider placements outside the family. The permanency options are long term fostering or adoption.
58. This leads the court to consider the material differences between fostering and adoption as was recognised by the Court of Appeal in Re V (Children) [2013] EWCA civ 913.

(i) Foster care is a less interventionist option in that it falls short of severing the legal ties of the birth family and is more likely to provide a vehicle for maintaining contact with the natural family. Where a child is in the care of the local authority, the starting point is that the local authority is obliged to allow reasonable contact with the parents under s 34 of the Children Act 1989. Once an adoption order is made, the natural parents generally need leave. Whilst parents may apply for the discharge of the care order with a view to getting the child back, once an adoption order is made, it is made for all time.

(ii) Adoption, however, makes the child a permanent part of the adoptive family to which she fully belongs throughout her life. To the child, therefore, adoption is likely to 'feel' different from fostering. Adoptions do fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer, whose commitment may change over time. Routine life is different for the adopted child once he or she is adopted, as the local authority has no further role in the child's life. This frees the child from statutory intrusions.

59. In relation to S, adoption has the disadvantages of severing legal ties with her parents and terminating direct contact with her birth family with implications for her sense of identity. On the other hand, adoption brings the advantages, first and foremost, of a permanent family of which she will become a full member throughout her life and, secondly, she will be freed them from statutory intrusion in her life.
60. In my judgment, the balance in the case of S strikes down firmly in favour of making a care order with a plan of adoption and a placement order, which on my welfare evaluation are the best options for permanency for her. Adoption will provide her with a greater sense of permanency which I am satisfied is her overriding welfare need justifying intervention in the family. I am further satisfied for the reasons above that such orders are necessary and proportionate.

Dispensing with consent

61. However, before making the placement orders I must consider the issue of parental consent.
62. In relation to adoption, s 52(1)(b) of the Adoption and Children Act 2002 provides that the consent of the parent with capacity can be dispensed only if the welfare of the child 'requires' this. 'Require' here has the Strasbourg meaning of 'necessity'; that is the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable. This is a stringent test.
63. For all the reasons I have set out in detail above, I am clear that the stringent test is satisfied and I find that the welfare of S requires the dispensation of parental consent.

Conclusion

64. In S's best welfare interests I, therefore, make a care order and, being fully satisfied as to the arrangements for contact, a placement order.