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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Cornwall Council v M & Anor [2014] EWFC B184 (12 December 2014)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B184.html
Cite as: [2014] EWFC B184
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Case Number : TR14C00554

IN THE FAMILY COURT AT TRURO

Courts of Justice
Edward Street
Truro
TR1 2PB
12th December 2014

B e f o r e :

HIS HONOUR JUDGE VINCENT
____________________

BETWEEN:
CORNWALL COUNCIL
 Applicant
- and –

M (1)
R (2)
 Respondents

____________________

Transcribed from the official tape recording by
MENDIP MEDIA GROUP
Rockeagle House, Pynes Hill, Exeter, Devon, EX2 5AZ
Telephone : 01392 213958 Fax : 01392 215643
Email: ttp@mendipmediagroup.com

____________________

Julie Buckley represented Cornwall Council
Melanie Davey represented the Mother
Andrew Lobb represented the Father
Katie Clixby represented the Guardian
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    HIS HONOUR JUDGE VINCENT:

  1. In this judgement the children are J and K while their mother is M and their father R.

  2. J is two and a quarter, while his sister, K is four and a quarter. Those children's parents are M and R. The children are in foster care awaiting the outcome of this final hearing of care proceedings about them. The local authority care plan is that they be adopted outside of their birth family and should remain together as a sibling unit.

  3. The circumstances that I will briefly relate show that the mother to the children, M offers no active resistance to that outcome. That lack of active resistance has morphed, in recent times, into actual support for the local authority care plan and associated placement order application. It is an outcome, however, that has been resisted by R, the children's father, who seeks to care for the children himself.

  4. Proceedings began at the very beginning of October this year. M has had three previous children placed for adoption and J and K were the subject of child protection plans from November of 2013 onwards. There were issues around neglect, domestic violence between the parents and M suggesting that K might have suffered sexual abuse at the hands of her father.

  5. The parents split up apparently in April 2014 and, in short order, M took the children to live in Durham. She did not ask anyone and did not engage with the local authority before so doing. On coming back to Cornwall, M moved in with R's mother in very impoverished conditions. Police, on seeing those conditions, gave her an ultimatum that unless she moved to accommodation provided by the local authority, they would exercise their police protection powers to remove the children into care. Move she did and the next material event was that J suffered a serious accident whilst in his mother's care when she was incapable of supervising him properly as a result of her own abuse of substances.

  6. She then became involved with a man called CS who, for various reasons that I do not need to detail now, represented an extreme risk to the children and a risk to her. She exposed the children to his presence.

  7. On 23rd September of this year, she ceded care of the children to a friend, who was unsuitable as a person to protect them and from that point onwards she has effectively abandoned the children. She has not seen them or engaged with the local authority in an attempt to become their parent again. In essence, it is a case of abandonment.

  8. From the date of the parental separation, at least in the eyes of the local authority, R dropped off the scene. At the inception of the care proceedings on 1st October, I think it was, the local authority simply did not know where he was. It has since become clear that he was, for a time, leading a quite itinerant lifestyle.

  9. Following the issue of proceedings, the children were removed from the care of the friend, placed together in foster care and that was of course sanctioned by the court. The proceedings were timetabled to this final hearing.

  10. R says that on about 1st October, as those proceedings were commencing, M disclosed to him that the children were in fact in care, which of course was so. He did nothing to contact the local authority or the court at that point.

  11. On 28th October, social workers tracked him down to his present home in Lostwithiel. He was seen, he was asked to attend a meeting with the local authority to explore the future for the children and he said that he would consult a solicitor and would then contact the local authority. He failed to do so. He later gave the explanation that he did not want to speak to Social Services because of his own experiences of them.

  12. Having heard nothing more, the local authority concluded its care planning for J and K and published care plans for adoption. They filed those, in fact, on the day of the issues resolution hearing, being 24th November. Neither parent attended that hearing. This final hearing was already fixed, but I directed an additional final hearing of one hour's duration on 28th November and said that any parent intending to oppose the care plans must then attend.

  13. On 28th November, R attended with his solicitor, seeking assessment. It thus became impractical to treat that date as a final hearing, but I was not prepared to let go of this final hearing slot and in consequence I countenanced at least some level of assessment taking place in the interval between 28th November and this hearing. My thinking was to put myself in the position, if possible, to determine whether R represents a realistic option of care for the children. This is important, because current jurisprudence makes clear that I must holistically assess all of the realistic options; options that are grossly improbable or fanciful can be appropriately discounted.

  14. Pursuant to that case management plan, the local authority in fact had been able to have three sessions with R by the time this final hearing has come along. The first of them took place just before 28th November, namely on the 26th. Adam Wolfe, the social worker in the case, has helpfully provided a position statement which deals with the local authority's account of that meeting and the subsequent further two meetings that have taken place.

  15. At the meeting on 26th November, which took place with Mr Wolfe and another social worker and also, I think, R's grandparents present, R explained that he had not responded to the invitation to attend a meeting earlier with the local authority, because he had kept quiet and did not know what was going on. He had not previously intervened or taken action, as he thought that the children's mother was engaged in fighting for them. He also acknowledged that she had indeed told him that the children were in care.

  16. When asked what his wishes and feelings were about the children, he suggested that he wanted to oppose the local authority's decision to place K and J for adoption and wished to be assessed as a suitable carer and he asserted that he had a family network that could support him. He went on to say that he was planning to undertake training to become a chef; he had a friend who could offer him a training position in a local restaurant, who was just waiting for the level of work to pick up. He was currently unemployed. When the social worker questioned his accommodation situation, he acknowledged that his present bedsit accommodation in Lostwithiel was unsuitable as a home for his children; it was simply too small. It was acknowledged that he would have to find a larger home.

  17. He went on to explain that he was still using cannabis, although he had cut back on its use and now used it only every few days during the evening. On issues of anger management, which had been perceived as a problem with R, he acknowledged that he sometimes gets frustrated and angry. He revealed that he has personal debts of £2,000 or possibly somewhat more.

  18. He suggested at one stage that K and J could be cared for by his grandparents and that one of his sisters, namely either T or A, could also provide support. R's grandparents who, as I have mentioned were present, acknowledged that K and J were very energetic and could be a handful and said that they might find care of them challenging and that they would need help.

  19. R then advised that his sister, T has a partner and lives independently and that his other sister, A lives with his mother. He was challenged as to whether either sister could provide a clean and suitable home and had to confess that he had his own doubts about that. That in a sense, certainly in respect of one of the sisters, harks back to the anxieties expressed by the police when they threatened the imposition of a police protection order at the grandmother's home. R described his own father as having been abusive to him.

  20. The second interview with R took place on 1st December. Within that interview, he explained that he had been itinerant since about June and during that period he had spent two periods actually homeless. He had been formally, as he put it, at his current address only since 13th November. The social workers again asked why he had not earlier responded to the invitation to attend a meeting with the local authority to talk about his children's future and this time he gave a rather more expansive explanation. He said that when he last saw his children in Durham, he was told by the local authority there that, because of domestic violence in the family, he was banned from seeing his children. He said that he signed an agreement to this effect and he then produced a copy of the agreement that was unsigned at the time. He explained that it was a copy.

  21. He went on to talk about his long-term friendship with C S, M's current partner, and he said that CS had himself been to prison for domestic violence and that he was a character who tended to use violence to sort out his problems and that he, R, was worried about what CS might do to him. On this same subject, he acknowledged that he had previously received death threats from others whilst he was living in Launceston.

  22. Asked to think about specific plans for his care of K and J, he said he would find new accommodation suitable for the children, would place them in school and nursery and would find work that he could organise around the children's need and he went on to describe his support network, which included K and J's godparents, and again reference to his sister, T.

  23. When past concerns around domestic violence, substance abuse, poor quality of care that he and M had provided to the children were put to him alongside his predisposition to anger and his difficulty engaging with professionals, the social worker asking him what would be different for the future if he had care of the children, he said that he could not say that he was a different person, but that now his head is focused on the children.

  24. Within further discussion, he explained that he wanted to say yes to care of the children, but he acknowledged he would need help. He said that his initial attitude was to walk away when he received the first contact from the local authority. He said that he would like to get them back somehow, but that he did not, himself, like fighting. He acknowledged that he did not know what to plan and he did not want to set himself up, as he put it. He seemed to suggest that he finds things for free and does not like money, which he finds a depressing topic. He acknowledged that he has debts and that he has health problems as well. He revealed an income of £132 per week from benefits and said that he spends £20 of that on cannabis. It appears that he has spent most of his adult life on benefits.

  25. On the health issue, at that meeting he revealed that he has an injured hip and the possibility of testicular cancer. He said he had a scan in April or May which revealed some concerning results.

  26. When it was explained to him that allegations of sexual abuse of K had been levelled at him and M had reported that he had taken K into her bedroom on her own and shut the door, after which K revealed that Daddy had hurt her, he admitted that he indeed had taken K into her bedroom on her own and shut the door and said that this was in order to discipline her. It appears that K has described to her foster carer a situation where it appeared that she had seen her father in a sexually aroused state and R explained that K had probably seen him in the shower.

  27. The final interview session took place on 3rd December. Adam Wolfe explains in his position statement that the primary purpose of that interview was to have given R a breathing space after the earlier sessions and an opportunity of reflecting on them and then himself asking questions. During that last interview, R spoke about his situation and acknowledged that he had not previously wanted to speak to Social Services. He said that a few weeks ago he had been prepared to walk away, but on learning what was happening with the children, which I interpret as being the adoptive care plan, he chose to stand by them. He acknowledged at that point that his relationship with some family members was a conflictual one and commented that he does not "do family".

  28. So far as his own future was concerned, he suggested that he was at a junction. He said that he did not know in which direction he was going, but only time would tell. He acknowledged that he can become angry and volatile when talking to social workers and gave his own experience of being in foster care as the reason for his anger.

  29. Now today, he bravely came into the witness box. He is an almost charismatic character with a certain laddish charm about him. He speaks with engaging candour. He seems not to give too much thought to whether what he says is of advantage or disadvantage to him and he presents the picture of telling it as he sees it. I say that, not in any way to suggest that I doubt his veracity, because I do not. I think he was plain in his evidence that he certainly meant to tell the truth throughout. Whether what he told me was objectively true in every respect is a quite different issue, but one can understand why it is relatively easy to become beguiled by him.

  30. The concerns that have been identified were explored fully within his evidence and it seems to me that the evidence that emerged lent quite a lot of further information and insight to the issues around his prospects as a potential carer for the children. I am not going to touch exhaustively on the list of those concerns, but I deal with a few. His anger was manifest during the hearing. He comes across in no sense as a stupid person and I have no doubt that he was alert to the fact that anger was an issue. Nonetheless, in the environment of a courtroom, he was fairly easy to rouse to anger. It did not become physical; it was manifest in his tone and an abruptness, a sharpness in that and what it tells me, and indeed what, to a degree, he acknowledges, is that he does have issues with anger. He has a relatively short fuse and harmony for him depends on things being how he wishes them to be.

  31. Another concern is around his engagement with professionals: I think the picture became rather clearer for me on that as well as a result of his live evidence and the noteworthy exchanges that took place really started in the context of his relationship with Adam Wolfe, the children's social worker, and it appears from R's lips that Mr Wolfe put a foot wrong by addressing head-on the issue of R's experience of the care system himself. Whether Mr Wolfe used the best phraseology is something I do not really have a particular view about, but what he said about R putting that behind him or forgiving the care system and moving on prompted something, well, it was not just close to anger, it was actual anger in R and poisoned the relationship between him and Mr Wolfe. That is all it took, just that proposition.

  32. As the people in court will have heard, I probed a bit further with him at that point and asked him whether that might happen again with other professionals and, in particular, I probed what he would do in the event that he was challenged over his care of the children or his views about their care.

  33. During the course of the hearing, it became clear that his response to that was that he would question the advice. There was no hint that he would automatically do what was being suggested to him or accept the challenge. He would question that advice. If he did not like the answer, he would seek legal advice and there was a very clear sense that he was spoiling for a fight with the local authority over any area of conflict between him and them.

  34. I report that view of him, not as a criticism of him, because he does have that baggage which he is carrying, but I observe that there seems little prospect of him being able to put that baggage down. I think he is saddled with that and that it would probably take some quite extensive therapeutic input to help him move past that.

  35. His health was a worry. It had actually not been addressed in any meaningful way, I think, at all in his witness statement, but I asked that that be dealt with in his live evidence and it was revealed that he had had a scan. He reported, rather worryingly, the conversation with his GP, who plainly, if R's recollection of it is accurate, was worried about where R was emotionally at the time of that consultation, which would have been April or May, I think, and seems to have felt that he would not be ready to deal with the news that the GP was poised to reveal. The GP commended to him the idea that he should report back in a few weeks' time, when they could have discussion about the results of the scan. The results of the scan do not exist in a vacuum; they exist in the context of R having gone to the doctor in the first place with testicular pains and, as he reported to me in evidence, still having them. It is an area of his health that he has still not felt emotionally able to further explore. He has made another appointment with the doctor, but he is waiting to take that further. It seems that he has made that appointment more because he realised the imminence of this final hearing than for any other particular reason.

  36. Cannabis use is still there. That was manifest from his evidence. What he was telling me, which in sense was new, was that between his last session with Mr Wolfe and today, he has actually determined that he is going to give cannabis up. Whether he has the capacity to do that, particularly with his health issues, particularly with the additional stresses that either further assessment or alternatively care of the children would impose upon him is a quite different matter. He has taken cannabis, so far as I can ascertain it, at a high level for most of his adult life. It is not easy to beat and I am unsure that he has the motivation to do it.

  37. Other issues that were tackled in his evidence: he amplified the information about his support network. There sound to be some good-hearted people out there, non-family members who would be willing to help him. They are latecomers to the ball, as it were, not meaningless as a result, but probing about that revealed that their function is perceived to be support in the loosest sense, certainly not care, other than in a babysitting role, possibly some financial help, but it does not mask the fact that this young man came across to me as quite isolated. He has a dysfunctional family background and he is still in a difficult place.

  38. Housing: Miss Cutts, the guardian, was very forgiving of the housing situation; I recognise that. I do recognise how difficult it is for single people, even harder probably when you are a male single person to secure housing and I would not hold it against him for not having already secured housing that would accommodate the children and himself.

  39. What I do hold against him or raise as a significant question mark about him is his lack of proactivity. When one probes to ask him what he has done about it, what enquiries he has made, one gets an answer that reveals practically nothing. When one is looking for a plan, there is nothing thought out very well. The plan in this instance was, "I'll get in touch with Ocean Housing. There is a vacant property in Lostwithiel and another, I forget where, it may have been Fowey somewhere." There is no thought, he may not have even known the system about waiting lists, not a sniff of insight into the fact that it might actually be quite hard to secure housing and the last brick in the wall is, "I'll get hold of my MP," which in a sense resonates with this sort of victimhood that he tends to operate under.

  40. So ill-preparedness to take on all of the responsibilities that being a parent involves, and I say that not as a criticism, but it is the impression he made on me and confirms in my view that he is still emotionally in quite a difficult place and far from ready to undertake the care of the children.

  41. I think that is probably all I want to say about his evidence and I move on to briefly deal with the evidence of Penny Cutts, who very helpfully went into the witness box. She had met him before and she thought he showed some promise. I said earlier, and I repeat, I do not have the slightest criticism of the guardian in this case for contending for further assessment of him and indeed I commend her for her open-mindedness in hearing the evidence during the course of this morning and changing the provisional view that she had come to.

  42. She heard that evidence. Whilst she acknowledged that nothing that could be described as a full parenting assessment had happened and that to undertake such an assessment would probably involve a four or six-week period with perhaps four face-to-face interviews, then some reintroduction to the children possibly. I think the sense that I got from her evidence is that she felt that quite a number of the gaps in what is known about R as a potential carer had been filled in through, first, the process that had been undertaken by Mr Wolfe, but secondly by actually examining R's evidence from the witness box.

  43. She acknowledged that there was more than one would want to look at, in particular the early life experiences of R which, by the sound of it, would be a complex piece of work, but her overview at the end of her evidence was that although it would be helpful to have the information that would flow from such an assessment, she saw the prospects of the assessment proving positive at the end as being slim and she expressed worry about the impact on the children of that happening. She acknowledged too that if everything went as well as one could anticipate it could, then it would be a number of months before one could contemplate placing the children with R with anything but certainty that he would then be successful in meeting the children's needs.

  44. When the hearing began and I defined its purpose, there was a consensus that there was little point in hearing live evidence from the social worker in the case. I specifically referred to long-term foster care and no-one quarrelled with my suggestion that it did not represent a realistic option for consideration for children of this young age.

  45. If I could come back to the legal framework within which these proceedings take place, there is a threshold document put forward by the local authority which I am not going to go through. It is a mercifully brief document and it records facts that I think, on the evidence base that I have read, are unassailable. Do they meet the threshold test? Yes, emphatically.

  46. That hurdle being surmounted, I go on to consider what, if any orders are needed to meet the needs of J and K. Doing that, I make their welfare my paramount consideration. A quick examination of the welfare checklist: in the context of this case, viewed alongside the checklist and paramountcy principle under the Adoption and Children Act is a worthwhile, indeed necessary, exercise. Wishes and feelings, I think, fall away as a relevant consideration, given the ages of the children. Adults are going to have to make their decisions for them whilst they remain as youthful as they are.

  47. The children's needs is, I think, a highly relevant issue. We did not hear much live evidence about this, but whilst I am unable to attribute some of the difficulties that the children present, K in particular, to anyone in particular or any event in particular, the fact remains that it is the case that these children present with some behavioural issues and whilst we do not have much evidence about K in particular and her recent use of language and other behaviour, we are getting a picture that these children not only have conventional needs, but probably have enhanced needs. They are going to need really very capable care. They are going to need very consistent care. They are going to need attachment figures who have the ability to manage their behaviour, give them probably reparative care and do it consistently over time. So their needs are great in that sense.

  48. The next item on the checklist is the effect on the children of any change in their circumstances. They cannot stay in foster care for the rest of their minority; it would not be right and they have got to move on. The effect on them depends on the ability of the person to whose care they move. If that person were a parent who lacked the ability to meet their needs, there is a strong prospect of re-traumatisation, further damage and, frankly, dysfunctional lives. If the person who cares for them has the ability to meet all their needs consistently, there is, I would hazard, no particular need to be over concerned.

  49. The next item on the checklist is their age, gender and other characteristics. Age is a consideration here. I think it is fair to say that, first of all, they are within a window of time within which they might be expected to be successfully placed for adoption. I view that window of time in the context that they have sustained disadvantage, that they have got some issues that need to be addressed and that therefore the process of preparing for and matching them with prospective adopters might take longer than might be the case with a very young baby. So the point that falls to be made is that there is a narrowing window of opportunity for them.

  50. They have some half-siblings, this was a point made by Miss Davey on behalf of their mother, with whom it would perhaps be helpful, albeit not a current priority, for them to have the opportunity of some form of relationship, but their age is the critical factor. Time is going on for them. This case involves an element of urgency about it and also important, the fact that they are siblings, they need to be together. There is nothing in the case that would indicate that that is not the right outcome for them.

  51. Next item on the checklist is any harm suffered or risked for the future. I think they have suffered harm. I think that is plain from the evidence base that I have got, but I am more worried about harm risked for the future. I am more worried about the difficulties that they have becoming compounded. Children of four and two are capable of having their lives changed by good care. Children who are re-traumatised at those ages and receive poor care are capable of having their lives ruined.

  52. Then I come to the capability of the available people who have to be considered of meeting the children's needs. That brings me full-circle back to the analysis that I have carried out in respect of R. I say again that he is a good-hearted person who wants what is best for his children. I harbour nothing more than a judicial hunch that he himself realises that he cannot do it, but he was not giving that away and I do not blame him for that for one moment, but this is not for me a finely-balanced decision. When I look at all of the dimensions of parenting that a parent needs to have in order to meet the needs of children of this age then, love apart, he has not got any of them. He is deficient in every single one.

  53. It is very sadly a case where pretty much every problem you can envisage with a parent comes together in him. Some of the problems are bigger than other problems, but it is a set of problems that, taken together, present a huge problem in fixing them. I am not sure that they can be capable of being fixed on any sensible timescale. For that reason, I discount him as not a realistic possibility for care of the children. If he could get there very quickly, and it would have to be very quickly, it might be different, but I do not see a start to solving his deficits.

  54. I touch upon long-term foster care, lest anyone should suggest that it should have been examined in more detail and has not been. Long-term foster care for children of four and two involves the local authority being involved in their lives for the rest of their minority, for 15, 16 years. It involves them being the subject of regular Child in Care reviews. It involves social worker visits. It involves, very often and in fact more often than not, foster care changes of placement for various good reasons during the course of their minority, and the upheaval and disruption that occurs as a result. It is a very poor, albeit sometimes necessary, second-best to a new family unit. These children deserve better than that. They need more than that and it is for that reason that I discount long-term foster care as an option for them.

  55. Adoption is very sadly, in the absence of anyone else who can deal with their care, the last man standing and for that reason I approve the adoptive care plan.

  56. The arrangements in respect of contact are sensibly devised and there is no room for a direct face-to-face contact relationship with parents in this case, sadly, and R was child-centred enough to recognise that it would not necessarily be to the advantage of the children in his case.

  57. So there will be a care order to Cornwall Council in respect of each of the children. I approve the care plans. With that eye on the welfare checklist that I mentioned within the Adoption of Children Act, with its focus on birth-family relationships, it does not alter the proposition that adoption is still the last man standing and that therefore the welfare of the children demands that I dispense with parental consent, which I go on to do.

  58. I just pause for a moment. I think, whilst I acknowledge that M has indicated her support for the local authority care plan, she obviously has not given official consent and I have to dispense with her consent in that context, but I make it plain that she has offered support for that plan, but I dispense with her consent and that of R and proceed to make placement orders in respect of each child.

  59. I give the local authority permission to change their surnames on placement for adoption, but not before and I give directions for detailed public funding assessment of the costs involved, both parents and both children.

  60. The only other thing that is on my mind, we do not always do this, but these children who will, we hope, find their way into the hands of adopters, both in years to come, the children, and right now prospective adopters could probably profit from knowing why this happened and I would invite agreement that I might direct a transcript of this judgment. I give the local authority permission to disclose it to the prospective adopters of these children and give that direction at shared expense.

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