England and Wales Family Court Decisions (other Judges)

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

 

IN THE FAMILY COURT sitting at Watford

Before His Honour Judge Peter Wright

 

In Re AA and BB (Minors)

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                                                            JUDGMENT

of His Honour Judge Wright, handed down the 23 June 2014

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Ms Kate TOMPKINS on behalf of the Local Authority

Ms Frances ORCHOVER on behalf of the First Respondent mother;

Ms Kelly WEBB on behalf of the Second respondent father;

Ms Jane HEPBURN on behalf of the Third Respondent father;

Mr Paul MURRAY on behalf of the Children’s Guardian

 

                                                JUDGMENT (23 June 2014)

 

1                    This judgment is given following the final hearing of Care and Placement applications brought by the Local Authority, relating to the youngest two children of Mrs B, the mother. Mother has been represented by Ms Frances Orchover. The children are AA born in 2002, aged 11, and BB born in 2009, aged 4 ½. The application brought by the Local Authority also included the children’s elder brother CC, born in 1997, now aged 17. The application relating to CC was disposed of by the making of a Care Order by HH Judge Daniel Serota QC on 18 December 2013. CC now lives away from home in semi-residential accommodation under a Care Plan for long-term fostering. The Children’s Guardian is Amanda Wawryn, and they have been represented by Mr Paul Murray. The Children’s fathers are Mr A, father of AA, represented by Ms Kelly Webb, and Mr B, father of BB, represented by Ms Jane Hepburn.

 

2                    The Local Authority applied on 12 June 2013 and now seeks final Care Orders in respect of both children. The Care Plan for AA is long-term fostering; the care plan for BB is one of adoption.

 

3                    The final hearing commenced on 1^st April and continued until 10 April 2014, with written submissions by the 17 April 2014.  On the 14 May 2014 this matter was listed so that I could give an indication to the parties of my decisions, which I had reached, that having heard all the evidence and witnesses it was in the best interests of AA to approve the Care Plan for long-term fostering, with contact as proposed by Dr Yates of 6 occasions per annum, increasing in length and frequency according to AA’s needs. As for BB, I indicated that I had not been persuaded that I should approve the care plan for adoption: at her age and in her circumstances, given her strong family relationships and their value, her feelings and the prospect that, one day, her mother may be well enough established for her to return home, it would be wrong to shut out that possibility owing to the importance in her case of remaining a part of her birth family. However, given the views of the witnesses including particularly Dr Wilkins, and the very new turn of events in the mother’s life, and the fact that she has more of her journey to travel to provide a firm foundation to care for her child, I decided that the best of the options presented was for her to remain in foster-care. I indicated that the Local Authority needed to amend its Care Plan and fixed a date for the matter to return, giving time for the Local Authority to consider the written judgment of the court.

 

4                    The mother seeks the return of AA and BB to her care. Mr A no longer seeks the return of AA to his care, changing his position after re-considering the evidence and accepting that AA could not return to his care. I accept this was a very difficult decision for him, and it reflects his ability to put AA’s needs first before his own wishes. Mr B supports mother’s desire for the children to be returned to her care. He does not put himself forward to care for BB.

 

 

5                    The Children's Guardian supports the making of final care orders in respect of both children, and a Placement Order in respect of BB.

 

6                    Background of proceedings

 

Some two weeks after the proceedings were issued, AA and BB were made the subject of Interim Care Orders and placed together in foster care. While in foster-care a series of incidents occurred which resulted in the Local Authority deciding that it would be better if AA and BB were placed separately. These incidents included

·         AA blaming BB for the fact that they were placed in foster-care, and being physically and verbally abusive to his younger sister;

·         AA inappropriately touching BB’s vagina on 6 July 2013;

·         AA placing his hands round his neck (in the presence of BB) causing himself to choke, saying that he was going to kill himself, requiring the attendance of an ambulance;

·         BB copying AA’s behaviour by placing her hands round her own neck.

The decision to place the two children separately was supported by Dr Yates in a letter dated 19 September 2013. His reasons for proposing separate placement included the following:

      “…there is 7 years difference between AA and BB chronologically. They have very different developmental needs, AA has more therapeutic needs than BB, I am concerned that AA’s relationship towards BB is one of controlling her and keeping her quiet and that this will have a significant impact on BB’s development and finally, from a developmental point of view, BB still has the opportunity of a fresh start or at last another start in life whereas AA does not, given his age and his complex difficulties.”

 

7                    BB remained in the foster-placement and AA was moved to his father’s care on 11 October 2013. Sadly because of the father’s use of drugs AA was moved to reside with Mr A’s daughter on 4 November 2013. By 6 November, she had decided that she was not able to provide care for AA, so AA was moved to a new foster-placement on 6 November, where he has remained.

 

8                    The Local Authority have adhered to the view that it is in the best interests of the children to remain separately placed from one another.

 

 

AA

 

9                    AA is white, British and 11 years old. He is described as chatty save for when talking about his home life and his parents. He is said to be thriving in foster-care and is no longer bullied at school. He remains a vulnerable boy and can exhibit tantrums in the way of a younger child if he does not get his own way. He is overweight, which may impact on his future health if it is not addressed. He has a condition called Cholesteotoma in his left ear, which requires yearly surgery. His condition is currently monitored and treated at the Royal Free Hospital in London. He is being supported by a worker from the Adolescent Resource Centre due to concerns about his emotional presentation. He is said to lack confidence and self-esteem, and has indicated that he wants to end his life. He attends Secondary School since September 2013. In his assessment on 7 September 2013 by Dr Yates, concern was expressed that he might have some learning difficulty or might be of low average intelligence. AA has said that he wants to live with his mother again; he used to express a strong wish to live with his father but has not done so since being removed from his father’s care.

 

10                BB

 

BB is a bright, healthy and articulate girl aged 4. She is of dual heritage, as her father is Jamaican while her mother is white British. She is said to present as older than her years and is far more independent than one would expect for a child of her age. She is said to be thriving and happy in her foster-placement. She has stated that she would like to live with her mother or with Mr B and AA.

 

11                I should mention the other siblings, who have some particular relevance in the family dynamics. The mother had a son by a previous partner. In 1992, her son tragically died as a result of inflicted injuries, including a head injury that he sustained while he was in the care of the mother and her then partner. The mother and her then partner were convicted of wilful ill-treatment of a young person in respect of her son’s death. Later, the mother married her son’s father in 1993. During her marriage mother met CC’s father. The mother became pregnant by him with her now adult daughter, starting a relationship with CC that caused the breakdown of the marriage.

 

12                Mother’s eldest daughter is now 20 years old. Care proceedings were issued when she was born in 1994, and concluded with her remaining in the mother’s care. At the age of 15, however, she refused to continue living with her mother and moved to live with the maternal grandmother (MGM).

 

13                CC was born in 1997, the second child of mother’s relationship. Mother and CC’s father separated in 1999 although she continued living with him until she met the Third respondent Mr A in 1999. There were private law proceedings between mother and CC’s father, which resulted in a Residence Order being made to the mother in February 2002, a family assistance Order, and a contact order in favour of him. CC has a diagnosis of ADHD and ODD (Oppositional Defiance Disorder).

 

14                Mr A remained in a relationship with the mother from 1999 until their separation in 2003, a year after AA was born. Mr A has parental responsibility for AA by an Order made on 21 June 2013. Prior to the issuing of these proceedings Mr A had regular staying contact with AA.

 

15                Mr B was in a relationship with the mother for some 4 years, during which time they married. They had separated by April 2012. Mr B has parental responsibility for BB. After separation, Mr B claims he had regular contact with BB until mother stopped his contact in September 2012. As a result, from September 2012 until June 2013, BB had little contact with her father.

 

 

 

Threshold

 

16                While it is accepted by all parties that threshold is met, some issues remain.  The first allegation has taken centre-stage: that throughout children’s Services involvement, alcohol abuse by the mother has been a consistent concern. She has been reported to misuse alcohol by the Anti-social Behaviour Officer as well as by staff at BB’s pre-school. It is alleged that her problems with alcohol led to a chaotic lifestyle, including leaving the children in the family home to care for themselves. A second allegation is that the mother failed to meet the children’s needs while in her care, with reports that they were reported as dirty and unkempt.

 

17                The allegation as to the use of illegal substances is not pursued.  Although the mother accepted that the children had previously suffered emotional harm, physical harm and neglect when they were in her care, she did not accept that they were likely to suffer emotional or physical harm or neglect in the future if they were returned to her care. The parents raised particular issues as to the following:

2(b) as to whether AA’s excessive weight is attributable to mother’s care;

2(d) as to whether mother slapped and hit BB;

2(k) as to whether mother blamed BB for being placed in foster-care;

2(j) as to whether Mr B and Mr A “failed to protect” their respective children.

 

18                As the evidence has been heard during the welfare stage of the hearing, the issues which have emerged as central are

(1)   the mother’s ability to parent;

(2)   whether the mother is now abstinent;

(3)   whether mother is likely to remain abstinent

(4)   whether, if she remains abstinent, mother will provide good enough care for AA and or BB;

(5)   the proportionality of the proposed plan in respect of the found risks;

(6)   the best interests of the children, with the weighing of positives and negatives.

 

19        Evidence

 

I have reviewed a very large amount of oral and written evidence in reaching my conclusion. I have read the statements or reports of the witnesses listed below who gave oral evidence. I return later to relevant passages of those witnesses’ evidence on particular issues. I heard the following witnesses:

Local Authority professional assistant, dealing with matters involving the mother and CC;

Team Leader in the Drug and Alcohol Service, CRI Spectrum: she gave evidence about mother’s attendance and progress and also Mr A;

Dr Peter Yates, Consultant Child and Adolescent Psychiatrist, and his reports of 19 September 2013 and 28 September 2013;

Head teacher of AA’s primary school, whose evidence included dealing with AA’s behaviour in 2013, and Mother’s engagement with the school nurse over dietary problems;

Antisocial behaviour officer, dealing with allegations against the mother;

Mr A’s daughter from a previous relationship, aged 24, dealing largely with the events surrounding the incidents in November 2013 which led to AA being removed from his father’s care;

Social Worker of who prepared a Family Assessment Team report on the mother of 6^th September 2013.

Owner / manager of BB’s Nursery, dealing with her observations of BB and reports of what she had been heard to have said;

Dr. Anthony Wilkins, consultant adult psychiatrist, who prepared reports of both the mother, by his report of the 4^th September 2013 after seeing her on the 30^th July 2013, also on AA father, Mr. A, by his report of the 10^th September 2013;

A worker who had done therapeutic work with AA, around his confidence, self esteem, anger and food issues;

Allocated social worker in the case since 2^nd April 2013, who has prepared the background chronology, filed some seven statements and managed the case, with her own managers, on behalf of the local authority.  She has prepared or referred to viability assessments in relation to a number of other relatives.  She has prepared the case report in the placement application.  She gave evidence over a wide range of issues and has provided her views about the children as well as descriptions in accordance with the Children Act criteria.

The mother, who gave evidence confirming her four statements.  The mother’s oral evidence presented a significantly different presentation and new acceptance of a great deal of the local authority’s concerns and I return to consider her evidence in more detail. 

Interim service manager, Adoption Services, explaining the adoption procedures and expressing a view that “early indications of interest” in girls and BB were “very positive”;

Key worker at CRI, who gave evidence as to group work done with the mother and as to the progress she appeared to have made;

Amanda Wawryn, the children’s’ guardian who gave evidence as to her views and report.

I also have the benefit of a significant number of documents contained in the bundles.  It would be possible to refer in much greater detail to the evidence of particular witnesses and if required that can be provided, but in this judgement in order to keep it from becoming unduly lengthy, I will note and give extracts from certain witnesses who were of particular importance.

 

20.              On the issues arising from the mother’s parenting, I refer in particular to the evidence of the parenting assessor.  The parenting assessor completed an assessment of mother’s parenting between the 24^th July 2013 and 3^rd September 2013.  I propose to quote key passages that have been of particular relevance: 

 

“Mrs B has a good understanding of the basic physical needs of her children, in particular a child’s need for food, shelter and warmth.  She understands a child’s need for love, care and attention and the need for children to be raised in an environment where their emotional and developmental needs will be safeguarded and promoted …”

“There is an emotional connection between Mrs B and her children which is seen in the positive image she has of them and the genuine affection she shows towards them …”

“In the environment and context of the assessment suite, there were no difficulties with Mrs B’s childcare management strategies and the quality of her care giving was very good.  However, despite this display of very capable parenting, there is considerable evidence within the court bundle, that during the course of everyday life, Mrs. B’s behaviour and parenting does not adequately support her children’s individual physical, emotional and developmental needs.  Indeed, Mrs B’s capability and understanding seems to be in total conflict with the care she appears to have provided CC, AA and BB.  Although Mrs B vehemently denies any alcohol misuse (individual session 22.08.13) or that it has adversely affected her parenting capacity, there is an abundance of evidence to suggest otherwise…”

“Throughout this assessment, Mrs B advised assessors that she desperately wants AA and BB returned to her care and that she is able and willing to meet their needs.  However at no point did Mrs B acknowledge that she has ever failed to meet their needs in the past and, when assessors asked her if she would do anything different now to prevent the same situation occurring again, her answer was “no”.  In my opinion Mrs B has failed to make appropriate links between her alcohol consumption and its adverse effects on her behaviour and consequent parenting capacity…”

[E117] “…I would suggest that Mrs B’s inability to successfully evaluate risk is the direct result of her alcohol misuse and that when intoxicated her judgement is severely impaired.  Her need to socialise and consume alcohol forces her to substantially neglect her children’s needs and misjudge adults that are suitable to entrust with her children’s care.  These factors coupled with her unwillingness to let go of abusive relationships, suggest that Mrs B continues with a particular pattern of behaviour and is still not able to safeguard her children.  There is extensive evidence that parental alcohol misuse is associated with harm to children…”

“Mrs B sees herself as a competent parent whose child management strategies are mostly positive, and Assessors would agree that this perception of Mrs B is accurate when she is in a sober state.  However, Mrs B has repeatedly failed to accept that her parenting strategies and behaviours are severely compromised by her misuse of alcohol and, consequently, her children have been exposed to domestic violence, abuse and neglect and all the instabilities and insecurities associated with parental addiction.  Her refusal to acknowledge past behaviours raises concern that she minimises the effect and is unable / unwilling to reflect upon past mistakes.”

“Children’s Services have been working with the family to affect change since 1999 and attempts to successfully improve the children’s home environment, relationships and protect them from significant harm has failed.  Although Mrs B has recently achieved sobriety, there remains a very high risk that she will relapse and thus, the children will again be subjected to a chaotic and abusive lifestyle related to parental addiction.  There is a historic fatality and a consistent pattern of behaviour demonstrated by Mrs B that means that she is not able to place her children’s needs above her own and ensure that their safety and emotional and psychological wellbeing remain paramount.  Mrs B would need to demonstrate a commitment to her sobriety for a substantial period of time before she could be considered as an appropriate and safe primary care-giver for her children, and I fear this cannot be achieved within the children’s timescales….

“Throughout this assessment, Mrs B struggled to consider how her children have been harmfully affected and traumatised by domestic violence, criminalised behaviour and alcohol misuse.  She has not been able to suitably consider that she has frequently demonstrated unpredictable behaviours and that multiple abusive relationships have negatively impacted on her children’s behaviour and their ability to form secure attachments.  The children are regularly being provided with demonstrations of dysfunctional interactions and negative representations of adult relationships…

“Not only has Mrs B dismissed safeguarding concerns brought to her attention by professionals, but she has failed to acknowledge her children’s disclosures alleging abuse and relentless physical and emotional neglect.  All of Mrs B children have, during the course of Children’s Services involvement with the family directly or indirectly asked professionals to assist them to manage their mother’s behaviour and have their needs met.  The local authority will fail in their duty of care to these children if they do not recognise their desperate need for a long term solution to a historic problem.”

 

In her oral evidence, while she was prepared to take account of positive factors about the mother, she still retained substantial doubts about the return of the children and was plainly of the view that it would be a risky decision to do that.  She made the point that the children were exposed to many traumas and to expose them further she said, would be a travesty.  It would be “testing the waters”.  She had not dealt with the everyday care of the children when most of these stresses and strains occur.  She would be looking for a further year of sobriety, and it would be irresponsible for the children to languish in care to wait over that period.  Her evidence was the result of careful observation in the summer of 2013.  I bear in mind that the mother’s circumstances and presentation appear to have moved on significantly.  Nevertheless the assessor’s evidence merits some weight relating to the time that the observations were made. 

 

21.              I have the evidence of Dr. Peter Yates which was given early in the hearing.  At the time of his report, he was reporting on both CC and AA (not BB) but he observed in a letter of the 19^th September 2013:

 

“ …AA presented as being extremely guarded and immature at interview.  He did not meet the diagnostic threshold for any diagnosis of developmental disorder or of mental illness.  He presents with concerning behaviour in the incidents where he has tried to strangle himself.

I was not instructed to assess BB but have met her briefly and seen her having contact with her brothers.  Both CC and AA adore her and the three get on well together…”

 

22.              In his report of the 28^th September 2013, Dr. Yates stated as follows:

 

“[258] Based on the information available to me AA presents clinically as a young person of possibly low average intelligence, confirmation of which would require formal cognitive testing.  He might have specific learning difficulties and this would also require formal cognitive evaluation.  There was no clinical evidence that AA suffers from any form of pervasive developmental disorder such as the disorders described by the term autistic spectrum disorders.  There was also no clinical finding to suggest that AA suffers from any of the more narrowly defined developmental disorders such as ADHD or ADD…”

[E220] “ I am …. concerned about AA’s emotional, psychological, social and behavioural development as he presents as an isolated young person with little confidence and low self esteem.  The history suggests that while he has been bullied he has also behaved in a similar manner to some younger children.  While there is no formal diagnosis for such a presentation it remains concerning.

“While some of AA’s developmental difficulties could be due to intrinsic factors, it is also my view that the parenting he has received has also adversely affected his development.  In my opinion the evidence before the court indicates to me that AA has been emotionally neglected and emotionally abused in very much the same way as that described above for CC…”

[266] “The parent’s harmful interactions with AA include emotional unavailability, unresponsiveness and emotional neglect.

[267] The impairment in AA’s development can be seen in his emotional state (unhappiness, anxiety, low self-esteem, pre-occupation with caring for his siblings, pre-occupation with food and eating), behaviour (social isolation, bullying and his pseudo adult presentation) and his lack of peer relationships.

[268] The treatment for AA’s difficulties includes him continuing to receive good enough parenting which has included management of his diet and therefore weight, life story work and the opportunity for him to engage in some form of talking therapy although I am not convinced that he is ready to make use of such an opportunity…

[274] “AA, like his older half brother, also needs an emotionally safe and predictable environment where he can feel safe and secure.  Unlike CC, AA does not appear to be close to experiencing this in his current placement and may take some time to do so in a subsequent placement if the court does not sanction his return home.

[275] AA appears to me to not yet be able to acknowledge the concerns relating to the children’s experiences while living in the family home.  His loyalty to his mother appears to come before his ability to recognise the harm that he and his siblings were exposed to in their mother’s care…

With regards to AA’s placement needs, a local two carer family ideally male and female and with older children would be better than a single carer.  I do not think that AA should be placed with younger children.”

 

In his oral evidence Dr. Yates stated that he had read the updating material and had not altered his recommendations.  He said that a lot rested on the mother’s ability to remain abstinent.  He said: “There is a lot of evidence about the other children in this family: CC is a disaffected, intellectualised kid who uses denial against reality.  He is quite different to AA, who has “eaten” his was out of the fear by comfort-eating: because his emotional needs have not been met….  I did get a sense of mother “accepting” and I was interested in getting a developmental history.  I maybe should have given her more opportunity to take responsibility; she took some, not a lot.  She has taken responsibility late in the day”.

“AA needs to be in an environment where he is free of thinking ‘will his mother get angry?’  If he can be in an emotionally safe and neutral environment, that is the best place for him to be.  I am not convinced that it is with the mother.  He needs to think about football teams, etcetera – not “what will mother be like tomorrow?” or “what mood will mum be in?”

He also said later in his evidence: “I acknowledge that she [mother] is on the way to abstinence … I can understand, in this case, it must be very stressful because of the different needs of the children at different times…”

 

23                Dr. Yates was asked how quickly, as she is now sober, would she manifest clear insight?  Dr. Yates said that this was a question for an adult psychiatrist.  He added that he would hope it would be in weeks to months, sometimes the penny drops years later. He said “There is a long process to finally internalising understanding.  Weeks and months can bring understanding of child development.  I agree the mother was beginning to take it up.  I acknowledge a lot of partial acceptance.  I accept that her insight and responsibility has increased and she is beginning to lead a calm, acceptable life – that is a positive trajectory.”

He was asked to comment on the nature of the emotional attachment between the children and their mother.  He said “The descriptions of contacts suggest that as little children, they had a good experience.  There is a secure attachment for both children.”  He was asked about mother providing a safe and secure environment for the children, if she was developing insight.  He said “I’m worried about both children for different reasons.  AA needed to have a two-parent foster-parent placement.  He would be very difficult to place.  A single carer would be worn down… The mother, on her own, would struggle with him.  Their relationship won’t make it any easier – it will be very very difficult.  AA is very immature, physically, emotionally, behaviourally, socially and psychologically.  He will need a lot of help, guidance and anticipation – thinking ahead because he cannot do it…  I can’t believe he will be a different child in two months, it will take years to get him back on track… You’ve got to see the bigger picture: there will always be a cost, if he’s not going home.  He still has the opportunity to get back on track.  It would be better for him to be in an emotionally neutral and safe place, where work can be done on his development, to catch up.  From there, to work on his relationship to work with family members, rather than placing him in the family relationship…  In relation to contact I would think along him having six times a year with a view to later on, possibly, becoming once per month.  I would be thinking a couple of hours on each occasion for the first year.  Then, to seek longer and more frequent contact – a whole day eventually.  It has to be pegged to his needs.”

 

24                In relation to BB, Dr Yates said that she would be rising five and the risk would be 8%-10% of the adoption breaking down.  She was female, that was an advantage.  She was physically healthy and had no developmental disorders.  There was a lot to predict that adoption would go quite well.  She had been away from both parents for quite a long time and in one foster placement…There is the cost: it is difficult to say, I have not assessed her.”  His anxiety was in losing the opportunity for adoption.  He said “One has to be careful – it may work with mum, but one is not quite sure, that will cost her the opportunity of adoption.”  He was asked if the mother continued on a positive trajectory whether she could go home.  He said that he could not say “no” to that, he had not had the opportunity to assess the child.  In relation to Mr. A’s contact to AA he said that if the court found the relationship was good, and father remained cocaine-free, his answer would be the same as full contact with the mother – six times a year and getting longer.

 

25                Dr. Yates is an experienced psychiatrist and while his evidence related to matters as he found them in July 2013, I felt able to place significant weight on his evidence.  I found him to be a reliable, knowledgeable and authoritive expert, and his evidence was of a real assistance to the court.

 

26                I heard evidence from Dr A.J. Wilkins, consultant psychiatrist, in his report of 4^th September 2013.  At paragraph 47, he reported on the mother in the following terms:

“My overall conclusion… is that Miss B [i.e.Mrs B] does not suffer from a major mental health problem or has suffered from significant symptoms of depression or anxiety.  She has vulnerabilities which are likely to be psychological and emotional and related to her personality.  Having said that, the demands that had been put upon her in her domestic life have been considerable and it would have been important not to over-emphasise her vulnerability to these difficulties.”

“Miss B told me that she had completely abstained from alcohol since 14^th June although the children were removed on 28^th June. … At the present time Miss B is attending a local alcohol treatment project.  She goes there regularly and is breathalysed.  She attends yoga, swimming and the gym.  She goes to a relapse prevention group twice a week and sees her key worker regularly.  She told me that she had been able to stop drinking over the past six weeks without difficulty and there have been no withdrawal symptoms when she stopped drinking in June 2013.  [Seen on 30^th July]  Miss B therefore described a pattern of episodic binge drinking leading to disinhibited behaviour, behaviour that puts her at risk and that behaviour that has put her children at risk.  However she is not an alcoholic.  She does have a significant alcohol problem however, and this I suspect has had a major part to play in her mood problems over the past two years. … [61] Although Miss B’s use of alcohol has been significant and probably is important in understanding her mental health problems in the recent past, and also some of the difficulties that she has had in child care, in itself it is not a major problem and it is arguable that he apparent recovery from alcohol misuse and binge drinking has been contingent upon the fact that the children have been removed from her care and she is no longer experiencing the difficulties that she clearly described to her GP in the early months of this year [2013].”

“In my opinion there is little evidence to support the notion that Miss B has been dependent upon alcohol.  However, there is much more evidence to suggest that she has misused alcohol and she herself admits a binge drinking pattern. ….My overall impression following my assessment of Miss B was that her decision to abstain from alcohol was principally in the face of the threat and ultimate decision to remove the children.  I am not convinced that she intends to sustain an alcohol-free lifestyle for the indefinite future or following any rehabilitation of the children. It is too early to draw any conclusions from her recent period of abstinence.

 

27                Dr Wilkins stated his view that Miss B’s use of alcohol had been driven by difficulties in domestic arrangements and found her relationship with CC particularly difficult.  He thought it was likely that Miss B would be more capable of caring for her other children without resorting to alcohol as it seemed that Miss B resorted to the use of alcohol in the context of psycho-social stress.  While she had her eldest daughter living with her she was able to abstain from alcohol and it was likely that she would be able to if AA and BB came to live with her.  Whether she intended to do so was another matter, but he said this was within her conscious control.  He was not of the opinion that there was any implicit problem in Miss B’s ability to care for her children.  It would appear that her difficulties were dependant on a number of factors all inter-related, which consisted of the psycho-social stress caused by having four children living with her, and her tendency to resort to alcohol in the context of stress and the consequent impact that it had upon her mood.  The psycho-social stress element might be addressed by an alternative placement for CC; Miss B would be able to address the impact that her alcohol had had by abstaining, and it was possible that the psychological therapy would have some impact on her capacity to cope if she engaged with consistency.  Her attitude to the local authority’s concerns is very much affected by her dissatisfaction with the way she felt the case had been managed … she therefore accepts concerns that the local authority had raised particularly in relation to alcohol use.  He was not convinced that she believed that these problems were regarded as important by her and she felt that her difficulties had been very much affected by the relationship with CC.  Throughout the interview there was a tendency to project blame onto others, to displace responsibility onto others and refer to other difficulties that she had, therefore diverting attention from the factors that gave concern to the local authority.  On dealing with the question of risk, Dr Wilkins stated:

“The children are likely to be at risk from neglect if they were returned to the care of their mother.  This is what affected them before and this is what is likely to occur in the future.  That neglect had been a factor of her misuse of alcohol at times and her general difficulty in coping with the pressures that she has felt under particularly in relation to CC.  Therefore the other children would be less at risk if CC were not returned to her care, but I cannot rule out the possibility that if Miss B were to return to a lifestyle where she misused alcohol that there would be further concerns”.

   “Miss B has the capacity to maintain changes in her lifestyle and to maintain them should she choose to do so … she has also demonstrated capacity to stop drinking it would seem, although it would be difficult to identify this as abstinence on objective testing as the objective tests only measure excessive and persistent alcohol use.”

 

   In giving his oral evidence, Dr Wilkins was taken to examples of incidents of the mother’s drinking.  In the reports he said “This is another example of an individual with alcohol problems picking and choosing what they tell.  The Audit is useful but has significant limitations.  It is an example of how people who drink too much minimise and underestimate the impact that these actions have on themselves, on their families, on the community and on the statutory agencies.  It is an underestimate of the effect alcohol has on every aspect of their life.  It is very common with people with alcohol problems…”

 

28                In considering the question of mother’s insight he said “At the end of the interview I ask a client what they consider their issues to be.  Their response is usually instructive.  Miss B said that her alcohol use has given cause for concern – she did not accept it was as significant as it appeared to be and was very much because of the other causes, such as CC.  She could not say how she could care for CC – ‘If that was taken out of the equation her drinking would be no problem’.  She accepted the concern in a sense but she did not accept the degree or extent of the concerns or the impact on her life.  I am not convinced she regarded it as important.”

Dr Wilkins said that she did not deny alcohol misuse.  She acknowledged she was a binge drinker.  He was asked whether he was able to form a view of how her insight had developed.  He said: “It’s very difficult.  These proceedings will obtain her attitude to drinking.  There was one telling moment referred to in the CRI notes, where Miss B told the person she was ‘doing this for her children’.  This rang alarm bells in my mind in relation to the long term prognosis.  There are those who give up for themselves, not others.  Her answer does not indicate a degree of insight that would be associated with long term abstinence.  …. I do not want to change my conclusions.  I empathise with Miss B.  She is to be commended for taking things to the degree she has as regards treatment.  That has to be acknowledged.  I look for evidence based on a firm foundation that she understands the need to desist from alcohol, and to acknowledge the affect that alcohol has had on her life and on others.  We have to think of the next five to ten years.  It means more than a willingness to ‘engage with services’ in these proceedings: she has made an effort and the question is once these proceedings are over, whether the court could rely on that.  That is a very much more difficult question.”

 

Dr Wilkins was asked about Dr Yates’ view that AA would be very difficult to parent and that any parent would struggle on their own because he (AA) was socially, educationally and developmentally immature.  If AA was to return, with his difficulties, Dr Wilkins was asked if it was likely that it would trigger the misuse of alcohol.  He replied: “I would put it more strongly.  Mother identified CC as a trigger.  I am sure that she will be very susceptible to extreme stress in her life.  It could come in any form, any child could cause it.”  In cross-examination by Ms Orchover, he was asked how long, once abstinence was established, it took to get the growth of insight to understand the impact of alcohol abuse and acknowledge it.  He said that it was very difficult, it was very individual, some were slow to acknowledge it, some never did acknowledge the extent of their substance use.  He said “I am talking about these things in terms of ‘prognostic indicators’.  If they acknowledge the true extent of their problem that is a good prognostic sign. …What you’re looking for is a collection of positive indicators to indicate the chances are better.  One indication is not very helpful.  I look for a trend over all indicators – the first stage is to acknowledge what you are doing, and that you ‘need help’…. I don’t get the impression that she has acknowledge the damage it has caused to her and the children.  It concerns me…  It is a good prognostic sign that she has achieved abstinence.  On its own, the length of time of abstinence is not as helpful, it has to be taken with other prognostic indicators that point in the same direction.

If you are looking for a really good prognostic indicator, it is an acknowledgement that they are responsible for their own recovery.  Someone who takes it on and says ‘I’ve learnt that I need to take responsibility’.  People do not do very well if they do not accept the need to take responsibility for their own problem.”  Dr Wilkins was asked to identify other prognostic indicators apart from the length of abstinence.  He acknowledged that being in employment was positive, that a sober lifestyle was positive.  That her weekly attendance at church could be a useful thing to have because it was a support mechanism and a coping strategy.   It was building a social network. 

 

29                He said it was a matter of choice, motivation and determination.  All the indications would indicate that there was a reasonable chance that she could maintain abstinence in the medium term future, that is one or two years.  Beyond two years it was impossible to say.  The relapse rates were depressing, 85% of those abstinent at this stage are drinking again after five years, so it was very difficult to predict.  He could be reasonably confident for one or two years, but beyond that the statistics were depressing.  Asked about what factors could eliminate the risks, such as supports or AA meetings, he thought that one factor was the network which was readily available to her which she could rely on.  However, a choice of future partner could be a vulnerability for her and put her under a lot of stress.  He did not get the impression that she had acknowledged the emotional impact on the children.  It was a gradual thing.  He would accept people do not achieve it immediately – it was a journey.  He was not confident that she could make the long term changes in her life to see these children through to their maturity.  He came back to his statistic that 85% relapse within five years.  Subsequently, in answer to further written questions, he developed his basis for the 85% statistic in a letter of the 9^th April 2014.  I found Dr Wilkins a helpful, authoritative and knowledgeable witness, and I assessed him as a reliable expert whose evidence has been of real assistance to the court.

 

30                The background to the case has been carefully analysed and set out in the successive statements of the allocated social worker.  She has a comprehensive understanding of the case. There is a wealth of detail in her statements, with her observations and comments. I found particularly informative her reporting of the children’s situation, health, views and disposition and under the welfare checklist in her recent statement of March 2014.  In oral evidence she acknowledged that Miss B had changed during the proceedings. She acknowledged that the mother’s drinking was under control, but that was not abstinence.  The allocated social worker was concerned that the mother had made changes before which led to social services withdrawing and the concerns were not enough to remain involved.  Her current concern is that the pattern will be repeated and that she will return to her previous lifestyle.  It was put to her that she had never been abstinent before and that this was a different step on a new journey.  The allocated social worker accepted that she had not been fully abstinent from alcohol before, but she also thought that the mother lacked insight.  She said: “I did not feel there has been even close to full acceptance or acknowledgement of what her children have experienced.  As a result there is an emotional impact on them.  I have not seen that in my conversations with her.”  She acknowledged that the ideal family situation would be for the mother to be sober, the family together with the mother; that was if it could be sustained on a long term basis.

 

The allocated social worker held her ground in a number of key areas on which she was questioned.  I take the view that she was able to be conciliatory, in making concessions, that she had a very detailed knowledge of the case and was able to engage competently and thoughtfully on every issue put to her.  She is in my judgement a careful and conscientious social worker.  She had plainly found this a particularly difficult case including in the past due to mother’s tendency to make complaints at a high level and to her superiors.  The allocated social worker remained calm in the face of complaints, none of which have been sustained. Her evidence should be given significant weight.

 

31                I shall also mention the evidence of the worker from CRI.  She had almost daily contact with the mother since July 2013 and in addition was the facilitator of the weekly and sometimes twice weekly group sessions attended by the mother, as well as being her key worker for a month.  The remit of the group sessions she said was to “talk about how alcohol has made an impact of the client’s life, to challenge the client to try and educate the client as to the harm that alcohol does and get the client to disclose the effect it has had on their life and those around them”.  Her evidence was that if the mother had acknowledged the impact her alcohol misuse had on the children it would be apparent in the group sessions designed to facilitate discussion about the same.  She was firmly of the opinion that although the mother had matured since the end of 2013 she had never until the evening of the 9^th April 2014 accepted that her alcohol misuse was a problem, rather she had been in absolute denial, and she had never acknowledged the impact of her alcohol misuse on the children.  The change seen in the mother since the end of 2013 was not that she accepted her alcohol misuse was a problem, and acknowledged the impact it had on her children, but rather that she had got a job, gone to church and done everything asked of her. 

 

32                I now mention the evidence of the mother.  She gave her evidence calmly, with an air of solemnity at times.  She was articulate, measured and detailed in her accounts.  I gained the impression that she was trying to put across an important new message.  She said “I have done a lot of work on myself.  I have a clearer perspective now than I had in June 2013 (her first statement) when I hadn’t long given up alcohol.  It puts a lot of blame on CC.  I am in a different position now, I do not feel that way now.”  As to her assertion that she never put the children at risk, she said “That is not true.  It’s obviously impacted hugely on my children.  That is not how I say it now…. I do fully accept my part in bringing up the children.  When I was drinking, it had a massive impact on the children’s behaviour.  I have recently completed ‘role-modelling’, when I did the parenting puzzle course.  It has given me empathy.  It has greatly helped with CC, listening to him and to my eldest daughter, how they saw events.  I think I had closed ears.”

 

33                In her statements she gave details of her community links, and of a number of courses that she had completed: an empowering parents course, parenting puzzle course, strengthening families course due to finish in May 2014, relate and various ADHD courses, together with engagement with CRI-Spectrum.  She also gave details of her attendance at a church for support, something that in her evidence had evidently become a particularly significant part of her new approach to her life.  She produced certificates for the courses and activities that she had done to help herself.  In the course of her evidence she was taken through her history of drinking and she acknowledged it.  She acknowledged incidences of neglecting the children’s needs and of not being emotionally available.  She acknowledged using her patience and not giving consistent “cuddle times”.  When asked about her relationships with AA and BB she described her relationship with AA in the following terms: he is loving.  I listen to him.  I hear AA now, I value what he says.  They are very, very important to me.  AA adores me, he makes me feel guilty because he is so forgiving, loving and kind.  He is a warm, caring person.  I did not give him the time I should have done.  She described BB as devoted and loving: “she does not see any wrong that I have done, they do not blame me.  That is the hardest part.  They do not hold a grudge.  They are loving little people with hearts that want to be loved.  I didn’t and I should have done.”  Asked about attending at CRI in terms of her insight, she said “Brutally honest.  I was “safe” in the enclosed environment, to be open, honest and baring all.  It was hard to do working through these events in my life.  Seeing how if affected the children in a clear way”.  She went on to say that she wants to remain abstinent, 100%.  She could not see that taking alcohol had any “positive” impact, she saw the effect in her whole life.  She spoke about going to AA , and said that she might need help for the rest of her life.  She could use AA as a positive.  She said she was looking back clearly on her whole life, it was a daily thing.  It was put to her that the concern was that she was saying the right things, showing acceptance, but that she did not mean it.  Her reply was “no, it is a journey – if I had known that accepting everything was the “right thing to say”, I would have accepted everything at the start.”

 

34                In cross-examination she made a number of key acknowledgements.  In his submissions, Mr. Murray identified some of the significant ones which I reproduce as follows:

 

·         Drinking has impacted enormously on my children.

·         That her final statement was only a partial acceptance but “I do now as I stand here today accept”.

·         I have only just completed the parenting puzzle course “role-modelling” – “I have never before displayed empathy in my life” (never previously acknowledged within the proceeding)].

·         That she withheld information about the true extent of her drinking from her GP (never previously acknowledged within the proceedings).

·         That it would take her days or even weeks to recover from a period of binge drinking (never previously acknowledged within the proceedings).

·         That she would visit her neighbour two to three times a week and would consume alcohol on one or two of these occasions (never previously acknowledged within the proceedings).

·         Not being there to make the children dinner and not getting them up in the mornings and ensuring that they were presentable (never previously acknowledged within the proceedings).

·         That at times BB did not have food (never previously acknowledged within the proceedings).

·         Accepting that the removal of the children from her care was the right decision (never previously acknowledged within the proceedings).

·         That her family members only had a limited knowledge of the concerns raised by the local authority.

·         That she physically chastised BB and slapped her eldest daughter on one occasion (never previously acknowledged within the proceedings).

·         That she would leave her children alone (never previously acknowledged within the proceedings).

·         AA may have been under the false impression that he was left alone at night when hearing mother leave and not realising a babysitter was present (never previously acknowledged within the proceedings).

·         Fully accepting that AA’s appearance was the result of the care provided (never previously fully acknowledged within the proceedings).

·         That her enlightenment is a combination of attending church and AA, that she “walks in the light with Jesus” which has enabled her to cross the river of denial. (While it is accepted that Miss B has previously commented on the help she has received from the church there are no previous descriptions outlining the depth of her faith or the connection with her developing insight.  The CRI worker confirmed that this had not been raised in her discussions with Miss B).

·         Accepting that she had scapegoated CC (never previously acknowledged within the proceedings).

·         Accepting that her complaints against the social worker and the ASBO Officer were not justified (never previously acknowledged within the proceedings).

·         Accepting that she drank to excess while AA and BB were in the house (never previously acknowledged within the proceedings).

 

35                The local authority, understandably, say that the mother sought to tactically manipulate her evidence and that of the CRI worker (by telling her the evening before she was due to give evidence that she accepts that she has a problem with alcohol) in an attempt to convince the court that she has fully acknowledged the impact of her drinking on her children which has in turn formed the basis of her motivation to maintain abstinence.  The guardian submits that the mother’s very late acknowledgement of the concerns makes it difficult to determine whether they are genuine changes or a reaction to hearing the case against her.

 

36                On the evidence before the court, the local authority are entitled to take that view, for which there is arguable justification.  With few exceptions, the mother made a lengthy series of admissions.  She expressed her new-found Christian faith. As I observed her, the thought that she had simply assumed the mantle of penitence to get her children back, and to show that she had, belatedly, understood the attitude she needed to adopt for successful emergence from her problems was inevitably present.  That said, it was given solemnly and in a deliberate, positive way. 

 

37                In my judgement, Miss B is entitled to a significant measure of credibility.  It certainly seemed to be what she believed, thought and accepted at the time.  The real concern lies as to its timing – her arrival, on her journey, at the starting-gates of understanding – comes at the end of the case.  Time may show that she was not only sincere in what she said, but that she is committed in the way she continues to lead her life.  While I accept that her acknowledgement, her changed motivation and ability to take responsibility for her own recovery can be described as “embryonic” and untested, it must have profound implications for AA and BB if it proves, over a significant period, to be true.

 

38                The mother’s changing attitudes and acceptances were emerging in her final statement but her evidence clothed them with new significance.  They cannot, in my judgement, be lightly dismissed.  In my judgement, the importance of the mother’s new understandings may well, in time, prove to have been a turning point, and require the court to look very hard again at the emerging positive prognosticators, in the final analysis.

 

39                Mr A did not give evidence. He had changed his position about seeking AA’s return to his care.  I have commented that his decision showed insight, and must have been extremely hard. He supported the case of the mother in having AA’s return to her care. His counsel, Ms Webb urged the court to conclude that the evidence of Dr Yates and the Children's Guardian in respect of levels of contact for AA and the progression of contact is appropriate and should be incorporated into the final Care Plan. I have taken account of her submissions in relation to the proposed finding of fact as to drug misuse, noting Dr Wilkins’ evidence that Mr A is not an addict, but rather someone who chooses to take cocaine, as he did in November 2013.

 

40                Mr B did not give evidence, but like Mr A has prepared helpful submissions for the court.  It is conceded that he has not played a significant role in the final hearing. Having taken the decision that he was unable to be BB’s primary carer, his attendance at contact decreased, reflecting his struggle with the proceedings and the prospect of BB’s adoption. He believes that BB should be returned to her mother. He expresses himself as committed to her and continues to seek as much contact to her as possible. As to adoption he makes the valid point that she is a girl with specific cultural and ethnic needs, which have been and can be met by ongoing relationships with both sides of her family. He submits that she may not be easy to place for adoption, given her age, her family attachments and her heritage. She should have the opportunity for re-unification with her family, either immediately or in the future.

 

41                I mention lastly the evidence of the guardian.  I regret to say I derived limited assistance from her evidence.  Her report offered almost no analysis of the evidence from an independent point of view.  She reiterated part of the evidence in the documents before the court.  She did not adequately balance the options or assess the proportionality of what is before the court.  I found inadequate reference or analysis of sibling relationships or the importance of the extended family. Her involvement appears to have been limited and she has not observed contact.  She has met the mother twice speaking to her recently only at her request.  She met BB twice only. She met the fathers once for half an hour.  Given the particularly important direction the children’s lives will take in this case the court would have been helped by a rather fuller report and individual analysis rather than what appears to be a reflection of the other evidence in the case.  That said, the guardian exhibits an important piece of evidence in the form of AA’s letter to me, which I mention at a later stage of the case, and she reflects the children’s wishes and feelings in an important part of her report.

 

42                I have reviewed the evidence both oral and written with the assistance of the written submissions.  The extracts shown above from the evidence inevitably only form a part of the wider picture that I have seen, heard and considered.  As I approach my task of balancing all the evidence and arguments under the factors in the checklist of the Children Act 1989 and of the Adoption and Children Act 2002 I remind myself that on the issues of fact in the threshold, the local authority bear the burden of proof and that the standard of proof is the balance of probabilities, as noted with the particular authorities mentioned in submissions.  In determining the application for care orders, the welfare of the children is the paramount consideration for the court and I have had regard to the factors in the welfare checklist, section 1 of the Children Act 1989.  In deciding the application for a placement order the court must also have regard to the additional factors in section 1 and 52 of the Adoption and Children Act 2002.  The local authority recognises that wherever possible, consistent with their welfare needs, children deserve and upbringing within their natural families: see Re KD (1998) AC 806.  I have also been referred to the case of Re LRP (a child) (Care Proceedings : Placement Order) [2013] EWHC 3974 (Fam) and in particular that the court, before considering placing the children elsewhere than with their parents, or one of them, must be sure there is no practical way of the authorities or other agencies providing the requisite assistance and support which would allow the child to be cared for by at least “one of her parents”.

 

43                I have been reminded that in Re C (a child) [2013] EWCA Civil 1257, McFarlane L J cautioned against judges addressing only the Children Act 1989 welfare checklist when considering a care plan for adoption and suggested instead a more holistic approach of only approving a care plan for adoption where such a plan seems likely to meet the welfare requirements of the Adoption and Children Act 2002.  See also Re B (Care Proceedings : Appeal) (2013) UKSC 33 at paragraph 198 : when considering a care plan for adoption, it is quite clear that the test for severing the relationship between parent and child is very strict : only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.  In many cases and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.

 

44                I also have in mind the essential pre-requisite, where a court has been asked to approve a care plan for adoption and / or to make a non-consensual placement order that there must be proper evidence both from the local authority and from the guardian.  The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option: see Re B-S (Children) [2013] EWCA Civil 1146.  The court must carry out a proper balancing exercise and proportionality analysis.  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”.  I am also reminded of the observations made by Black LJ in the case of Re V (Children) [2013] EWCA Civil 913 as to the material difference between fostering and adoption at paragraphs 95 and 96 of the judgement.  I am also mindful of the words of Pauffley J in Re LRP (a child) (Care Proceedings : Placement Order) 2013 EWHA 3974 where she profoundly disagreed with the contention that long term foster care is a means by which permanency can be achieved and that a long-term foster home can offer commitment, security and stability within a new family.

 

45                I should mention also that I have considered the rights of the parties under the Human Rights Act and in particular Articles 6 and 8 in this case.  I am satisfied that the orders that I propose to make are necessary and proportionate in all the circumstances. 

 

46                On the issues of fact, I propose to provide my findings in summary form:

 

47                As to paragraph 2 (b), the issue of whether AA’s weight is attributable to the mother’s care (or lack of it).  I have come to the conclusion that there may well be other factors involved; however, the mother’s parenting and at times neglect is in my judgement likely to have played some part.  It is not possible to say with accuracy how much but it is more likely to have been small than substantial.

 

48                As to paragraph 2 (d), and whether the mother slapped or hit BB, given the admissions of the mother and the other known occasions when she was physical with her older children,  I accept it is more likely than not that BB was referring to a real incident of being hit, including being slapped on the face.  It is not possible to say how many times, although her complaints on the 15^th January and 9^th June 2013 suggest that it happened at least twice.

 

49                As to paragraph 2(k), I am not satisfied that the mother blamed BB for being in foster care.  I am not satisfied that the full context of the conversation is well enough remembered by the manager of her nursery.  On balance it is more likely attributable to AA, who on the evidence before the court has been heard making such comments, which I accept.

 

50                As to paragraph 2(j) and the allegation of “failure to protect”, there is sufficient acknowledgement and recognition by each of the fathers of the mother’s problems for me to draw the inference that each knew or can be taken to have known what the children were likely to be going through with the mother’s problems with alcohol, and although viewed with the benefit of hindsight, I find the allegation proved.

 

51                 As I approach the task of weighing the matters holistically together, I make particular mention of an important consideration under the checklist, in that I am very conscious, in AA’s case, that he has expressed clear views.  It is plain that he wishes to return to his mother.  In a letter annexed to the mother’s statement he wrote:

 

“Dear Judge,

Please I beg you to let me to go to live [with] my mum or my dad.  I really miss my mum and dad every moment.  I am not with them, I miss my Monday contact and my Saturday night.  Please let me go home. 

Sincerely,

AA (12^th March 2014)

 

52                Again in a message set out in the guardian’s report he is quoted as saying:

“I want to go home with either mum or dad, either one.  I want to go home.  Dad has done really well.  Mum has got a certificate for her parenting class and for not drinking.  There is no reason why I can’t go home to my mum.  If I do go into long-term foster care, I hope I don’t, I will be really sad and scared and fearful.  I would be scared living in long-term foster care because I would be living in another family, not my own, which is very unusual.  I will not be happy if I am not with my family.”

 

53        Realistically, the only placement options for AA are either rehabilitation to his mother, or long-term foster care.  The positives of a placement with the mother include:

 

1.                  The advantages of returning to his birth family in accordance with his strongly held wishes;

2.                  He would maintain links with his siblings and would have regular, normally informal contact;

3.                  He would maintain his links with his other family members;

4.                  He would be in his familiar surroundings;

5.                  I bear in mind the “positive parenting” skills referred to by the parenting assessor as set out above;

6.                  I take account of the positive prognostic indicators that the mother has, as referred to in the submission of Miss Orchover:

i.          Ongoing and appropriate use of relapsed recovery programmes,

            support centre and drop in facilities;

ii.                  A growing relationship with the church and its community including involvement in societies;

iii.                Employment and a structured lifestyle;

iv.                CC being settled in semi-independent accommodation;

v.                  An increasing acknowledgement that “not one good thing came out of my drinking” and a fuller awareness of the totality of the harm caused to the family by her alcohol misuse;

vi.                Maintaining abstinence through the course of these proceedings, notwithstanding the stress brought about by them.

 

53                I take account of the negatives, which include the following:

1.         AA would be at risk of the mother relapsing into using or abusing      

alcohol, at a stage where the mother is only at the beginning of realisation of the impact and significance of her own conduct; the risk, though arguably deminishing, still remain;

2.                  The risk of neglect, therefore still remains;

3.                  I bear in mind the views and comments of Dr Yates that I have set out extensively above, including the difficulties in parenting AA expressed in his evidence;

4.                  I bear in mind the comments and views of Dr Wilkins as to the mother’s prospects of recovering fully or sufficiently from her alcohol problems and providing a “firm foundation”.  The domestic environment that she can offer does not yet have sufficient prospect of being firm, secure or dependably safe at this stage.

5.                  I am not persuaded that the plan put together at the family group conference would provide sufficient safeguard for AA and I accept that the family members are not able to fully recognise or acknowledge the risk that BB was at in her mother’s care.

6.                  The mother’s record of working openly and honestly with professionals and social workers leaves much to be desired in the past and remains an open question in the immediate and medium term future;

7.                  It is doubtful whether a supervision order would provide a sufficient safeguard for AA;

8.                  A Child in Need plan is unlikely to be sufficient to ensure AA’s welfare at the present time.

 

I record the following in relation to foster care under a care order.  There are a number of positives:

1.                  The local authority would be able to share parental responsibility with AA’s parents;

2.                  AA will be safeguarded and given a stable and safe environment for the foreseeable future and potentially his whole childhood;

3.                  AA will still be able to maintain links with his birth family;

4.         AA is likely to be provided with the care and domestic environment that will be appropriate for his needs, as mentioned by Dr Yates.

 

54                I take account of the negatives which include the following:

1.                  AA would remain subject to Child Looked After procedures for potentially some years to come; this could affect his ability to settle into a foster placement;

2.                  AA would not be returned to his mother’s care in accordance with his deeply-felt wishes;

3.                  AA’s contact with his family would be reduced;

4.                  It is likely that AA would experience some loss of his family relationships;

5.                  AA will be bitterly upset and the denial of his wish to return home may provide some potential for emotional harm.

 

55                I come to the conclusion on all the evidence bearing in mind the factors mentioned above and balancing them, and in particular taking account of the views and evidence of Dr Yates and Dr Wilkins, that there is significantly more risk in adopting a rehabilitation plan at the present time, given the embryonic appearance of the mother’s new understanding and his particular needs, the difficulty in parenting him alone, his identified development and immaturity, than in continuing his care plan with a plan for long-term fostering. In coming to my conclusions, I am satisfied that his best interest will be better served by approving his Care Plan and making a care order today.  I am conscious that he will continue to want to return home and the mother will continue to wish to pursue her journey to providing a stable, reliable home and a firm foundation in every sense for his return.  I am not able to accept any further delay in resolving these proceedings by adjourning the question of whether the mother will be successfully able to maintain her sobriety and to prepare a case to demonstrate sufficient positive prognostic factors to provide that firm foundation that is required, and the prospect of successfully and reliably managing AA’s care.  That, I must add, may be the subject of a future application, but it cannot be an issue in or the subject of these proceedings.  In those circumstances, and subject to the question of contact which I address below, I approve the care plan for AA remaining in long-term foster care under a care order, and make the Order accordingly.

 

56                I now move to the issues relating to BB.  She is described by the allocated social worker as a bright and articulate four year old girl who appears to be very perceptive to what is going on around her.  BB presents as older than her years and she is far more independent than would be expected.  She has been seen as happy and content in her placement and has a close relationship with her foster carers.  In her statement in March 2014, the allocated social worker commented that BB’s views in relation to her mother appeared to be mixed.  Prior to being accommodated, she expressed how she did not like her mummy and did not want to go home after pre-school.  BB has on occasions said that she does not want to attend contact and has asked her carer in the earlier days for reassurance that she would be returning to her care after contact.  However BB has also stated that she would like to live with her mum or her dad and AA.  She is described as thriving in her placement, she is a bright child and needs to be provided with opportunities to learn and develop.  It is acknowledged that if she were placed for adoption it is likely that she would experience some degree of loss in relation to her birth family.  It should be remembered that her mother is white British, and her father Mr B is Jamaican.  BB has a large family network on both sides and does have a good relationship with her older siblings, in the view of her allocated social worker.  She enjoys her contact with both her parents.  Indeed, the guardian reports that contacts are reported as being of good quality and are an enjoyable experience for BB.  She has contact with her brother AA every Tuesday when she sees her mother at the adventure playground.  BB also has contact with her brother CC, once per month, supervised.  Mr B is currently having one hour of supervised contact each week with BB, reported as being positive and enjoyable for BB.

 

57                BB told the guardian that she wishes to stay living with her mum.  In August 2013 she told the guardian that she liked it at her foster carers and liked having contact with her mummy.  The guardian comments that she looks forward to going to see her mum but returns unsettled.  In March 2014, she is reported as saying the following:

 

“ BB told me that she would wish to live with all her family because she just loves all of them and misses them.  BB told me that her mummy misses her so much but it is ok because she always sees her mummy at the contact centre and at the adventure playground”.

 

BB is happy when she has contact with her mummy, but “sometimes she cries when she leaves her mummy.”  The guardian also records that BB told her that her contact with her daddy goes well; they play with the pretend food and sometimes they go outside.  BB told her that she is happy with her mummy and happy with her foster carers.  BB, she records, would like the judge to know that “she would like to live with all her family including mummy, daddy, CC, her eldest sister and AA.  She would especially like to live with AA because she could play with him in her bedroom because AA taught her how to climb up and down the stairs on her bunk bed.” 

 

The guardian recognises that it will be “emotionally difficult” for BB if she is to be informed that she will not be returning to the care of her mother.  She goes on to assume that BB would wish to “be in a permanent placement” due to the inconsistent parenting she has received from her mother.  That is an observation that I cannot accept, it appears to have no foundation in what BB has said, and would appear to assume a degree of rationalisation on the part of BB that I perceive is likely to be beyond her.  I note that Miss Wawryn recognises that if BB was able to remain in her family of origin her identity and long term self esteem would be promoted. 

 

58                I take account of a number of competing features of the balancing exercise which I have to undertake in considering what course is likely to promote BB’s welfare and best interests.  In relation to adoption, I record the following positives:

1.                  Adoption would provide stability within a permanent family to which she would fully belong. 

2.                  BB is said to have the prospect of making a good attachment as she has done so with her foster carers.

3.                  The risk of placement breakdown because of the interference by parents or siblings would reduce;

4.                  There would be a greater level of “legal” security than long-term fostering, as it would not be open to legal challenge;

5.                  BB would no longer be a child in care or a looked after child;

6.                  There would be a reduced chance of placement breakdown or change, but it would carry its own risk of breakdown given BB’s age, maturity for her years, memories and relationships with her birth family.

 

59                I record the negatives of adoption to include the following:

1.                  BB is four years old with clear and affectionately warm memories of her family, including her mother, brothers, half brothers and sister, father and father’s family;

2.                  BB has a strong relationship with her parents and siblings;

3.                  BB knows her place in the family as the youngest of four;

4.                  Severing the relationship with the family would be traumatic and would significantly impact her;

5.                  BB has a large family network;

6.                  BB, coming as she does from a mixed race background, would not be able to develop her identity within her birth family as she matures.

7.                  BB must be regarded as at the edge of the time in which her adoption could be expected to be accomplished without undue risk – Dr Yates’ evidence.

8.                  BB is likely to retain strong memories of her parents, siblings and wider family members.

9.                  Were AA to permitted to return home in due course, BB would be at risk of becoming significantly affected by coming to that knowledge whenever it happened.

 

60                I have identified the following positives and negatives in relation to a plan for long-term fostering.  The positives include the following:

1.         Long-term fostering would mean that the local authority would share parental responsibility with her parents and direct the care that she receives;

2.         Long-term fostering would avoid the traumatic effect of permanent separation for her minority, from all her immediate and wider family: this would ameliorate the sense of loss;

3.         Long-term fostering would allow the possibility of re-unification and rehabilitation with her mother (or father) at some future date;

4.         Long-term fostering would provide BB with safety and security;

5.         Long-term fostering would mean she could maintain a relationship with her parents, siblings and relatives;

6.         This would reduce the potential for a conflict of identity by being the only one in a sibling group to be adopted;

7.         This would allow her to be reassured that her birth family love her and continue to care for her;

8.         BB would retain her name and family identity;

9.         BB has enjoyed contact, this would continue;

10.       There would be the possibility for a referral for support/therapeutic input.

 

61                I have identified a number of negatives in relation to long-term fostering which include the following:

1.                  BB would continue to be a child in care as a looked after child and subject to reviews for the next fourteen years;

2.                  There would be an increased potential risk of the parents or siblings destabilising the placement;

3.                  BB would not have the “legal permanence” of an adoptive relationship;

4.                  BB would be subject to the normal risks in foster-care arrangements such as the carers giving up, because of illness or retirement, and BB losing the link and continuity;

5.                  The contractual relationship with the foster carers would end at age eighteen and finish;

6.                  BB would not form her own identity in a new family in the same way as in an adoptive family;

7.                  BB may be the subject of future applications.

 

62                I have considered the option of rehabilitation of BB to her mother.  I have identified the following positives:

1.                  BB would return to her known birth family;

2.                  BB would maintain her family and birth links;

3.                  BB would have contact with her siblings and relatives.

4.                  BB’s wishes would be fulfilled.

 

63                I have identified the negative features of returning to her mother, which include the following:

1.                  The mother’s change of insight and understanding remains unassessed/untested.

2.                  There is a risk that the mother may relapse into alcohol abuse and the neglect that would follow;

3.                  BB would remain at risk of further proceedings;

4.                  BB would be at the risk of the concerns expressed by the local authority as to mother’s ability to work with professionals in the local authority;

5.                  The risk that family and friends would not be able to safeguard BB;

6.                  The supervision order could be inadequate to the mother’s known difficulty in accepting professionals’ concerns and adhering to advice, or co-operating with local authority staff;

7.                  A child in need plan overseen by a social worker would be needed with meetings every three months with six week home visits.

 

64                In my judgement, having reflected on the above, the reality of BB’s circumstances and those of her mother, is that BB will preserve a wish to return to her mother’s home to live there.  She is old enough and developed enough to retain her memories of her experiences with her family which have resulted in expressing a very positive wish to be with them.  She will also want to be in contact with her siblings and family, including of course her father and that extended family.  The mother’s central problem has been her consumption of alcohol.  If she can overcome that and establish and continue the “positive trajectory” of her life, there remains a sufficient prospect of establishing a stable home for BB, even if not for AA, to make taking the draconian and final step of making a placement order to promote an adoption significantly inappropriate.  She has signalled a new but apparently sincerely held understanding about her consumption of alcohol, and its effects on her and her family.  Time will tell if she is able to adhere to her new lifestyle, characterised by abstinence, a regular job, church going and participating in that community with its potential support, as well as allowing a potential for an alternative coping mechanism.

 

65                The mother has, as noted above, acquired a number of “positive indicators” in her life, with reference to the evidence of Dr Wilkins.  There is in my judgement a reasonable prospect of her extending her period of abstinence.  It is already at one year, and if it extends to two years, the positive trajectory will continue and the local authority view that she will relapse with the attendant consequences of neglect, violence and abuse will further recede. 

 

66                Miss B’ case cannot be regarded as standing still.  She realised the need to achieve abstinence a year ago.  She has professed to have arrived at new understandings of the consequences of her many years of drinking, and a determination to put it behind her.  The indicators mentioned by Miss Orchover certainly support that view.  In my judgement, on her present course, there is sufficient prospect as time passes to expect her to achieve continuing abstinence and to find herself in the “fifteen percent who succeed”, rather than the “eighty-five percent who relapse”, to say that it cannot be right to sacrifice BB’s potential for rehabilitation in due course with the mother who she loves, and losing the considerable and (for BB) valuable family relationships in the process.  In considering the checklist under section 1(4)(f) the value of her continuing her family relationships is considerable, along with her family identity.  As a child of mixed race, this is especially so.  I couple that with consideration of section 1(4)(c);  effect of adoption which would almost certainly be upsetting, if not traumatic for her.

 

67                In these circumstances and having considered the balance and the strength of the factors that have been set out, in the context of all the evidence, I am unable to find that “nothing else will do” except adoption.  Indeed I would be unable, on the evidence before me, to reach the conclusion that BB’s welfare requires that her parents consent to an adoption be dispensed with.  In those circumstances, I am unable to approve a Care Plan for adoption, and it becomes necessary for the local authority to consider this judgement with a view to an amendment to provide long-term fostering for BB as the preferable and appropriate alternative.  Having announced my decision earlier, the local authority is in the process of considering this judgement in order to redraft its care plan, and the matter is due to return at the end of June for further submissions or argument about the amended care plan.  I will also consider contact at that hearing, which may need to be re-examined and considered both for AA and BB in the light of a care plan for long-term fostering for both children.

 

68                Contact

 

As far as AA’s contact with his father Mr A is concerned, Miss Webb submits that the court should conclude that the evidence of Dr Yates and the children’s guardian in respect of levels of contact for AA and the progression of contact is appropriate, and should be incorporated in the final care plan.  That has been accepted by the local authority who seek to amend their final care plan to six times a year to be reviewed after twelve months in accordance with the recommendation of Dr Yates.  The mother submits that she should have an increased level of contact to AA.  She points to the particular need for reassurance that AA may need in relation to what is happening to his sister.  While I readily accept that the evidence of Dr Yates provides a balanced and appropriate way forward for AA, as accepted by the local authority and Mr A, with a basis of six contacts a year forming the starting point, and a discerning eye of his needs, it may be necessary to co-ordinate his contact with the contact that BB has with her mother, and disparity may cause problems.  It should not be assumed that what suits AA will suit bb, and further thought needs to be given to the needs of the children in working out a sensible and beneficial contact programme.

 

69                I will hear further submissions as to the contact that will be appropriate for BB, but while the contact that is said to be appropriate for AA may provide a good starting point, it should not be assumed, as I have said above that what suits AA will meet BB’s needs.

 

70                Before making the final orders in this case, I will hear further argument as to contact, and on the question of the local authority’s care plan, at a hearing to be arranged on the 30^th June 2014, for which position statements need to be provided by no later than 4pm on Friday 27^th June.

 

 

His Honour Judge Peter Wright

23 June 2014