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URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B218.html
Cite as: [2014] EWFC B218
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IN THE WEST LONDON FAMILY COURT SITTING AT KINGSTON-UPON-THAMES
Case No…………
………………
St James Road
Kingston-upon-Thames
Surrey
KT1 2AD
Friday, 1st August 2014
Before:
HER HONOUR JUDGE CORBETT
B E T W E E N:
London Borough of Hounslow
and
R
Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
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.
Mr Griffin appeared on behalf of the Local Authority for the Judgment (Ms Rahman appeared on behalf of the Local Authority during the final hearing)
Ms Quinn appeared on behalf of the Respondent Mother
Mr Rawcliffe appeared on behalf of the Respondent Father
Ms Bhatia appeared on behalf of the Guardian for the Judgment (Ms Creighton appeared on behalf of the Guardian during the final hearing)
JUDGMENT
(Approved)
HHJ CORBETT:
1. A and B are twins born on…., now seven and a half months old; in this judgment I refer to them either as the children or the twins. Their mother is M and their father is F, they married on…..They are in a relationship still, but have never lived together. The Local Authority, issued an application pursuant to Section 31 of the Children Act 1989 upon the birth of the twins and His Honour Judge Nathan made interim care orders shortly after their birth approving an interim care plan of foster care. The parents did not attend this first hearing at the Guildford County Court, nor were they represented. The children have remained in foster care ever since.
2. The Local Authority care plan is adoption. The Local Authority has issued an application for a placement order and ask that the court dispenses with the consent of the parents to placement. The Local Authority’s applications are opposed by the parents and supported by the guardian, who said in evidence that this is a complex and difficult case. I entirely agree with her.
3. The witnesses from whom I have heard are the allocated social worker, an independent social worker (ISW) who was instructed by the parents, the Specialist Intensive Support Programme assessor, the parents themselves and the guardian. The hearing was listed for final hearing on the 21st July for five days, that being week 31 of the proceedings. After hearing the oral evidence of the witnesses I have just named, and detailed submissions, I reserved judgment until today. Whilst considering and writing my judgment yesterday, I received a letter dated the 30th July from the mother’s counsellor via her solicitor providing information about the qualifications and experience of a psychotherapist who has been working with the mother in her therapy group now for the last four months and I invited additional submissions in relation to that letter.
4. The Local Authority provided brief submissions through counsel, by email yesterday, and the guardian has provided, through her solicitor today, some additional brief submissions. The Local Authority, through Ms Rahman, say that the letter received makes no difference to the Local Authority’s position and that they still make the point, as I go on to in a moment, that the mother has not accessed one-to-one therapy as she was advised to do.
5. The position of the guardian (as expressed to me via her solicitor who attends today, is somewhat confused in that she is reported as saying that the letter does not change her overall position but nonetheless raises questions as to whether the person named in the letter, the 30th July letter, is linked to a Community Mental Health team and what sort of approach she can offer and how that would be funded. It would have been open to me to adjourn this matter for some three or four weeks in order for those questions to have been answered, as was proposed by Mr Griffin, who appears today for the Local Authority, but these proceedings are already at 31 weeks and I need to make a decision as to whether today I can make a care order and a placement order as the Local Authority seek.
LAW
6. Ms Quinn on behalf of the mother has set out a summary of the fundamental legal principles in her position statement and for the purposes of this judgment now I do not propose to read those out in full; they are uncontroversial. I have particularly taken note of and in fact read in full the judgment of Mr Justice Hedley in the case of Re A in 2007.
7. I have also taken account of the case of Re S (A Child) [2014] EWCA Civ 25 where Lord Justice Mumby, the President of the Family Division, sets out the circumstances in which there can be an extension beyond 26 weeks, as set out in the public law outline, and that that is to be permitted only if necessary to enable the court to resolve the proceedings justly, and he notes typically three questions have to be asked: is there some solid evidence‑based reason to believe the parent is committed to making necessary changes? If so, is there solid evidence-based reason to believe the parent will be able to maintain that commitment? If so, is there solid evidence-based reason to believe that the parent will be able to make the necessary changes within the child’s timescale.
8. I have also had regard to the seminal case of Re B-S [2013] EWCA Civ 1146 and Re NL (A Child), Re (Appeal: Interim Care Order: Facts And Reasons) [2014] EWHC 270 (Fam) where Mrs Justice Pauffley says: ‘Justice must never be sacrificed upon the altar of speed.’ I have had regard to each of the parties’ right to a fair trial pursuant to Article 6 of the European Convention on Human Rights and to the parents’ and children’s right to a family life pursuant to Article 8. The court is only permitted to interfere with that Article 8 right if the court considers it necessary and proportionate. The burden of proof lies with the LA and the standard of proof is the simple balance of probabilities.
BACKGROUND
THRESHOLD CRITERIA
9. The parents accept that at the relevant date on the 17th December last year the threshold criteria are met. There were three matters contained in the Local Authority final threshold document upon which I have had to rule. I deal with this later. I attach the threshold as found by me as an appendix to this judgment and to the order I make today. It is accepted that there have been two sets of previous care proceedings in relation to (M’s older children). Those proceedings were following professional concerns as to the ability of the parents, F being the father of (name) to meet their basic care needs and their inability to be emotionally attuned to their needs due to the parents’ chaotic lifestyles.
10. In respect of the M’s eldest child a care order and a placement order was granted on the 26th August 2011. That decision of the Family Proceedings Court was appealed to me sitting at this court in Kingston and I upheld it, and permission to appeal my decision was refused by Lord Justice McFarlane in the Court of Appeal. On the 23rd November 2012 in respect of (older children) another court made a care and placement order and during that second lot of care proceedings both of the parents failed to engage with the court process and professionals.
11. The mother has presented as volatile. During the first set of care proceedings she underwent a viability assessment with a view to a full assessment at (unit’s name). Due to her aggressive and volatile behaviour, at times in the child’s presence, and her inability to take on professional advice that residential assessment was terminated early after four weeks in February 2011. The M has a long history of substance misuse, namely heroin, cannabis, cocaine and methadone, as well as alcohol misuse. She was working as a prostitute and taking drugs. She has stated that she is now abstinent from illicit drug use. She has had a number of arrests for possession of controlled drugs
12. The Consultant Adult Psychiatrist in a report dated 25th November 2010 said “the evidence that harmful use of alcohol has been an issue in the last 12 months is now quite strong” and that “she underestimates the risk that drinking alcohol holds for her in terms of elevating the likelihood of a relapse into drug use”.
13. The M has a history of mental health difficulties, including a breakdown, being admitted to a mental health unit under Section 2 of the Mental Health Act and attempted suicide. Dr J’s report dated 27th July of 2010 questions the accuracy of an earlier diagnosis of bipolar disorder and he referred to the mother as probably having some emotionally unstable, borderline-type personality vulnerabilities, possibly not reaching the threshold for a personality disorder. He recommended there to be involvement with the Community Mental Health team, but the mother disengaged with that service. In the psychiatric report within these proceedings, dated 21st March, the M was diagnosed most likely as having borderline personality disorder which at the time of stress could negatively impact her parenting capacity because she would be unable to prioritise the needs of the children and expose them to potentially a volatile home situation.
14. A matter in issue between the parties is a finding which the Local Authority seek namely that on the 26th July 2011 F assaulted M causing bruising. He was arrested. M refused to provide a statement and refused to proceed with a prosecution against him. It is accepted that there was conflict in the parental relationship which led to police attendance in February 2013. Dr J stated in his report of July 2010 that the M is predisposed to engage in relationships with violent partners. The mother does not accept she is so predisposed, but she has previously confirmed to professionals that she has been involved in several previous violent relationships.
15. The M has a history of criminal offending. It is the Local Authority’s contention that the twins are likely to suffer significant harm in the care of their mother and/or father in the form of neglect, emotional and physical harm.
ASSESSMENTS
16. Within the current proceedings the mother has undertaken drug and alcohol testing and since that began just over a year ago there is no evidence of misuse of drugs or alcohol. The Local Authority accepts this is a positive sign. The father has not provided a sample of hair for testing, as had been directed by the court, and failed to comply with court directions for the testing of saliva samples.
17. Dr.., consultant adult psychiatrist, undertook an assessment of both parents within these proceedings. She considered that the mother has made some improvements, but they are not of sufficient consistency, quality or duration to meet the needs of the twins and it appeared to her highly unlikely that any future improvements would be in the children’s pressing timescale. She said that the mother had a longstanding history of mental health difficulties. As I have said, the most likely diagnosis is borderline personality disorder. Her report sets out that an individual with significant personality difficulties tends to struggle when presented with stressful situations due to a lack of coping strategies, this would increase the risk of relapse into illicit drugs or further emotional or behavioural outburst and it is very likely that her current presentations are linked to early childhood experience and psychological difficulties.
18. It is her opinion that psychotherapy was required which would take approximately six months. Dr … thought it was paramount to ensure that the mother has access to long‑term psychotherapy and that she actually attends all sessions. Dr ….s opinion was that it would be very beneficial for the mother to continue her engagement with psychiatric services even though she does not believe she has any mental health problems. The therapy which the mother has been undertaking since the end of February, is 12-step therapy. According to Dr ….. that is primarily for addictions and generally not recommended as first-line therapy for individuals with personality disorder.
19. Dr …’s opinion was if the mother is engaging with this and is abstaining from alcohol this is a very good starting position, but would still leave the issues of the personality difficulties to be addressed. In answer to a question raised and answered during the course of the hearing last Dr …. said that she had not seen any formal feedback about the mother’s engagement in therapy. If it could be proven that she is currently engaging in any therapy this certainly would be a very good starting point. The information which I have from the letter produced yesterday, is that the mother attends every session, contributing significantly to the group process.
20. Dr …. sets out the father’s history of opiate dependency, with drug rehabilitation in 2003 then treatment in 2005-6 for heroin dependency, and he seemed to stop heroin use in 2009. Dr …… notes he seems to have had a successful detoxification from heroin with a relapse a year later and therefore he would be at risk from further relapses in the future.
21. The Local Authority arranged a parenting assessment to be carried out by their in-house organisation, SISP and Mr P came to court to give evidence. In his written report he says this:
‘On balance it is my opinion there appears no realistic manner in which to manage the various risks and needed interventions to enable the children to be rehabilitated to the care of their parents when considering their urgent and practical needs.’
22. Once the Local Authority had filed and serviced its final evidence proposing adoption the mother issued an application to instruct an independent social worker, and on the 2nd June I was persuaded that this was necessary and I granted the permission sought. The ISW’s report is dated the 14th July and her opinion is that the mother “has not sufficiently engaged with her recovery plan for consideration to be given to the children’s return to her care”. I will come on to more about that in a moment.
ALTERNATIVE CARERS
23. The parents identified longstanding friends of the mother’s as potential alternative carers, Mr P and Ms A they being a couple who ought to be assessed by the Local Authority. In fact this couple, after consideration, decided not to proceed as alternative carers, but are still available to the parents as support. A paternal aunt was also proposed as an alternative carer, but she chose not to proceed.
THE PARENTS’ CASE
24. The parents present as a couple. They seek that the twins be cared for by them both as a couple. The father failed to file any final statement prior to the final hearing and he failed to comply with directions as to hair strand and saliva testing. He filed and served a statement on the morning of the second day. It is the parents’ case that there is not sufficient evidence to rule them out now as carers and that a further period of about eight weeks should be allowed to enable professionals to build a coherent support network and provide some intensive parenting training, and in that time the mother could engage in psychotherapy. Her position during the hearing was that she had a first appointment with the Metanoia Institute for Psychotherapy yesterday on the 31st July. In fact that appointment was cancelled by them, not by the mother, and a new one has been made for the 11th August.
25. The parents’ case is further that the mother would and is willing to take up work with the Community Mental Health Team and that the Local Authority and the parents could set up a viable comprehensive support network. The parents submit that the eight weeks or so of an adjourned period would enable the Local Authority to see how the parents manage, work together, cope under stress, and that the parents would move in together. It is the parents’ submission through counsel that even though the proceedings have been underway for 31 weeks the court should allow this adjournment, as it is necessary to resolve the proceedings justly.
26. Ms Quinn on behalf of the mother submitted that there is evidence-based reason that the mother is committed to making necessary changes in that she has attended all professional appointments. She has paid for herself and attended therapy since the end of February. Ms Quinn further submits there is no reason to doubt the mother will maintain that commitment and that she can make necessary changes within the children’s timescale in that she has come a long way on her journey. She has abstained from the drugs and alcohol which were obviously of great trouble to her in earlier years. She has not relapsed despite the stress of these proceedings, and that she has maintained her mental health through a combination of community support from her church and attendance at therapy and that the mother is committed to attend psychotherapy.
27. It is submitted on behalf of the mother that she attended and went back to therapy with Dr …. because she knew him from a few years ago, but if psychotherapy is recommended she would certainly want to take that up. The mother through her counsel emphasised that she has made significant improvements to date in that she now leads a stable, settled life, and the guardian herself said that there had been significant improvements observed by her, she being the guardian in the last set of proceedings.
28. It is right, submits the mother, that she had significant problems in respect of drug misuse in the past, but she has not used any illicit drugs she says now for more than four years, apart from cannabis once during her son’s pregnancy, and, as I have said, the drug and alcohol tests are negative for the last year. The mother accepts that she has had relationships in the past with violent partners. She does not accept that her relationship with the father has ever been violent. The mother accepts that in February 2013 last year she had a disagreement with the father and she called the police, but it is the mother’s case there is no evidence of any incident since. It is submitted further on her behalf the mother is not involved in any criminal activity now and she leads a stable life.
29. As to her mental health, in July of 2010 Dr …… recommended DBT. Within the current proceedings when Dr …. saw the mother in February of this year the mother presented as stable; the essence of the mother’s case is, despite the undoubted stress of the past few months in these proceedings, she has not relapsed into drug or alcohol use, she has not had any emotional behavioural outburst or experienced psychotic symptoms and that she is committed by virtue of paying for and attending group therapy, which the mother says helps her with stress and emotional regulation. The mother has cooperated with all assessments prior to and within these proceedings and also antenatal appointments.
30. It is a fact that the parents have never lived together and do not live together now. The father lives with his own mother. The parents both said that that was due to this ongoing case and the father said in his evidence that when he has more clarity about what is going on in their lives they will live together. He told me that when he was filling out a job seeker’s allowance application he put his status as “separated” as he was advised that there were three options – single, married or separated – and he was told that if he put married they needed to be at the same address.
31. The Local Authority and the guardian acknowledge that there are a number of positives which the court needs to place in the balance when considering these care order and placement order applications; the children are clearly loved by their parents and, apart from the father’s non-engagement in drug testing, the parents have both engaged within the assessments and within these proceedings and they have attended contact regularly. The quality of the contact according to the guardian is impressive.
32. The Local Authority, the independent social worker and the guardian are unanimous in their recommendation that despite the positives the parents, together or separately, would not be able to care for the children. The decision as to whether nothing else will do but adoption is not one for the experts, and not one for the witnesses. It is a decision that I need to make after weighing up all of the evidence and, as I have said already, this highly experienced guardian regards this as a complex and difficult case.
33. There is an important factual issue contained within the threshold criteria and the Local Authority sought a finding that on the 26th July 2011 the father assaulted the mother, causing bruising. The father was arrested and that the mother refused to provide a statement and refused to proceed with a prosecution against him. By the time the proceedings began there was a police summary of the CRIS report at J10 of the bundle and the father filed a statement on the second day of the hearing, prior to the fuller CRIS report being produced by the guardian from her papers in the previous proceedings, and he said that the incidents that were set out at J10 did not involve him or any other partner.
34. In her oral evidence about this day the mother said she was wearing only a bra on her top as reported because this was a training bra and that she and the father had been training or exercising, which accounted for the bruises and red marks on her arm. This is not referred to at all by the police in their account. In his oral evidence the father said in examination-in-chief that contrary to his own statement he was in fact at the scene. He says that the police are lying in the CRIS report and that a police officer, the same one, arrested him twice in 2011 and 2012.
35. I have had to remind myself that the fuller CRIS report upon which the Local Authority and the guardian rely was produced within the hearing and after the parents had filed their evidence. There was no live evidence from the police and no opportunity for the parents to cross-examine the police as to the contents of the CRIS reports. The burden of proving any fact lies on that person who seeks to prove it and I have to be satisfied on a balance of probabilities.
36. The father had very clearly stated in his statement that none of the incidents at J10 related to him, and then he changed that account within two days when more detailed CRIS reports were produced. The mother, according to the police evidence, did not give any account to them of her exercising or training having caused bruising or red marks. If the parents’ accounts are true, knowing that the question of violence in their relationship was an issue for the Local Authority, I do find it surprising that they did not say previously, ‘Well, the father was arrested and detained by a corrupt police officer who ignored the mother’s account of an innocent explanation.’ In fact the father in his first statement denied all violence towards the mother.
37. My attention was further drawn to the father’s Facebook account which contains an entry on the 27th July 2011: ‘I just caught fucking out on my girl. What shall I do?’ In oral evidence the father said his Facebook account had been hacked and yet I note I was told by the guardian the entry remains live. The father also told the court that he was in custody after his arrest on the 26th July for 48 hours, so this entry could not have been put there by him. In fact according to the police evidence the arrest was “NFA’d”, no further action taken, at 5.00pm on the 27th July, well before 48 hours had expired and giving the father several hours to post this message. He himself said he was not released until 9.00pm, which, even if he was correct, he still had the opportunity to post an entry on Facebook that day, and as his evidence went on about this particular event I was less inclined to believe him.
38. Having heard their accounts and considered the police evidence, which is hearsay, and reminding myself again that the parents have not had the opportunity to cross-examine the makers of that evidence, I find that I am satisfied on the balance of probabilities that the father assaulted the mother on the 26th July as alleged by the Local Authority, and I insert that into the threshold criteria.
39. There were two contributors to the SISP assessment: . Mr P gave clear and thoughtful answers in his oral evidence. He confirmed that he had taken into account that the mother had recently given birth to the twins when he was assessing her. He told the court that the mother’s first session with him was relatively overwhelming and she had a lot of anxiety, distress and worry and he had never experienced such a strong presence of distress. It was his opinion that her excessive reactions to stress show her lack of capacity to cope, especially when considering the needs of the children. He found her difficult to focus and follow and make sense of and that there was a real sense of her emotional pain. For example, when she spoke of the loss of her first child it seemed very present he said.
40. He was very concerned about the parents’ insight into the reasons for the Local Authority bringing the proceedings. The mother had said at one time that she did not know the reasons for the care proceedings. She said that children are put up for adoption for financial gain and that the residential unit made money from the adoption of her daughter. The last session that Mr P had was on the 17th March, just some two weeks after she began therapy with Dr …’s group. At that point she said that she did not know why she was seeing Mr P and she alleged that the Local Authority had worked with the father of her first child to ensure she was adopted.
41. The father said to SISP that the older two children were adopted for financial gain and it seemed to Mr P that the father took little responsibility for his criminal offending. I will deal with his evidence later, but it certainly seemed to me that the father minimised his criminal offending. In oral evidence the conclusion of SISP was maintained, that the parents would struggle to attune and adjust to the children’s emotional needs, particularly as their needs develop and change over time, and that, if the parents did struggle, would expose the children to detrimental and inconsistent parenting.
42. The independent social worker, was instructed by the mother. She met with the parents and she observed contact and provided a detailed and comprehensive report. She was thoughtful, measured, calm and fair in oral evidence. I had not seen her myself as a witness previously and I can quite understand why she was chosen by the mother’s solicitors as a suitably experienced independent social worker. The ISW said that the mother has not to date accessed ongoing services in the community for any mental health needs. She said there are questions as to whether the therapeutic support she has accessed is sufficiently robust to enable her to benefit in the way that Dr …has suggested.
43. She went on: that the mother has not received any form of monitoring from any community service, it would appear there is no corroboration of her progress or otherwise. She said that the parents’ care within contact was good enough, but the risk factor for the mother is life stress and her underlying propensity to such stress from her borderline personality disorder, which increases the risk of relapse and associated poor lifestyle choices. For the father there remains the risk of relapse due to his history of heroin use, which in the independent social worker’s opinion has not been fully explained.
44. She found it difficult to assess their current relationship as to the amount of time they spend together. At one point the mother told the independent social worker that she did not believe she was in need of services for mental health support. Her view is that whilst it is commendable that the mother has reduced her use of alcohol and substances she remains at risk of relapse and her concerns, the independent social worker’s concerns, centred she told me on the mother not accessing a service which could monitor her wellbeing and emotional health because the children are very young and totally dependent on their parents for all their needs to be met.
45. The ISW said the mother needs to demonstrate she can make and sustain changes to her lifestyle, to access treatment and seek help. She – and this was echoed by the guardian – thought that the mother was at the beginning of her journey of recovery and not sufficiently engaged within a recovery plan for consideration to be given to the children’s return to her care. She accepted the mother may not be at the starting point, but the issue is of sustaining change and she emphasised that Dr ….. had recommended the mother engage in psychotherapy.
46. The social worker, is the author of the final evidence and the placement order documentation and he, not surprisingly, relied upon the Local Authority parenting assessment carried out by SISP. Cross-examination of him was largely about the care plan and about the Local Authority’s ability to provide a package of support. It was suggested that the SW had not in his evidence included sufficient positives about the parents. He denied this and my attention was drawn to a number of positives that are set out in the care plan and the statement.
47. I was told a family finder has been allocated, and that the current foster carers would not be in a position to adopt the twins and that the (older child’s) adopters have been ruled out and that (the other older child’s) adopters would be considered alongside, as he said, any other adopters. This was changed later in the evidence, or rather clarified, that they would be considered first before any other adopters. As to timescales, matching could start relatively soon he said and placement by October or November if I were to make a placement order now.
48. He gave further evidence, pursuant to his first statement in relation to the father’s drug tests. He told me that when he was with the tester in February when both parents were being tested that he saw stubble on the father’s arms. He asked the father whether or not he had shaved and the father had said no. He did not discuss that with the tester. The test did not take place because the father had no hair on his head, but it was the SW’s clear position that he saw stubble on the father’s arm. On the 28th March he took a photograph of the father for the purpose of including it within the child permanence reports and he drew to my attention that one could see that the father had hair on his head in the photograph.
49. The SW was cross-examined in some detail about his position as to the initial threshold findings that had been sought about the mother’s involvement in criminal proceedings and the social worker clearly wished to rely on the fact that the mother had been arrested on some occasions which have resulted in either a not guilty verdict from a jury or no further action. He seemed reluctant to see that these were not findings upon which a court can base any prediction or likelihood. He eventually agreed that there was no evidence of crime committed by the mother, and a certain amount of time I have to say was wasted upon this because of the position that was taken by the SW.
50. There was at the commencement of the hearing some detailed discussion and submissions by the advocates, in particular Ms Quinn and Ms Rahman, relating to the alcohol testing that the mother had undergone and what that testing showed, and despite Ms Rahman, accepting the legal position on behalf of the Local Authority that there was no evidence that the mother had used alcohol, the SW’s view in evidence was that one of the tests, the middle one of the three, did in fact show that the mother has used alcohol. Perhaps both of these parts of his evidence relating to the alcohol testing and the criminal activity demonstrate lack of experience with the court process, but I do not think this judgment can go by without my noting that I was concerned about his approach.
51. In relation to the parents the SW felt that he had a good relationship with them, that is certainly echoed by the father himself, if not by the mother totally. It was the view of the Local Authority, expressed through the SW that the level of support which was required for the parents was not possible to provide. He accepted that SISP do have a psychotherapist that they can call upon He confirmed that a referral to her not been considered. He accepted in cross-examination that it was possible to put ‘a team around the child’ scenario into place, including, for instance, health visitor visits and the Community Mental Health team.
52. He conceded that it was significant that the mother has shown that she is committed to therapy and that she regularly attends. Despite other detailed cross-examination about the Local Authority’s position, the SW was clear that the Local Authority had made a decision that this was the appropriate time now to finalise the case and that there should be no further adjournment.
53. As to the parents’ relationship the witnesses to whom I have referred so far – the social worker, the independent social worker and the social worker – all refer to the fact that the parents live separately despite their being married for over two years and despite them presenting as a couple, and I am asked by the Local Authority to take this into account it being submitted that the parents have not evidenced that they have been able to sustain a cohabiting relationship because they have never lived together fulltime.
54. The father was unable to give any reasons to SISP as to why he did not live with the mother and yet they cite each other as their main source of support. The mother said to the ISW when she saw her in June, ‘Our marriage is in tatters. We have no home. We should be enjoying our children.’ There was a time in February of this year when the mother was considering separation and she told the SW this and told also SISP. It is said that the father is emotionally indifferent or showed himself to be emotionally indifferent by saying, ‘Well, there is no point interfering with her if she wants to separate.’ Even at the time when the mother told the social worker in February of this year that she was very unhappy with the father and thinking of separating in answer to his enquiries of her she confirmed that there was no physical abuse between them and she said in oral evidence that her tolerance of abuse was zero.
55. I want to deal separately with the question of the father’s hair strand tests or lack of hair strand tests, saliva tests or final evidence because it is relevant in relation to the question of the parents’ engagement with services. One of the concerns of the independent social worker is that a lot of information given to her, particularly about the father, could not, as she put it, be triangulated, i.e. verified, and the guardian gives an important example that the mother did not and would not give the guardian contact details for her brother and sister.
56. I directed hair strand testing of the father take place, he said on the 17th February that he had insufficient head hair to collect a sample and that he had no body hair. As I have said already, the SW noted that the father appeared to have stubble on his arms, indicating that his hair has been removed for testing according to the SW. In oral evidence the father said he had shaved his head but had no body hair. I have seen the photograph that the social worker took on the 28th March which clearly shows hair on the father’s head. I have also seen the father’s photograph on his Facebook page from 2011 and, albeit three years ago, this clearly shows, if anything, quite thick, dark arm hair and chest hair. The father also failed to attend to give saliva samples for alternative tests for drugs saying that every time he had an appointment he has to work or attend a course.
57. I conclude that he was avoiding being tested for drugs and alcohol and that he was uncooperative. He told me in evidence that he has not used heroin for years and he has not drunk alcohol for years. It is important that I note there have been no reports of him appearing under the influence of either drugs or alcohol. He has held down employment for years, attended appointments on time and his home is well maintained and cleaned, so it is puzzling. It is puzzling as to why the father did not cooperate.
58. The Local Authority asks me to conclude that the father wished to hide the use of illicit drugs or excess alcohol. I cannot go that far. I can say that I cannot understand why he avoided being tested. I am suspicious as to whether there is a motive of wanting to hide any use, but I cannot be satisfied, as Ms Rahman submitted, on a balance of probabilities that it means that he is using illicit drugs and/or alcohol. I can be satisfied that he did not cooperate with these important tests.
59. Equally, he failed to provide a final statement. He said he was too busy at work to provide instructions to his solicitor. I accept, as Mr Rawcliffe on his behalf urged, that the documentation shows that he was supposed to attend job seeker allowance courses. Given the care plan for his twins is adoption I do not think that is a reasonable excuse for failing to give instructions to his active and involved solicitor. I should note that the father does not seek to blame his solicitor at all.
60. As to the father’s approach to his criminal history he said in his first statement that he had got into trouble as a teenager, but did not recall the details. In fact the details show there were eight offences from 1990 to 1994 from the age of 15. He said in oral evidence that these were silly offences maybe and in fact he was only a teenager. He was underplaying clearly his criminal offences in my view.
61. He also said in his first statement there was an ABH charge on a friend in 2006 and he got a fine. In fact in 2006 there was a criminal offence of threats to kill with a suspended prison sentence. The F’s response was, well, that was a long time ago and he was with a group. As to an offence in 2012 of obstructing a police officer in a search for drugs he said that the same officer who stopped him in 2011 had stopped him and, as he put it, ‘put a charge on me.’ He had not told the mother about his criminal history. She had to find that out from the Local Authority.
THE MOTHER
62. The mother gave detailed evidence before me over 2 days. She seemed much more anxious on the second day and Ms Rahman on behalf of the Local Authority asked me to take that into account. I think what I do have to take into account is that these are proceedings which make any parent anxious and I am well used to seeing anxious parents and indeed sometimes anxious social workers give evidence. I got the impression that because the mother’s evidence was part heard overnight that she had thought about her evidence and was keen to tell me certain matters which she had been thinking about overnight and wanted to make sure she did. I do not think I can draw any more than that, not being a psychotherapist myself.
63. She was very clear that she had stopped taking illegal drugs some years ago and had not drunk since she was pregnant with her first child. She did not engage in the last care proceedings she said because she and the father were advised by their lawyer not to attend or take part in assessments. When it was put to her that she had thought that Local Authorities were in a conspiracy to remove her children I got the impression she was deflecting her answer when she said, ‘I have a better understanding of the primary function of a Local Authority now. I don’t think all social workers are the same.’
64. She said she was not worried about the father’s criminal history when she heard about it because it was in the past and he did not display that kind of behaviour to her. She was not worried that he would go back to using drugs, that he is quite sensible and responsible. As to why she had gone to Dr ….. rather than to psychotherapy elsewhere, she said that, ‘Dr …. was the first person I have let my guard down to and some of these childhood incidents are very difficult to talk about with a stranger.’ She knew that the professionals were recommending psychotherapy but she chose to go to Dr ….. as a result, but she told me in evidence, ‘I am considering psychotherapy at this stage.’
65. She had been to her GP in January of this year. She accepted there was a recommendation for her to go to the organisation known as Metanoia but she chose to go to Dr ….., and I now know that earlier this week she herself obtained from him a letter dated the 30th July setting out that the group she is attending is facilitated by a UKCP-accredited psychotherapist and senior accredited BACP member who trained at the Metanoia Institute in clinical practice for some 20 years; Dr …. is the other facilitator and he is a councillor and clinical supervisor.
66. The mother was cross-examined as to her support network. The Local Authority say that it is a limited support network. Her friends who were assessed as alternative carers, but who withdrew from that, are still putting themselves forward (says the mother) as support for her. She told me that she had known them for 16 years and that they are available, as they confirmed to the independent social worker, around their own school and childcare duties and at the end of a phone. The mother clearly thinks they would be good support, although they live some I think 45 minutes journey away.
67. The mother had also given information about other supporters, some of whom did not reply to the independent social worker’s enquiries, one of whom at least an incorrect telephone number was given or another one who provided no reply to the ISW’s s text. The mother was quite defensive when asked about her support network in evidence and when she was asked about the surnames of two people whom she had put forward she said, quite sharply I thought, ‘I don’t remember ever surname of people I meet. I don’t start conversations with people, “Hello, what is your surname?”’ which was, as I have just said, quite defensive considering that these are people that she is putting forward as part of her support network, and it is important that I should note that.
68. She agreed that she told the guardian that she felt her sister was a support and that she saw her regularly and she accepted that the guardian had told her that she should tell the Local Authority about her sister and she refused to give the guardian the number of her sister, in fact or her brother. She said that she knows where the Community Mental Health team is if she feels that her mental health is deteriorating and she will access that if she needs to. She told me in oral evidence about the 26th July incident, with which I have already dealt. I simply did not accept her account and the evidence is made out. That finding is made out.
69. As to the question of why the parents are not living together, she said:
‘We tried to build our relationship and our home life. He comes to my home at the weekends. He will move in with me at the same time as the twins come back and he’s not there already because the twins are not in our care. We are two separate people and he is entitled to his own opinion about our living arrangements. It wouldn’t necessarily be a big change when we start living together.’
70. When she was asked why she told the ISW that her relationship was in tatters when she saw her in June she said that what she meant to say – and she accepts saying that to the independent social worker – was that she wanted to be in a position at this stage in her life where she could buy a house, they could buy a house together and a car and live a normal life. She told me that the father’s three older children, do not come to her house and she does not know why and she has not asked.
THE FATHER
71. The father gave quite flat and unemotional evidence. However, I have read many of the contact notes and his warmth towards the children is described on many occasions within those records. As to when the mother wanted to end their relationship in February of this year and how he felt, he said, ‘I felt a little bit upset. I love my wife. I don’t want to separate from her.’ He said, ‘We do plan to move in together and we haven’t done so before because of the case.’ He was vague as to whether he had said previously the children were adopted for financial reasons.
72. He regards his mother, who is aged 67 and with whom he lives, as available as a support and his two sisters as supportive. He gave evidence about the 26th July incident and also about the events around the drug and alcohol testing. He was clear, as was the mother, that his position is he has never been violent to the mother. He could not really explain why he had said that the list of police incidents at J10 were not incidents involving him, involving the mother or any other partner.
73. He, like the mother, was not able to give any great explanation as to why they were not involved in the earlier care proceedings, in sharp contrast to their great involvement in these proceedings. As to the role he plays in the mother’s therapy he says he has seen a change in her since her therapy began, that she is more clam, she is relaxed and positive, and that he drives her there and he talks to her about her therapy. The father was measured in a great deal of the evidence he gave, sometimes quite limited in his answers, certainly not as effusive as the mother in describing events and it was harder to get his evidence out.
THE GUARDIAN
74. CG was the guardian for the parents’ older child. She had never met the parents within those proceedings because they refused to, but she had spoken several times to the mother, often when the mother was at work. She said she was very pleased and encouraged to see the parents have taken legal advice within these proceedings, in sharp contrast to the last ones. She told me that she had been clear with the parents early on that the mother needed to engage with the Community Mental Health team and be open and honest with professionals and engage with them. She said that she stressed the importance to the parents of this and also the importance of the hair strand test results.
75. The guardian told me that she saw photographs of the mother that the mother showed her of her sister with a baby, and the guardian had been quite surprised because earlier in the proceedings she had tried very hard to get the mother to reveal details of her brother and sister and the mother had refused. The guardian had the clear impression the mother and her own sister saw each other regularly and the mother refused to give the guardian her contact details saying she did not want the Local Authority involved with her sister. The guardian’s observation of the mother’s oral evidence was that the mother still found it painful to talk about her sister. The guardian seemed sad and frustrated that the twins have an aunt and uncle about whom she, their guardian, knows nothing.
76. The guardian described the parents as courteous and polite to her, the mother being intelligent and articulate. Sometimes she rants and raves and then calms down, and she says of the mother, ‘She has such a lot to offer.’ She demonstrates commitment to contact and appointments, as have they both. The guardian said she agreed with the ISW that there has been some movement, especially from the mother, who in her view is on a journey to look at herself, but it will take time. She needs psychotherapy, as has been recommended back in 2010. The guardian accepted that the mother’s belief is that she has benefited from the group she has been attending since February but, said the guardian, until she is engaged in any proper psychotherapy it is very difficult to know how she has benefited from this therapy.
77. She was perplexed, as I have indicated so was I, as to why the father has not provided samples in relation to drug and alcohol testing. The guardian was freely accepting that the parents have made great change, particularly the mother has made great change from the position she had been in, but she says that the mother’s unresolved childhood issues are deep‑rooted and that she has not sought the right and appropriate help to resolve them. The mother is bright and articulate, she said, aware that psychotherapy is the best treatment option.
78. The guardian was not convinced that the mother is ready to pursue the difficult path of psychotherapy, which may be why she chose to see Dr ….. and if she were to engage with psychotherapy she would need it for at least six months, says the guardian, until there would be any change to her emotional functioning which might allow her to safely parent the children, which in the guardian’s view is not in the children’s timescale and that the father’s history cannot compensate for the mother’s functioning.
79. The guardian also puts into the mix a lack of clarity in relation to the parents’ relationship and the fact that if they moved and when they move in together for the first time that could bring stress as well. She said in summary:
‘The twins are seven months old. I don’t think they can wait to see if the mother makes sufficient improvements. They have made changes, but they’re not fully there. The mother has made some steps, but her emotional functioning is not where it should be to allow her to look after the children for the rest of their lives.’
80. She went on:
‘I have thought long and hard about this case. There are too many unknowns to feel confident about returning the children to their care. I accept she has not shown negative reactions to the difficult times within these proceedings, however. For example, when the mother was told that the Local Authority plan was adoption when the twins were only 16 weeks old the mother did not show a negative emotional reaction.’
81. She said the parents put themselves forward as a couple and if the mother had a strong and capable partner who could assist it may be different. She accepted that the father is very good, and indeed used the word ‘impressive’, in contact.
82. The crucial question: have I sufficient information now to make a care order and a placement order or is there a gap in the evidence which needs to be assessed? The care plan the Local Authority proposes is draconian and I would have to be satisfied today if I were to make those orders today that it is in their best welfare interests and that nothing else will do. I also have to consider what support and assistance could be put into place to enable the children to be brought up safely by their parents. The parents propose an approximate eight‑week adjournment and they say that this would allow the professionals to build a coherent support network and provide some intensive parenting training and the professionals could scrutinise the relationship in a way that it has not been before.
DISCUSSION
83. It is clear that the mother and father love their children very much. They have demonstrated that in different ways within these proceedings. The mother has made enormous changes from the chaotic life that she led a few years ago and even in the proceedings involving her last child in 2012 she was not engaged at all, a very different picture now, and the guardian has commented upon the considerable improvements in that. There has been a very long period of abstinence for the mother from drink and drugs and Dr ….. remarks that the longer a period of abstinence the more optimistic that one can be.
84. There has been real stress and strain to the parents within these proceedings inevitably. The Local Authority made a decision at an early stage, at 16 weeks – and I do not criticise them for that; they have to look at the public law outline and make decisions that they think are appropriate – but only 16 weeks after giving birth to twins the mother was told these children according to the Local Authority plan were to be adopted, and the mother was extremely upset about that and apologised the next day to the contact supervisor for her outburst.
85. The Local Authority not only point to that but they point to another occasion when the mother has been unable to regulate her emotions within these proceedings, again in contact when she was told she could not carry one of her children out to the car and she reacted inappropriately by putting one of them down, putting him in his buggy and walking away. She accepts that that was inappropriate, but says that she simply did not understand the confusing messages that she had been given, but those are the only two occasions the Local Authority can point to.
86. I can conclude that the mother is committed to making changes; she has contributed meaningfully to her therapeutic group for 4 months now. She has already made huge changes in her life. Dr …… recommended 6 months of one to one psychotherapy.
87. I do have to bear in mind that despite the huge stress that undoubtedly is on this mother she has not succumbed to drink, drugs or emotional outbursts. She clearly has personality traits, and Dr …… diagnosed her with a personality disorder, but the key issue has to be her ability to manage that stress and her ability to regulate her emotions. What is the risk? The risk of neglect, emotional and physical harm. If the mother’s mental health was unstable and her emotions were unregulated the children would be at grave risk of harm, so the key question has to be can the mother manage stress? How can she be helped to manage stress? What is the appropriate monitoring? Can there be appropriate monitoring to identify difficult periods?
88. The application the Local Authority makes is one about which any court has to think extremely carefully and I do not discount the fact that the independent social worker, the guardian and the Local Authority, do not recommend a period of adjournment and they recommend I make a decision now. I have had to consider the weight of that evidence and that recommendation very carefully, but I do not think that I am in a position to say today nothing else will do but adoption. In my judgment that the proportionate response to what the key issues are is to see whether there can be a sufficiently robust package of monitoring and support for this couple.
89. I accept the parents are not living together at present. That would be a change in their relationship. They need to show how they can be a couple and be together. There have been instances where the mother has listened to the father when he has acted entirely appropriately to give her advice. For example, the mother spoke inappropriately to another child in contact about adoption – one of the two instances the Local Authority drew to my attention. The father spoke to her about this. The mother listened. She apologised that day. She apologised the next day, this is an example of how they are perhaps able to work together, and how he is able to give advice to her which she follows.
90. Both the guardian and the independent social worker saw a number of positives. The guardian herself regards this as a difficult and complex case and I entirely agree with her. It is not the decision of the guardian or the independent social worker or the agency decision-maker. It is mine. I take responsibility for looking at the case in the round and no one is more acutely aware than I am that the twins are seven months old. I think it would be very easy to say for me to conclude it is not in their timescales, and go no further, and I am just simply not prepared to say that at this stage. The care plan is draconian; I would have to be satisfied that is in their welfare interests and that there is no alternative. I must also consider what support and assistance could be put into place to enable the children to be brought up by their birth parents.
91. Where do we go from here? I am not at this hearing prepared to grant the Local Authority’s application. I consider their applications should be adjourned and I require the Local Authority to consider what support plan can be put into place, to include, but not limited to, the mother engaging with the Community Mental Health team and taking up one‑to-one psychotherapy. The guardian says that preferably her psychotherapist should be linked to the Community Mental Health Team and that she would like to know more about who is involved with such a team
92. There needs to be detailed dialogue between the mother, the father and the Local Authority as to a package of support, including Community Mental Health team engagement, one‑to‑one psychotherapy, looking at the support network and the purpose of the support network. Some supporters clearly can be advisory by telephone. Some support may be, ‘Can you provide one-day-a-week babysitting? Can you provide two-mornings-a-week babysitting?’ The Local Authority social worker has not contacted any of the supporters put forward, but now is that opportunity.
93. The parents have indicated that it was only the proceedings that were stopping them moving in together. This is an opportunity to see whether their relationship, their marriage, can move to that next stage, and it was indicated to me in submissions that they did plan to do that. I would have thought that they would benefit from work as a couple, for example, from Relate, and I do require the father to undergo the drug and alcohol tests that I have already set out.
94. There needs to be some thinking, and wide-ranging thinking, as to how the Local Authority can put a robust package into place to protect these children with sufficient monitoring so that the risk of relapse, which is plainly the major concern of the Local Authority, can be dealt with and the risks minimised. The social worker has not yet done that – the Local Authority’s plan was quite a different one – but they do now have an obligation to consider the judgment which I have just set out and as to how they can put this forward.
95. The submissions that Ms Quinn made on behalf of the mother and supported by the father sets out the package of support which I have just indicated, but I am sure that there will be and can be some additional discussions. The question of funding of therapy may or may not be an issue and I do not expect today the parties will be in a position to deal with that. I will hear submissions as to when I should next list the matter. I could, for instance, list it in approximately three weeks to consider how the Local Authority propose to put my decision into practice, when the appropriate end date for the final hearing should be and to hear any arguments as to funding at that stage, but I am open to hear what the parties have to suggest in relation to that.
96. I do want to emphasise that the decision I have come to is one where I have fully considered all of the evidence and in relation to which I have thought of little else over the last two days. I ought only to depart from the recommendations of a Children’s Guardian with good reason. I hope that the parents can take this opportunity to be as open as possible with the professionals to recognise that some trust is being placed in them and to take this opportunity to use it as best they can. I have not shied away from my criticisms of certain elements of their evidence.
End of judgment.
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