England and Wales Family Court Decisions (other Judges)

Case No: UW13C00130

IN THE SWINDON COUNTY COURT

Swindon Combined Court

Islington Street

Swindon

SN1 2HG

Date: 2 May 2014

Before :

Her Honour Judge Katharine Marshall

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Miss Pine-Coffin (instructed by Wiltshire Council) for the Applicant Local Authority

Miss Harris (instructed by Stone King solicitors) for the Respondent Mother

Miss Locke (of Bevirs solicitors) for the Child

Hearing dates: 22, 23 AND 24 APRIL 2014

- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

HER HONOUR JUDGE KATHARINE MARSHALL

Her Honour Judge Katharine Marshall :

1.                  This is my judgment following a final hearing in care proceedings brought by Wiltshire Council (LA) concerning E, now aged 8 months. E’s mother is M. M was married to D at the time of E’s birth, but DNA tests have confirmed that he is not E’s father although he originally believed he was. A formal declaration that D is not E’s father was made by this Court on 13 March 2014. At his request D was also formally discharged as a party to the care proceedings. The identity of E’s birth father remains unknown.

2.                  E is represented in these proceedings through her Childrens Guardian, Khadija McCombie.

3.                  E was born very prematurely at 25 weeks, and as a result she required intensive special care. Initially there were concerns that E would not survive and this was no doubt a very worrying time for M and D. E remained in hospital until 29 November 2013 when she was discharged to a residential placement at Richmond Lodge (RL), together with M, for the purpose of a family assessment. At that time D had unavoidable work commitments and so it was intended that he would join M and E at RL from Thursday through to Sunday evenings.

4.                  Care proceedings were issued on 20 November 2013, the LA having already commenced work with the family pre-proceedings, including carrying out a risk assessment and obtaining a psychological report on M from Dr Drayton. The trigger to issue proceedings appears to have been the Royal United Hospital (RUH) indicating that E was ready for discharge. During the time E was in RUH, there were no concerns about the care E was being given by M and D, who were being guided and supported by the nursing and medical staff. Nor were there any significant concerns about their co-operation with professionals.

5.                  E is M’s sixth child. M does not have care of any of E’s siblings. Threshold in these proceedings is not in dispute; it is agreed that in previous proceedings in relation to her older children M admitted that the children had been neglected in her care. M accepts that her basic care of those children was of a poor standard, that one child suffered significant developmental delay and severe growth impairment and had delayed speech and language development, and that another child’s growth had fluctuated. M further accepts that she was in a relationship characterised by significant domestic violence. In the light of those admissions I am satisfied that the required threshold criteria are met on the basis that E is likely to suffer significant physical and emotional harm within the meaning of s.31(2) Children Act 1989, attributable to the care likely to be given to her not being what it would be reasonable to expect a parent to give to her.

6.                  Additional issues arise in these proceedings in relation to M’s ability to work openly and honestly with professionals, ability to effect change, and specifically whether M ignored medical advice about how E needed to be fed and whether that was the cause of E requiring hospitalisation in the early hours of 9 December 2013.

7.                  After that incident, E returned with M to RL, but on 13 December 2013 a decision was reached by ML, the assessing social worker at the unit, that the placement had become untenable. ML gives the following reasons: “Since E’s admission to hospital on 9 December 2013 her caring needs have become increasingly complex. Not only have the risks to E’s health increased as a result of her caring needs, we also believe that there is a risk of non-engagement with M in light of her adversarial presentation on 12 December 2013.” E was removed to a foster care placement where she remains.

8.                  I was pleased to have been shown a picture of E, she is undoubtedly a beautiful baby. The LA social worker, Anna Shaw, described how E is making good progress in her placement. She is sleeping well, has just moved on to eating small amounts of solid food, and responds to her foster carer. The Guardian who visited E earlier this month, described her as “securely attached” in the placement. I understand E’s development has not yet fully caught up with her chronological age, and will continue to need close monitoring in view of her very premature birth.

9.                  After the RL placement ended, M and D’s relationship, which had already been in some difficulty, broke down and the issue of D’s paternity was raised and addressed. M made allegations against D of domestic violence and sought and obtained a ‘without notice’ non-molestation order. That order was subsequently discharged at a later hearing.

10.              M is now living some considerable distance from where E is placed and she has not had contact with E since 8 January 2014. She has explained that having missed some contacts in January 2014 she concluded that it was not in E’s best interest to reinstate contact given the possibility that E may not be returned to her care. She now accepts that, with hindsight, this may not have been the right decision for E.

11.              The LA’s position is that if it is found that the mother knew and understood the advice given at the RUH in respect of feeding; that she deliberately contravened that advice for her own purposes; that the result of that was that E was admitted to hospital, then those are serious findings indicating a mother who cannot be trusted with the care of a small and vulnerable child. Furthermore, the LA submits that M has a long history of being untrustworthy in terms of being able to form co-operative relationships with professionals.

12.              On behalf of the LA it is said that the consequence of those findings, if made, together with the long history of inadequate care, leads to the conclusion that the Court has enough information on which to make final orders and that there should be no further assessment of M.

13.              M’s position is that she did not deliberately take steps to cause E’s admission to hospital, nor did she intend to harm E in any way. She asks the Court to find that she bears no culpability in relation to this incident, that in changing E’s feeding arrangements she was following advice from those at RL which she now regrets doing. It is her case that the assessment originally directed should continue so as to inform the Court as to whether E could be safely returned to her care in future. She recognises that she will need therapy and is willing to ‘do what it takes’, including entering supported accommodation.

14.              The Childrens Guardian has filed a position statement in the care proceedings and a full report in the placement proceedings in which she sets out her support for the LA’s applications in respect of E. Having heard all of the evidence, her position had not altered.

15.              Over the course of 3 days, I heard evidence from ML (the assessment social worker), SS (keyworker) and GM (support worker), all from RL; DR, the health visitor for RL; Anna Shaw, the LA’s social worker; Dr Newbury, the consultant paediatrician treating E at Musgrove Park Hospital (MPH) on 9 December 2013; MS, from the Speech and Language Team, and MG, nurse, both involved in E’s care at RUH; M; D; and the Guardian. In addition, I had available to me the documents filed in the court bundle, including medical notes and reports from RL.

16.              I start by considering the factual findings that the LA asks the court to make in relation to M’s care of E and the events of 9 December 2013.

17.              M was originally breast-feeding E once she no longer needed to be fed by tube. However, M wanted to introduce E to bottle feeding in case E needed a ‘top-up’. She has told the court that although she knew there were no concerns over E’s weight, she was anxious that E might not be getting enough breast milk. However, E struggled to cope with bottle feeding and it is not in dispute that MS was asked to carry out an assessment of E’s needs. After trying E with different teats, she noted that E was sucking well, but not stopping to breathe. This was causing E to ‘desaturate’, in other words her blood oxygen levels were dropping. She advised that a slow flow teat should be used, that E should be ‘pace fed’ allowing her 3 to 4 sucks then removing the teat and waiting for E to pause and take a breath, to go very slowly, and to try a maximum 15mls of milk. This she set out clearly in writing, including on a separate page within the hospital notes, and demonstrated to both M and F on 27 November 2013.

18.              From M’s own evidence, I can be sure that she understood this advice, and she was able to explain that the need to feed E in this way was to avoid her suffering these desaturations. E had respiratory distress at birth and had been suffering desaturations generally as a result of her prematurity. I note that it was something that occurred when E was being tube fed, and although E was able to manage breastfeeding without problem, the issue returned when bottles were introduced. M was aware that a serious desaturation meant that E would need treating with oxygen as a matter of urgency. M and D were encouraged to monitor E by watching her closely for signs of desaturation when feeding. M has described how E would go dusky and blue around the lips when desaturating, but on other occasions E would not show such visible signs. She accepted that as it was not always being possible to tell when E was desaturating it was important to stick to the advice she had been given about how to feed E.

19.              A discharge planning meeting was held on 27 November, which recommended that E be reviewed after a further 48 hours in hospital to allow staff to observe E being bottle fed and ensure she could be safely discharged. The notes suggest the next review meeting was set for 2 December 2013. There were no concerns during the review period, other than a query about M having introduced bottles and teats brought from home rather than using the recommended hospital teats. When asked about this, M told staff she had received this advice indirectly from MS, but although flagged as a query to be raised with MS, staff did not follow this up. In any event, it seems E managed well with these bottles and teats, which were slow flow teats. On 29 November, before the next review meeting, a decision was made that E could be discharged. E left hospital without any further advice being given to M and D about bottles or teats.

20.              ML was at the discharge planning meeting held at the hospital on 27 November 2013, and recalls the discussion about concerns over desaturations and how E would need to be fed, including pace feeding with a slow flow teat. No doubt he would have been aware that a further 48 hour review period was agreed and that a meeting had been fixed for 2 December 2013. However E was discharged without a further meeting taking place.

21.              When M and D arrived at RL with E, they were required to sign a placement agreement which included a requirement that they follow advice given, and a placement plan was drawn up which is available in the bundle at C64. That plan was later added to following E’s hospitalisation and the words in italics were not included in the original plan. Indeed the original plan made no reference to E’s feeding needs. Although ML’s initial evidence was that he had reported back to the staff at RL information from the meeting about E’s feeding needs, under closer examination it seems that the information he passed on was limited and probably only covered the need for ‘pace feeding’ and for E to be observed by staff when being fed. He accepted that he had not mentioned the need for E to use slow flow teats or that these feeding requirements were to address the potential for E to desaturate while bottle feeding, the relevance of which he indicated he may not have understood. With hindsight, and after the incident on 9 December 2013, ML recognised that RL had not appreciated how vulnerable E was.

22.              Although RL had received a copy of the hospital discharge summary, that had not been up-dated in any event, and it seems that it was simply placed on the file. The very clear and helpful note made by MS on a separate sheet within the hospital notes, containing her recommendations, does not appear to have been given to anyone.

23.              M has told the Court that she started to have difficulty with the teats blocking once at RL. It is not in dispute that these were the same slow flow teats that she had been using without problem in the 48 hours prior to E’s discharge. However, she was now using powdered formula whereas the hospital milk had been ready-mixed. It is her evidence that she had a problem on the first evening, which she noted on her feeding log which she exhibits to her statement. On 2 December, again in the evening, it seems she had considerable difficulty and GM came to assist her and they spent some time trying different teats and scrubbing them until they could get them working for E. As a result, M says GM suggested that she might want to change the teats. This is not accepted by GM, although she does recall the problem with the teats that evening.

24.              The following day, M went with SS to Asda. SS was aware that M was having a problem with teats and wanted to purchase new ones. Although SS understood E was being pace-fed, she did not know any more than that. Asda apparently had a large selection of teats, M was unsure what to buy and asked SS what might be suitable. She says SS suggested that she had used vari-flow teats with success for her own children. M says she felt under pressure to follow what she perceived to be SS giving her advice. SS recalls discussion about the types of teats and explaining to M how a vari-flow teat worked, but denies giving any advice. In the event, M bought vari-flow teats for E.

25.              D says that when M told him she had done this via text, he challenged her in the light of the advice they had been given, which resulted in an argument. When D was in the unit over the weekend, he reminded M that E should be using slow flow teats.

26.              M’s evidence is that she alternated use of the vari-flow and slow flow teats. She explained that this was because she was not entirely comfortable with having changed the teats, which she maintains was following what she thought was advice she had been given by GM and SS.

27.              On 5 December, the health visitor, DR, made a visit to RL and saw M and E. M says that they had a general discussion about feeding E and that she understood the health visitor to be suggesting that she should listen to E’s needs and “go with the flow” in relation to when and how much to give E, but that she should not let her go longer than 5 hours between feeds. M’s recollection is that during this conversation she told DR that she had changed the teats.

28.              It appears that DR had received very limited information about E before her visit, apart from her prematurity and that she would be discharged “when the medical staff are happy that she is maintaining her oxygen saturation whilst feeding”. She was not made aware of the specific advice M had been given about feeding E and she did not have the hospital discharge letter, which she accepts with hindsight she should have asked for. DR was unwell at the time of this visit and when her notes were made some days later on 10 December, she could not fully recall all that had been discussed, but she says there may well have been a conversation about feeding. She says she would not have given advice about teats.

29.              ML spoke to Miss Shaw on 6 December, who had contacted RL to find out how the placement was progressing. The record of this conversation suggests that ML told Miss Shaw that M had bought vari-flow teats and had varied the pace-feeding to six sucks at a time. When M had been asked about this, she had told staff that the health visitor had given her this advice. ML was asked to follow this up with the health visitor, but it does not appear that this took place immediately. It is not clear whether that is because RL failed to make enquiry, or due to the unavailability of DR due to her being unwell.

30.              Overnight on 8/9 December, M fed E at 22.00, when she took 1½oz, and then again at 02.43 when E took more than 3oz, possibly as much as 4oz which is what M appears to have told professionals later when E was taken to MPH. M then tried to feed E again at 03.30 but she was sick, twice. M called for assistance as she was worried E had ‘gone a funny colour’. When GM entered the room, she described how “E was lying on her back in the cot and it looked like E was not breathing or moving, she had blue lips and her skin was dusky grey in colour, her eyes were very bulged”. E was picked up and she started to breathe, although it was laboured, and her lips again turned blue. As E began to recover, GM’s initial thought was that E should be seen by the GP the next day but, having sought advice, E was taken to hospital at 04.05. It is not in dispute that M was immediately concerned that E should be taken to hospital.

31.              GM accompanied E and M to the hospital and while there recalls discussions with M about what may have happened to E. Her notes record that M told her that the health visitor had said it was OK for E to go up to 5 hours between feeds, and that if E is ‘in the flow’ and taking feeds nicely and breathing, then to carry on as normal, but if she gulps or fails to breathe, to go back to pace feeding. D describes a similar conversation he had with M and having asked if she ‘had that in writing’. As she didn’t, he says he continued to pace feed E.

32.              On arrival, M says she provided the hospital with E’s hospital discharge letter. She accepts that she did not herself mention to anyone, including Dr Newbury who was treating E, the specific advice she had been given about how to feed E or that she was now using vari-flow teats and was allowing E to suck for longer between breaks.

33.              Observations of E while at the hospital indicate that she was continuing to suffer desaturations when feeding. M was also observed to be feeding E using vari-flow teats, indeed she was using one when Dr Newbury observed E being fed and acutely desaturating with her colour changing from purple to blue, which M had not noticed. Dr Newbury also said M was not pace feeding, although she accepted that it was possible M had been distracted from doing that. M’s evidence that she was pace feeding E during that feed, and had she not been GM would have intervened, has to be considered in the context of the evidence about what she was reporting the health visitor had said and ML’s conversation with Miss Shaw.

34.              An entry in the notes at 18.30 on 9 December records as follows: “Encouraged M to use slow flow teat as appeared to be coming out too quick - managed much better with slower teat”. The medical notes then continue further on with the following entry “Nurses in Bath hospital had advised M to use slow flow teats - 3 sips then break - (M has not been doing this at home)”.

35.              Dr Newbury provided a short report to the court on her diagnosis of the reasons for E’s desaturations and admission. She concludes that the use of the vari-flow teat caused E to desaturate, as this stopped once the teat was switched back to slow flow. Furthermore, had the information later provided by the social worker about E’s feeding needs been provided at the time of E’s presentation, it would not have been necessary to admit E for observations. The lack of that important information resulted in unnecessary blood tests being carried out, and E was about to undergo lumbar puncture as part of a full septic screen, which procedure carries risk of infection and other potential complications.

36.              Dr Newbury was of the opinion that the brief desaturations that E experienced should not cause E any problems, but had E continued to be fed with the larger teat and desaturations become more profound or lasted longer, this could cause destabilisation in a fragile child like E, at worst resulting in a cardio-respiratory arrest.

37.              M was discharged with advice to use the slow flow teats, pace feed, and give E smaller volumes of milk more frequently, all of which is consistent with the advice she had previously been given when E was originally discharged from RUH.

38.              On a general note, ML confirmed that during the first week at RL, until E’s hospitalisation, there were no serious concerns around E’s health and that the assessment was generally going well and the parents engaging. However, that changed when M and E returned from hospital on 10 December. ML described M as having become defensive and hostile towards staff.

39.              Having set out the relevant evidence in relation to this issue, I turn to consider the factual findings sought. I have reminded myself that the burden of proof rests with the LA, and the standard of proof is on the balance of probabilities.

40.              The LA does not put a case that M deliberately sought to cause harm to E, but rather this came about through what might be termed “negligence” on the part of M through her failure to adhere to the advice she had been given at RUH about how to feed E.

41.              I have no difficulty in finding that M failed to follow the very clear advice she was given about how to feed E. M is a highly intelligent woman, her full scale IQ puts her on the 94^th centile for the general population, and she would have no difficulty understanding that advice or the reasons for it. Indeed, I have already recorded that she was able to tell the Court when giving evidence not only how she had been advised to feed E, but why it was necessary. She was also able to explain how a vari-flow teat worked, including that a baby sucking strongly as E was noted to do, would increase the flow.

42.              The evidence of how E was at MPH, suffering acute desaturations when being fed with the vari-flow teat which reduced when switched back to slow flow not only supports Dr Newbury’s diagnosis of the reason for E’s presentation on 9 December, but also suggests that this is more likely than not to have been occurring earlier. Dr Newbury noted that neither M nor the supervising staff reacted to E’s colour change. D in his statement suggests that E had been vomiting following feeds prior to the events of 9 December.

43.              M’s own evidence about conversations with the health visitor, D’s evidence of what M told him, ML’s conversation with Miss Shaw, GM’s note of the conversation they had at the hospital, Dr Newbury’s direct observation and the entry in the nursing notes all support a conclusion that M had earlier abandoned the recommended pace feeding regime of 3-4 sucks and then a break.

44.              M’s explanation is that she only changed from the advice originally given at RUH about how to feed E because she had been given different advice by professionals since arriving at RL, and felt she had to follow that advice even though on her own account she was not entirely comfortable with that. She has told the Court that she relied upon the professionals, including those at MPH having provided them with a copy E’s discharge summary, knowing about E’s needs. As a result she did not raise or query with any of the workers or the health visitor, whether it was appropriate to change the teat to a faster flow or to change to ‘going with the flow’ in terms of pace feeding. Further, this is given as an explanation as to why she said nothing to staff at MPH about the changes she had made, including to Dr Newbury even at the time E was desaturating in her presence.

45.              I reject the suggestion that M should be exculpated in relation to her care of E. I find that any reasonable parent, and particularly a highly intelligent one, would not have acted as M did, even in the circumstances of being in a residential assessment where she wanted to be seen to present well and follow advice. I find that M switched to using a vari-flow teat from the slow flow teat recommended, which she ought to have known was inappropriate for E. I do not accept that she was, or indeed felt, pressured into buying this type of teat by SS. I find it is more likely than not that M was motivated to buy a larger teat because of the difficulty she had the previous evening with the teats blocking, but in doing so she failed to take into account that this would not be suitable for E, or at the very least take advice from a health professional.

46.              I do not accept her explanation that she was surrounded by professionals, including at both RL and MPH, who she assumed knew how E should be cared for and who were not raising with her any concerns about the change of teat, which I find not to be true in any event in the light of ML’s conversation with Miss Shaw; nor do I accept the rather contradictory explanation that she did not know where to go for such advice, particularly as she had the discharge letter from RUH that had given the initial advice, and later phoned them to tell them E had been admitted to MPH. I find it inconceivable that a woman of M's intelligence would not have raised with Dr Newbury the previous concerns about E desaturating and what had been assessed by MS as necessary to prevent that occurring. The only sensible explanation is that M did not want to mention this as she knew she had failed to follow the original advice and by staying quiet hoped that she could avoid this being identified.

47.              Furthermore, M’s evidence that she felt under pressure to follow advice, and alternating teats was a response to “please everyone” of itself demonstrates a failure to prioritise E’s needs in her decision-making.

48.              It has been put to the witnesses that M’s motivation in changing the teats was because of her concern that E should get sufficient milk, a proposition with which they have agreed. I accept that, but with the caveat that M’s concern was based on her own anxiety rather than there being any concerns about E not thriving.

49.              I am satisfied that the evidence establishes that M was not pace feeding E as instructed, or keeping a careful watch of E for desaturations occurring. The explanation that M was concerned that E should get enough milk does not explain why she stopped pace feeding and failed to remain sufficiently alert for E desaturating, which M herself accepted would have been even more important when using a faster flow teat.

50.              Finally, I am satisfied that the evidence supports a finding that E suffered significant harm on 9 December 2013, and was at risk of suffering significant harm while in RL and that harm was due to M failing to feed E appropriately for her needs. I further find that M had sufficient understanding and information to know that she was putting E’s health at risk and failed to act in a way that would protect E from risk. This finding is particularly significant given E’s age, prematurity and vulnerability.

51.              I turn next to consider what orders are appropriate in this case. At this stage, the child’s welfare is paramount, and consideration must be given to the matters set out in the welfare checklist contained in s.1(3) Children Act 1989. The LA asks the Court to approve a care plan for adoption; in these circumstances, the court must also consider the welfare checklist as it is set out in s.1(4) Adoption and Children Act 2006. The Court must also take into account the requirements under article 8 ECHR balancing any competing rights, and only sanctioning interference in such rights if necessary and proportionate to meet the child’s welfare.

52.              On behalf of the LA it is submitted that E’s needs are those of a premature baby who is progressing well, but whose development has not yet reached that of a child of similar chronological age born at term. E’s health needs will continue to need careful monitoring and it will be particularly important that E’s carer follows professional advice in relation to E and is able to work together with medical, educational and social work professionals to ensure that E is provided with any necessary services. It will also be important for E to be cared for by a parent who puts E’s needs before her own and provides E with a sense of security such that E feels physically and emotionally safe and can securely attach to her primary carer. E will need to be protected from conflicts between the adults around her and the relationships between those caring for her need to be healthy and sustainable, with partners who can support E and assist in ensuring her needs are met.

53.              I am reminded that M has had five children removed from her care in the past, and am asked to consider the consistent themes arising from earlier assessments of M made in previous proceedings. The LA identifies as the key issue for the Court whether M has effected any change in the intervening period and if so whether it is sufficient to justify further assessment of her, taking into account E’s timescales.

54.              Miss Shaw has set out in her statement a summary of the similar conclusions reached by a number of psychologists who have seen M between 2006 and 2010. M is described as an articulate young woman not always consistent in her relating of facts. She does not seem to suffer with any diagnosable mental illness or personality disorder, but may have attachment issues, presenting with ambivalent attachment style. It is likely that M has marked problems of self-esteem, and positive self esteem is related very much to the relationships/partners she has. M is reported to employ a defence mechanism, blaming her partners for impacting her behaviour or emotions. M has been described as having capacity to act as if she has maternal instinct under observation, but she is unreliable and inconsistent particularly when lacking supervision. Her ability and willingness to prioritise her children's needs over her own is in question and it is unlikely that she has the ability to protect and parent children by herself. Her attitude to support and intervention can be hostile, with M attributing responsibility for this to the relevant professionals and minimising her own responsibility.

55.              Previous recommendations have been that M undergo psychotherapy over a period of at least a year, if not two, to assist her in dealing with issues of low self-esteem, impact of domestic abuse and depression in the past, improving her attachment style and parenting skills. It was predicted as long ago as 2006 that a failure to undergo this therapy would impact on her relationships with future partners and children.

56.              M accepts that in spite of the recommendation that she undergo therapy, she has not done so. She gave Dr Drayton to understand that she has been unable to access appropriate therapy, but attended some counselling sessions which she found difficult. The LA does not accept that M has not been offered therapy. Miss Shaw reports that in previous proceedings when such therapy was offered, M did not engage. As part of the assessment at RL, arrangements were to be made for M to be provided access to CBT therapy, but the placement ended before that could start. No further arrangements have been made for M to obtain therapy, and it is not clear whether she will be able to access therapy in the area where she is now living or when it could start.

57.              It has also been recommended that mother undertake work in relation to issues of domestic violence. M has told the court she will be pursuing this on Monday.

58.              Dr Drayton’s report was commissioned pre-proceedings to provide an up to date psychological assessment of M, the last assessment having been in 2010. This report is at E6 in the bundle. From the documents listed, it is not entirely clear whether Dr Drayton had been provided with full copies of the previous psychological assessments in respect of M, although he makes reference to them.

59.              Dr Drayton concluded that although M poses a risk of neglecting E’s physical psychological and emotional needs and has a history of chronic neglect of her previous children, in his view the risk to E was low enough to be managed. He pointed to the fact that her past chronic neglect of children occurred in the context of domestically violent and emotionally abusive relationships and her generally unsettled life. At the time of reporting, he understood these factors were absent from her life as M reported being happily married to a supportive husband. He identified inability to access therapy as one of the factors that contributed to her children being removed in the past, which remained the current issue. Dr Drayton suggested that if M was supported by the LA in obtaining the psychological treatment that she needs to address her emotional vulnerability, this would significantly lower the risk factors. Dr Drayton identified the presence of E’s father (as it was thought D was) as a significant factor mitigating against risk of chronic neglect. However, he recommended D also be psychologically assessed to ensure he has the necessary resilience to care for and protect E.

60.              He concluded that, “on balance, M has the ability to change to such an extent she can meet E’s needs within a reasonable timescale”. He formed this opinion because “M is an intelligent woman who has the intellectual capacity to benefit from therapy, seems to be in a secure relationship and supportive environment conducive to therapeutic change, seems to have the insight needed to change and accepts that her problems are all of her own making and it is she that needs to change, not everyone else”. Finally Dr Drayton was satisfied “M has a good reason to change and has the necessary motivation to engage in therapy”.

61.              Dr Drayton carried out this assessment in October 2013 and provided this report at the beginning of November. M now admits that she was not truthful with Dr Drayton on a number of issues, including about how and when she met D. She now says that this relationship, which was entered into extremely quickly, was far from stable and has told the Court how she had been trying to end it in September, before she even saw Dr Drayton.

62.              Dr Drayton was aware that M had a history of being untruthful, stating in his report that “M has been, without doubt, deceitful in the past with professionals” he described it as probably an expression of her low self-esteem and lack of assertiveness. He recognised that she may well be doing that in interview, but predicted that “M will be able to work openly and honestly with the local authority in future based on the fact that she is, hopefully, in a stable relationship. However only time will tell”.

63.              Miss Shaw in her statement points to M’s failure to tell Dr Drayton about a previous marriage entered into in very similar circumstances, which on the face of it had the potential to be stable but lasted an equally short time. She also raises the fact that M led Dr Drayton to believe that she had not been offered therapeutic inputs by the local authority, whereas the evidence suggests it was offered but that M failed to engage.

64.              As a result of M’s failure to provide an honest background and realistic account of her circumstances to Dr Drayton, information which was critical to his conclusions and recommendations, I find his assessment cannot be regarded as viable.

65.              Events in the run-up to and subsequent to that assessment add further to the picture in assisting the court to determine whether anything has changed, and if there is any prospect for change within E’s timescales.

66.              M accepts that her dishonesty is not confined to what she told Dr Drayton. She was not initially honest with D about the number of children she had and the history. The issue of E’s paternity was raised very late at that time when the relationship with D had broken down. M’s explanation for her dishonesty is a simple and understandable one which I find likely to be the truth. She thought it was the only way that she had any prospect of keeping E in her care.

67.              On behalf of M, I am asked to take into account the positives in her care of E during the time she was with her. I note that the reports of observations while E was in hospital and at RL indicate that E was developing well and her mother exhibited warmth in the relationship, demonstrating the beginnings of what had the potential to develop into a strong bond. I also accept that the first week at RL had gone well and there were no concerns raised, including in relation to M’s engagement with the staff. However that was not sustained in the days following E’s return to RL and was given as a reason why the placement came to an end.

68.              I take into account that at this time M would have been fearful of E being removed from her care, which did then happen and was followed by M's poor, if not non-existent engagement with the local authority during 2014. This was particularly pertinent in terms of E’s contact. She also failed to keep her solicitors fully instructed so that they could file statements on her behalf in line with the Court's directions. However, at no time did she indicate that she no longer sought the return of E to her care and has maintained her opposition to the LA’s applications.

69.              It is M’s case that had E not been hospitalised, although her relationship with D would probably not have survived, the positive progress she was making suggests the assessment would have continued.

70.              M accepted in evidence that prior to April 2013 she had been unable to achieve a stable lifestyle. Since then the court has her account of how she entered into a relationship with D, and the difficulties during their married life before it ended. Against that background, she asks the Court to consider that the changes she has now made since splitting up with D are sufficient to justify further assessment. Her situation is that she is now living alone, has good support from friends on a farm where she rents a caravan, and has no intention of entering into a further relationship. Although she only moved to the area in January 2014 and has therefore known these people just a matter of a few weeks, she is confident that they are trustworthy and will support her. She says she has told them all about her background and they have provided her with information about themselves. I have noted that M herself identified in her discussion with Dr Drayton that she is too trusting of people, yet she seems to be placing a great deal of faith in these fledgling friendships. It was put to M that one of these people was previously in a relationship with a woman she put forward as potential future carer for E, but now believes is not suitable following failed suicide attempts.

71.              Of particular concern to the LA and the Guardian is M’s failure to continue contact with E after the last contact on 8 January 2014. The LA reminds the court that M took a similar position in relation to O during proceedings in 2010. She ceased attending contact with him several months before final orders were made.

72.              M's explanation that she considered her actions to be in E’s best interest so that she would not continue to bond with her given the LA’s proposed care plan is not persuasive given that she has continued to put herself forward as a future carer for E at all times within these proceedings. It is more likely that M's evidence that she was struggling to manage her own upset and emotions, together with her having moved some distance away, is the reason contact ceased. I note that M herself, with the benefit of hindsight, accepts that this may not have been the right decision.

73.              A further matter of concern to the LA and Guardian is M’s decision to seek to have O returned to her care in further proceedings taking place in another court, her application based on Dr Drayton's report including the unreliable evidence that she was in a stable relationship. The LA points out that had she succeeded, O would have been brought into what was in fact a dysfunctional home.

74.              The LA asks the Court to find that these are examples of M failing to put the needs of her children before her own.

75.              Over these last few days, M has exhibited considerable commitment in attending these proceedings, and bravely spent several hours in the witness box being cross-examined. This cannot have been easy, and at times M has been understandably close to tears, but has still managed to maintain her composure and dignity. The evidence that she has given, I am satisfied is as honest an account as M is able to give. Unfortunately, M continues to be an unreliable witness, portraying facts and events in a manner that best suits her objective at any given time. This has been a feature in her dealings with professionals historically and continues through these proceedings and in her giving of evidence at this final hearing. Indeed there are sufficient incidents documented where M has chosen to act in ways that suit herself without considering the impact on others to suggest that this is how she is likely to behave in future. She also continues to lack the insight to see matters objectively. For example, she gives explanations for her actions as having been taken in E’s best interests when even on her own evidence they are plainly not. Her evidence about why she lied about the relationship with D clearly demonstrates a desire to put her own need to keep E above E’s need to be kept safe and protected from harm. Similarly in relation to her application to care for O.

76.              M’s intellectual abilities equip her well to talk a good case for herself, regardless of its accuracy, so it is to her actions that the Court must look, an approach with which M agreed. Unfortunately for M, when the evidence is looked at in that light, it does not support the case she has presented orally.

77.              I have little difficulty in concluding that the LA has made out its case that M should not be further assessed. The evidence is overwhelming. The same issues that prevented M from caring for her children as far back as 2006 remain unchanged. The findings I have made in relation to E’s hospitalisation and M's part in that demonstrates that M has not got the skills to meet E’s immediate needs and echo previous concerns about M's ability to prioritise a child's needs. Miss Shaw noted that in previous proceedings there was evidence of M mis-reading a child’s cues, for example stating that O is tired and needed to sleep when he presents as fully awake. I find M’s mis-management of E’s feeding is evidence that such concerns remain unchanged. Indeed there is much evidence as I have set out above to support the findings sought by the LA that M continues to be unable to prioritise a child’s needs above her own.

78.              The manner of M’s falling pregnant with E, and then marrying D within a very short time of meeting him, and the relationship proving unstable and finally breaking down, is evidence that the way in which M engages in relationships has not changed.

79.              M’s ability to engage openly and honestly with professionals remains to be demonstrated. She has not done so throughout these proceedings.

80.              I accept the unanimous opinion of the psychologists who have assessed M, that to effect change M will need to undergo a significant period of therapy in the form of CBT. However, taking into account M’s failure to engage in such therapy when it has been offered, the ambit of what she will need to address and the difficulties she experienced with the issues raised during counselling, and her inability to work openly and honestly with professionals, I am led to conclude that it is doubtful that M will be able to engage effectively in this process. I find the prognosis for change is very poor, if not negligible. Furthermore, the significant period of therapy required is well outside E’s timescales.

81.              The LA therefore proposes that an alternative family placement be found through adoption, there being no other realistic alternative for a child of E’s age whose future welfare requires that she grow up experiencing the stability and security of family life.

82.              The Guardian initially supported the residential assessments at RL, relying upon Dr Drayton's report and the fact that M indicated she was breastfeeding E and wanted to continue to do that. However the Guardian no longer supports further assessment in the light of subsequent events, including the fact that M all but disengaged from the proceedings and only attended 2 out of 36 possible contacts since the residential placement ended. She identifies the same issues as the LA; lack of support, inability to work honestly with professionals and the failure to engage in therapy.

83.              The Guardian concurs with the LA's view that E’s needs are best met through adoption. She hopes that M will, as she has said she will, attend a goodbye visits with E.

84.              In reaching my decision, I remind myself of the following principles:

·         That there is a presumption that a child's best interests are served by being with their parents wherever possible

·         Decisions that involve long term separation of a child from the family, or adoption require a high degree of justification, must be "necessary", and where the intervention is extreme as in this case, the Court must be satisfied that "nothing else will do".

·         The task of a trial judge making the ultimate determination of whether to make a care order is more than to exercise a discretion, but carries with it an obligation to determine the application in a way that is compatible with Article 8 - and to apply the yardstick of proportionality 

·         A linear approach to deciding the outcome is not appropriate - this means that it is not appropriate to evaluate and eliminate an individual option, to be left with the alternative (for example, M cannot care for the child, so a care order is the alternative).  A global, holistic evaluation of each of the realistic options available must be conducted

·         A global evaluation requires a balancing exercise in which each option is evaluated to a degree of detail necessary to analyse and weigh the positives and negatives of each option side by side. An express choice should then be made by applying the child's welfare as a paramount consideration

·         The court should also contemplate why any conclusion that renders permanent separation is "necessary", on the basis that it is the "last resort" and "nothing else will do"

·         Finally, the court should be satisfied that there is no practical way that the LA (or others) can provide the requisite assistance and support required for the child to be able to remain within the family

85.              Applying those principles, I have considered the relatives advantages and disadvantages of E being cared for by her mother, as opposed to adoption. E would undoubtedly wish to be able to be brought up by her mother and thus grow up within her birth family with all the known advantages that would afford her throughout her life. If placed with M, I have no doubt that she would experience considerable emotional warmth, albeit that may not always be consistent. However, the Court has to weigh against that the very real risk that E would be exposed to and likely experience significant harm in her mother’s care, including at times emotional neglect, that would impact her development and her capacity to function successfully as an adult in the future. In E’s case, this must carry more weight due to the findings I have made about the harm E has suffered and would be at risk of suffering, and the increased vulnerability she has as a child born so prematurely. Poor prognosis for change in future is a factor that must be given considerable weight. This is not a case where provision of support services is likely to make any appreciable difference given M’s failure to work with professionals, follow advice, or be able to engage in therapy.

86.              If adopted, it is hoped that E would become a full member of a loving and supportive family that would meet all of her needs throughout her childhood and which would remain her family throughout her life. If E cannot safely be provided with such a family life by remaining in her mother’s care, there are no other available options that would provide E with that stable and secure family life other than adoption. However I have to factor in that adoption carries with it the obvious disadvantage that E will not grow up within her birth family, which she will need to come to terms with at some point in her life. I place great weight on the disadvantage for E of losing that opportunity together with the impact on M of not being able to care for her daughter.

87.              Having considered all of the evidence and carried out the required balancing exercise I conclude that this is a case where the evidence clearly establishes that a plan for adoption is the only way to secure E’s welfare and keep her safe now and throughout her life. The approval of the care plan that E be adopted and the granting of a care order as sought by the local authority is necessary and proportionate in all circumstances, and I am satisfied that in this case nothing else will do.

88.              Having granted the care order, I have gone on to consider the LA's application for placement order. Much of the evidence and my analysis of it as set out above in relation to the care application applies to this application and I need not repeat it. I have determined that adoption is in E’s best interest and nothing else will do, and granted the LA a care order with a view to it seeking to find an appropriate family to adopt E without delay.

89.              E’s mother opposes E being placed for adoption and does not, therefore, provide her consent. In such circumstances I have to consider whether E’s welfare requires that I dispense with M’s consent to placement for adoption. Having made the findings I have set out in the care proceedings, including that there is a poor, if not negligible, prospect of M being able to effect change within E’s timescales, I am satisfied that E’s welfare does require that I dispense with parental consent for adoption to avoid any further delay for E.

90.              I therefore makes the placement order permitting the local authority to place E with prospective adopters.

91.              I conclude these proceedings by making some short observations that I hope will be of assistance, including in any future cases in relation to any children of M.

92.              As an adopted child, knowledge of her identity will be relevant for E. M herself is adopted, and no doubt has considerable insight into how important that information will be for E. M has told the court that she understands that she has to demonstrate that she can work with professionals openly and honestly, as well as recognise a child’s needs and prioritise them before her own, rather than just say that she will. Attending a good-bye contact for E, and engaging with the LA in life-story work provides her with an ideal opportunity to do exactly that. This is perhaps even more important as M has been unable to provide any information about E’s birth father. I do hope M will be able to engage in this, even though I recognise that she will find it difficult.

93.              I am much encouraged that D, who gave very careful consideration with the support of his own family to whether he might in fact continue to care for E even after finding out that he was not her birth father, has already provided 18 cards for E for each of her birthdays, and will no doubt assist the LA in providing further information about the early months of E’s life spent with him and M.

94.              The findings that I have made, considered in the light of the history in relation to M's other children, raise the likely continuing risk to any child placed in M’s care, particularly a vulnerable newborn. The evidence establishes that any change is unlikely to be effected without mother properly and fully engaging in long-term therapy in the form of CBT. It is very much to be hoped that she will and that she will be able to access the appropriate therapy through the NHS. To enable her to do that she should be able to disclose copies of psychological assessments of her, and a copy of this judgment. I wish her every success with that.

95.              The evidence in this case demonstrates that M is highly intelligent, understands the issues but is highly motivated to retain care of her children if possible, and to that end may be manipulative and persuasive and fail to tell the truth. If M finds herself in a position in the future where she seeks to care for a child, professionals will want to proceed with caution before accepting any representations from M that she has made the necessary changes, or is in a situation in which she is likely to be able to make such changes, and they would be wise to satisfy themselves through independent exploration of any facts and matters relied on.

96.              During the period E was in RL, I have found that she suffered and was put at risk of suffering significant harm. Although the responsibility rests with M, I am concerned at the inadequate sharing of information about E and M's past history between the relevant agencies. In particular the way in which E was discharged did not properly allow for RL to understand E’s needs at the point of discharge. The attendance of a social worker at the discharge planning meeting would not be sufficient in relation to medical matters. The discharge letter was not fully up-to-date and did not contain the very particular advice given by MS so carefully set out in the hospital notes, including on a separate page which was available to be copied and provided to everyone who would need to have that information. That should have included, at the very least, M and D and RL. Minimal information was provided to the health visitor who accepts she should have made further enquiry.

97.              Within RL itself a satisfactory method for ensuring that all staff were aware of the very particular way in which E had to be fed, and why, was lacking. I am satisfied that SS would not have had the conversation she did with M if she had had this information, indeed I anticipate she would have ensured that M bought the right equipment for E. I anticipate that RL will already have put in place better processes, but if not, it is vital that they do so.