England and Wales Family Court Decisions (other Judges)

IMPORTANT NOTICE

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

IN THE FAMILY COURT

SITTING AT BOURNEMOUTH

IN THE MATTER OF C AND H (CHILDREN)

27^th May 2014

Before His Honour Judge Bond.

BETWEEN:

THE BOURNEMOUTH BOROUGH COUNCIL   Applicant

And

K                                 First Respondent

And

M                                Second Respondent

And

N                                Third Respondent

And

C and H

(By their Children’s Guardian)        Fourth Respondents

Miss Gayford for Bournemouth Borough Council

Mr Masterson for K

Mr Reynolds for N

Miss Gillette for C and H.

JUDGMENT
This case concerns four children.  This hearing however only concerns two of them, C who was born on 31^st July 2006 and H who was born on 5^th September 2013.

1. The local authority seeks care and placement orders in respect of each child.  It is proposed that they be adopted in separate adoptive homes.  The guardian at first recommended that an effort should be made to place the children together.  By the end of the hearing he accepted the local authority’s view.   
2. The concerns of the local authority have centred on what is alleged to be a worrying history of domestic violence between the parents.  The mother was injured and the father was convicted on three occasions of assault.  It is said that the children were often witnesses of such episodes.
3. The children have not been in the same foster placements since removal from the family.  It is said that C has complex needs which arise from his experience when cared for in his family.  It is said that he will require better than good enough parenting.  It is said that H will be relatively easy to place and given her age she does not have the same difficulties as C.
4. Both parents have parental responsibility. The father has not played any part in the proceedings since 20^th December 2013. He has not filed any evidence or reports as directed.  He has not attended this hearing.  K (the mother) and the N (maternal grandmother) accept that H should be placed for adoption.  I made the required orders un respect of H at the conclusion of the hearing and reserved my decision in respect of C.
5. The mother also agrees that she is not able to care for C.  The maternal grandmother made a late application to be joined as a party and to seek a Child Arrangement Order under which C would live with her. During the hearing the grandmother altered her stance and added a request for a Special Guardianship Order (SGO).  This is supported by the mother.  It is opposed by the local authority and the guardian.
6. If the court concludes that it cannot make an SGO the grandmother asks that the proceedings in respect of C be adjourned so that an SGO report can be prepared.  This is opposed by the local authority and the guardian.  The 26 week period expired on 29^th May 2014.
7.  There is no dispute as to the contents of the Threshold Statement which appears in the Preliminary documents the trial bundle.
8. Law:   In respect of the application for a Care Order for C the court’s paramount concern is C’s welfare which is more precisely determined by reference to the welfare checklist in section 1(3) of the Children Act 1989.    Further section 32 CA has been amended by section 14 Children and Families Act 2014 which only permits extension of the timetable if the court thinks it necessary to enable the proceedings to be resolved justly and see Re S (A Child) [2014] EWCC B44 (Fam) at paragraph 33.  The court must also carefully consider the Care Plan.
9. When considering the application for a Placement Order the court has as its paramount concern the welfare of C throughout his minority.  The court must also consider the matters set out in the Checklist in section 1(4) of the Adoption and Children Act 2002 (ACA).
10. The court cannot make a placement order unless the parents with parental responsibility for C agree or the court is able to dispense with consent pursuant to section 52 of ACA.
11. In considering these applications the court has to operate upon the principles set out in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; 1 WLR 1911 and Re B-S [2013] EWCA Civ 1146.    I have to consider Article 8 ECHR and whether in C’s case nothing else but adoption will do. 
12. Evidence:  I have read the trial bundle and heard oral evidence from a number of witnesses. The mother was present throughout but did not give oral evidence. The first was the social worker Tammy Curson. 
13.   She had prepared a number of documents:  her statements are at B1029 and B1181.  The care plans are at B1209 and 1229.  She also prepared the viability assessment of the grandmother at B1135, the split sibling assessment at B1163 and the Annex B reports.   I thought she was an impressive and fair witness.
14. She was of the view that if C, who is described as being in the hard to place category, is placed with other children he needs to be the youngest child.  The preliminary inquiries have disclosed 15 applicants who might prove a suitable match for C.   This is the first stage in what will be process of some months before an adoption application can be issued. 
15. The main concerns about C and his situation are the volatile nature of the relationship between the mother and grandmother; C’s closed emotional state – he does not talk about his feelings and is too ready to fade into the background and make no demands.  He is an endearing child who is too compliant.  He has said that he would like to live with either the mother or grandmother.  It is feared that the grandmother will have difficulty in putting C before the demands of the mother.  If there were protective orders the local authority questions whether the grandmother would enforce them against the mother and be able to organise and deal with the problems of contact. 
16. It is accepted that the mother loves all her children and that the grandmother has a particular fondness for C who loves her. Tammy Curson pointed out that this was not the same as an Attachment between C and his grandmother.   It is agreed that the grandmother has a good understanding of C’s needs but it is said that because of her own background and circumstances she will not be able to meet C’s complex needs. Further it is pointed out that the grandmother was on the scene during the time when the mother’s and the children’s circumstances were so damaging. It is said that C needs what has been described as therapeutic parenting.
17.  There are also worries about the grandmother’s own mental health and general well-being.  The mother’s three siblings live with her.  The eldest is 15 weeks pregnant and the youngest seems to be disruptive at school.
18.  Nikki Reynolds, who was a fair and careful witness, prepared the parenting assessments at B1146 and B1270.  The parenting assessment was carried out over two sessions one of which lasted 8 hours and the other two. The grandmother had also been seen at the mother’s home.
19. The first session was on the day after the grandmother had undergone surgery following serious illness after an ectopic pregnancy.  The grandmother had agreed to go ahead with the session as everyone was acting under the constraints of the court’s timetable.  I accept that it is unlikely that the grandmother would have been able to appear at her best.
20. Nikki Reynolds agreed that the grandmother can carry out all the basic parenting requirements but was of the view that the grandmother could not make up the deficits in her knowledge of what was needed to care for C within his time frame. 
21. As far as the mother and grandmother were concerned, there is considerable concern about an incident in February 2014. The mother and grandmother went to a club and were involved in an altercation with a third party after they had both been drinking.  It is alleged that the mother had overcome the grandmother’s reluctance to go out at all and that this is illustrative of the way in which the grandmother gives in to the mother. 
22. The grandmother said that in fact the mother had wanted to go out on the previous weekend which was on her birthday.  The grandmother successfully resisted that but agreed to go out on the following weekend.  The incident began when the grandmother was accidentally jostled on the dance floor and the mother became upset.  The club’s security staff became involved. The police were called.  The grandmother was unable to calm the mother who had had too much to drink. I think the grandmother agreed that it was an unfortunate episode.  I agree.
23. Another worry is the risk that the father may present if C lives with the grandmother.     
24.  At the time that she gave evidence Clair Burley was a trainee clinical psychologist.  Her reports are at C2002 and C2005.   She has explained what in her opinion C needs by way of parenting.  Essentially it is said that C has not had his emotional needs attended to.  He does not express his needs because he does not expect them to be met.  He requires optimal parenting in a calm and settled placement.  In the absence of these two factors Claire Burley thought that the outcome for C’s development was grim.  She fairly conceded that she was unable to comment as to whether the grandmother could provide what C needed.  While I accept Claire Burley’s assessment of C’s needs I also have to consider whether the grandmother can or is likely to be able to within a reasonable period of time which is consistent with C’s timetable.
25. The grandmother’s statement is at B1239.  She has been with her partner for 11 years but they do not live together.   She clearly has had a very difficult life. She suffered sexual abuse by her father as a child.  I thought that she gave evidence well.  She was clear and forthright but accepted some of the points which were made against her capacity to care for C although I felt that she minimised the extent of the difficulties she is experiencing with her youngest child.   
26. She plainly loves C.  She described him as wonderful and that she has been very close to him since he was born. He calls her his Special Nan.  C was placed with her by the local authority for 3 months in 2008. She agreed that she has a close but volatile relationship with the mother.  She agreed that the mother had made allegations against the grandmother to the effect that she had not been a good mother to the mother.  The mother had recently retracted some of these.  The grandmother denied that she had encouraged the mother to drink alcohol at the age of 14.  
27.  There are clearly areas of legitimate concern about her plan to care for C. These include the mother’s reaction, the risk posed by the father, her parenting of her children and her health as appears in the letter from her GP at C2010.  
28. The grandmother felt that her parenting assessment was not as full as it might have been.  It was done upon the basis she was considering applying to care for all four children not just C.  The grandmother said that her late arrival into the case had occurred because she had not earlier understood that she could qualify for legal representation.  She had understood the social worker to say that if the grandmother passed her assessments she might then consider instructing lawyers.  She had earlier consulted another firm of solicitors.  The continuation of her public funding certificate had been in doubt for the period after the first day of the hearing.  This was resolved and the certificate was continued.  
29.  The guardian’s reports are at E 4000 and E4007.  At E4014 is a position statement which was put in after the grandmother became a party.  The guardian has not been able to interview the grandmother.  He did not regard that as crucial.  He has seen the notes of her contact. 
30. The guardian was firmly of the view that there should now be a placement order in respect of C.  He was very doubtful whether a SGO would work.  While it would re-enforce the grandmother’s legal status, the guardian did not think it would alter the volatile family dynamics.  He was opposed to an adjournment.  He thought that there was sufficient material and analysis for the court to be able properly to conclude the matter now.  C would be disappointed if a decision is delayed.   C cannot wait.  He requires speedy placement with optimal parents. 
31. Those are all powerful points which are made by an experienced guardian.
32. Submissions:    On behalf of the local authority Miss Gayford pointed out that Threshold is accepted.  Further the mother agrees that she is not able to care for either of the children.  The father has not engaged in the proceedings but represents a high level of risk.
33. It is the local authority’s case that although C is loved by his family, none of them including the grandmother was able to protect C from the harmful situation at home.  It is said that the grandmother had been actively involved in caring for C. He had stayed regularly with her at a time when the harm to C was happening. 
34. It is submitted that the grandmother’s household is chaotic.  There are many calls on her time.  She has her own mental health problems.  One of her children is showing difficult behaviour.  It is said that the mother’s own demands are likely to be difficult for the grandmother to manage.  The mother did not give oral evidence but has made allegations against the grandmother in respect of how she parented the mother.  Those allegations have bee retracted but as Miss Gayford pointed out either the mother was telling the truth originally or she made false allegations.   Both it is said show a worrying situation.  I agree.      
35.  As to the question of an adjournment for further assessment, it is submitted that the existing assessments and reports are fair, balanced and are compliant with Re B-S (Above).  C it is submitted needs a decision now.
36. On behalf of the mother Mr. Masterson pointed out that had the grandmother been earlier involved she would have had a full psychological assessment and a SGO Report.  I think that is likely to have been so.  He submitted that it is dangerous now to take the drastic step of excluding the grandmother.
37. On behalf of the grandmother Mr. Reynolds adopted the submissions made on behalf of the mother.  He submitted that the delay in the Grandmother’s arrival into the case was not because she had been lack of interest.  She had been trying to obtain public funding and representation.  I accept that.
38. It is accepted that there are a number of questions about the grandmother which exclude her as an immediate carer for C but she remains a realistic option for him.  He is nearly 8 and on the evidence it will take some time to find possible adopters for him.  It may not be possible.  He loves his grandmother has spent much time with her.  If the grandmother can care for C this, it is submitted, would be the best solution for him.
39. In these circumstances it is submitted that the court has insufficient evidence to make a final decision especially as the alternative is adoption. 
40. On behalf of the guardian Miss Gillette said that the Guardian is now in complete agreement with the local authority.  It is submitted that there is sufficient material for the Guardian to come to a clear recommendation.  It is further submitted that there is no realistic prospect of the C being properly cared for by the grandmother.  Her household is a very busy one.  It is difficult to see how C would fit into that arrangement.   
41. Conclusion:      I agree that both the local authority and the guardian have conducted careful and proper analyses of the position.  I agree that the mother is not in a position to care for C and that it would not be safe now to place C in the grandmother’s care.    The question therefore that I have to answer is: is it consistent with C’s welfare to allow time for assessment of the grandmother?
42. On the one hand such a course will import delay in coming to a decision as to what course C’s life is to take.  I bear in mind that such a delay is generally inimical to a child’s welfare. Further the statutory 26 week time limit expires on 29^th May.  That period can only be extended if the court can properly conclude that an extension is necessary.
43. I have also considered the welfare check lists and in particular section 1(3)(f) CA 1989 and section 1(4)(f) of the ACA 2002.   
44. On the other hand the only alternative for C is adoption. This imports consideration of Article 8 ECHR.  I remind myself of what was said in Re B (Above); Re B-S (Above) and in Re S (A Child) (Above).  Has the process reached the stage where it can fairly be said that nothing short of adoption will do? C will not be easy to place for adoption.  The evidence suggests that the process will take some months. He is nearly 8 and has a close relationship with his grandmother.   If there is to be an SGO report in respect of grandmother it should not take as long is generally said to be required. A significant amount of information is already available.
45. I have come to the conclusion that this is matter which falls within that class of cases mentioned in paragraph 33 (ii) (c) of the judgment in Re S (Minors) (Above).     
46. In coming to this view I am going against the course recommended by the guardian on behalf of the children.  In brief my reasons for doing so are:

(i)                 The principals contained in the cases to which I have referred and to which I do not think that the Local Authority or the Guardian gave sufficient weight;

(ii)               C’s knowledge of and relationship with his grandmother;

(iii)             C’s age;

(iv)             I was impressed by the manner in which the grandmother gave her evidence;

(v)               The grandmother is a realistic possible alternative for C and there is a gap in the evidence as to her capacity to care for C. 

47. I approve the threshold criteria but will not make a Care or Placement Order in respect of C.   If it has not already been done I shall renew the interim care order I respect of C until conclusion of the proceedings or further order.
48. I shall consider what other directions to make when this judgment is handed down. 

            27^th May 2014                                                                                     HHJ Bond.