England and Wales Family Court Decisions (other Judges)

Case No: LS15C00199 & LS15Z00352

IN THE FAMILY COURT SITTING IN LEEDS

IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF J (A CHILD)

Date: 16 July 2015

Before :

HHJ Lynch

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Between :

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Victoria Mortimer for the Applicant

Parveen Ahmed for the 1 ^st Respondent

Eilish Porter for the 2 ^nd Respondent

Hearing date: 16.7.15

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JUDGMENT

Introduction

1. In these proceedings I am concerned for J, a girl born on 26 March 2015 and now three and a half months old. J’s mother is K (‘the mother’) and she comes from another country; the identity of her father is unknown. Her mother has suggested the man she was apparently living with when J was born was her father but dates do not tally and he has not cooperated with DNA testing.
2. The local authority began care proceedings in March as a result of concerns it had about the ability of the mother's care for her daughter and I shall come back to those concerns later. An interim care order was first made on an urgent basis on 30 March. J lives with foster carers and has done throughout these proceedings. Very sadly her mother has not seen her for two and half months now but before that had some contact while she was in hospital.
3. During these proceedings great efforts have been made to assess the mother's ability to care for J but she has not engaged with either a psychological assessment of her as well as an assessment by the local authority.
4. At an early stage the question was raised whether the courts of this country were best placed to deal with J's case given her mother's country of origin was elsewhere. The mother was clear that she was now habitually resident here, having come to this country of her own volition, and she did not ask for the court in her country of origin to deal with the case. This court at an early stage was satisfied that J was habitually resident here and that this court could deal with J's case. The relevant consulate for the mother's country has been made aware of the proceedings and indicated it does not take issue with the application being dealt with here. Information has also been provided to this court by the mother’s country of origin regarding her history there.
5. This hearing was scheduled to be a final review before a final hearing next month but given the fact that the mother has not taken the opportunity to be assessed, nor has she seen her daughter for many months, as well as the fact that she has not come to court, it made sense to deal with the case today as the final hearing. I have seen a position statement prepared by the mother’s solicitor showing the great efforts they have made to get instructions from her since the hearing in mid May, the last time she was involved in the court case. Phone calls have been made, letters sent in her own language as well as English. I am conscious that I must have in mind the general principle that any delay in determining the question is likely to prejudice the welfare of J. In preparing for this hearing I have read the full bundle of papers provided to me in this matter but no evidence has been heard today.

Background

6. The local authority received a referral on 18 February 2015 from midwifery services. The mother had presented late in her pregnancy stating that she had not realised she was having a child, despite J being her fifth child. Her three oldest children had been removed from her care and now live with their paternal families or the State and a fourth child died in infancy, all of this before she came to the this country in March 2014. Following the removal of her children, her life became chaotic and unsettled and she lived on the streets for a period of some eight to ten years. She has told the local authority that in 2013 or 2014 she was approached by a man who promised her a better standard of living, a home, food and money if she moved to England. It may be that she was trafficked or assisted for the purpose of marrying a non EU national. In this country the mother has continued to live an itinerant life without visible means of financial support.
7. After the mother went into hospital for the birth of her baby, she was diagnosed with a number of serious health problems that required immediate treatment. On medical advice, she was separated from her baby and placed in an isolation unit as it was believed she had a number of infectious diseases. There had also been concerns about the mother's mental health presentation and an assessment was carried out. The outcome of that assessment was that she was not detained under the Mental Health Act but was provided with treatment under the Mental Capacity Act on the basis of a best interests decision. It is thought she may have some learning difficulty but her presentation may also be linked to some of her health difficulties. Within these proceedings however she has been assessed by a psychiatrist as being capable of instructing her solicitor.
8. The local authority managed to get some cooperation from the mother before J was born but since she left hospital she has not engaged further in any assessment. The local authority has managed to get some information from the mother's home country which suggests she has a history of leaving her children to the care of others. The information the local authority has about the mother suggest she is herself a very vulnerable adult and would not be capable of caring safely for her daughter, even with intense support. Possibly for historical reasons, the mother seems to have a resistance to working with state services which makes it unlikely she would take up any support. The local authority has not been able to identify any family members who might be able to care for J. The mother has been unwilling to give any information which would assist in locating members of the maternal family.
9. The local authority argues that, given that J could not be placed with her mother or with extended family, she deserves the right to a permanent home by way of adoption rather than remaining in long-term foster care, a position endorsed by the guardian in these proceedings. J is doing well in foster care but all the professionals agree she needs a long-term permanent home and for most securely be provided by adoption.
10. The guardian has considered whether anything more can be done to engage J's mother. In her report she says : “From the beginning of these proceedings I believe that everyone involved has been acutely aware of the vulnerability of this mother and concerned for her welfare as well as that of her child. I consider that the Local Authority has tried to support her and followed protocols to ensure that she has been assessed and offered support from other agencies which unfortunately she has not engaged with. We are now in a position where we have lost all contact with (K) and it is difficult to see how this can be remedied.”
11. For me to make a final care order the local authority needs to satisfy the court that at the time it began proceedings J was at risk of suffering significant harm due to the care her mother was likely to give her. Having considered all the evidence I am satisfied that threshold has been reached for these reasons :
1. The mother had her older children removed from her care by her home country’s authorities as a consequence of her alcohol and drug misuse.
2. The mother has failed to address her own health needs and to engage with antenatal services, such that it placed her unborn child at risk of physical harm.
3. The mother has failed to achieve stability and security in her personal circumstances, is without a settled address, and has been assessed as a vulnerable adult by the local police and a community organisation. Given this, her ability to protect her child from physical and emotional harm and neglect is significantly compromised.
4. The mother has failed to prioritise the emotional needs of her child, by failing to engage with professionals and attend contact.
12. I am conscious that the evidence on which the local authority relies has not been tested in court due to the mother not having given her solicitor instructions. I am satisfied though that on balance of probabilities the local authority's case is made out.

Decision

13. I now turn to consider what orders if any are in the best interests of J. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are “very extreme”, and should only be made when “necessary” for the protection of the child’s interests, “when nothing else will do”. The court “must never lose sight of the fact that (the child’s) interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.
14. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said : “Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
15. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for this child/children, taking into account the assistance and support which the authorities or others would offer.
16. In reaching my decision I have taken into account that J’s welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and the children as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the children’s rights and be proportionate.
17. A placement order is also sought by the local authority in respect of J. The court cannot make a placement order unless the parent has consented or the court is satisfied that the parents’ consent should be dispensed with. A court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” consent to be dispensed with. In that context I am conscious that “requires” means what is demanded rather than what is merely optional.
18. The question I have to ask myself is whether J can be placed in the care of her mother or whether she should be adopted, given that I acknowledge long-term fostering is not an option for a child this young, and I have to balance the pros and cons of each of the options being presented to me . McFarlane LJ in Re G [2013] EWCA Civ 965 said “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.” In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002 .
19. J has all the needs any such young child has, to be kept secure and safe and have all her primary care needs met. From all the evidence I have it is clear that her mother is not in a position to do this. I am satisfied that it is likely she would suffer harm, both physical and emotional, were she in the care of such a vulnerable mother. My knowledge of what has happened to her older children in her home country substantiates this. Given the mother's attitude to state services, which I can understand given her background, there is no support which local authority here could give her which she would find acceptable and would take up.
20. Obviously approving the plan of adoption means that J will have to move from her current carer to adopters, but that would happen in any event if she moved to the care of her mother. I know the local authority and J’s foster carer will manage this in the best way possible. Adoption means J loses the link with her ethnic heritage, as I acknowledge adopters are unlikely to be from the same community. It may be that in due course, if her half siblings can be located, there could be some letterbox contact but I know that is not very likely. Nonetheless this factor cannot stand in the way of J having a permanent secure “forever family”.
21. I have to carry out the balancing exercise looking at the options but in reality that is not a difficult task here. J’s mother has withdrawn from proceedings and effectively has not offered herself as a carer. The only other option for J is adoption, but that makes it sound like a negative where is in fact I believe it is a positive option for her. She will have the opportunity of her own permanent family and the emotional and practical security that comes with that.
22. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of J being returned safely to her mother’s care, and that her needs for stability and permanence can only be met in an adoptive placement. This is an order which interferes with the mother's rights to family life but I am satisfied that the local authority’s final care plan for J is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order and, having concluded that J’s welfare requires me to dispense with the mother’s consent to placing her for adoption, the word “require” here again having the Strasbourg meaning of necessary, “the connotation of the imperative”. I therefore make a placement order authorising the local authority to place J for adoption.
23. There is one further direction I wish to make. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. This judgment, in setting out what I have read and the analysis I have conducted, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing J up. I propose therefore to make a direction that this judgment must be released by the Local Authority to J’s adopters so that it is available to her in future life. It is very important that it is passed on to the Adoption Team to give to them. I have written this not for the benefit of the adults but for J and wish to be sure it reaches her.
24. Finally I also make an order for public funding assessment for all the respondents in this matter. I hope that my reasons as given are sufficient but if the advocates require any further detail to be given I would ask them to let me know.