England and Wales Family Court Decisions (other Judges)

 

 

IN THE MEDWAY COUNTY COURT No. ME26&27/2015

Anchorage House,

47-67 High Street , Chatham .

15 ^th July 2015

Leave to Oppose Adoption Application

This Judgment was delivered in private

 

B e f o r e:-

HER HONOUR JUDGE CAMERON

 

 

 

 

KENT COUNTY COUNCIL

Applicant

v

 

T

Respondent

 

EXTEMPORE JUDGMENT

(As Approved)

 

 

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MISS BURT of Counsel appeared on behalf of the Local Authority.

The mother appeared in person.

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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.

 

 

HER HONOUR JUDGE CAMERON:

THE APPLICATION

1.                   The Court is dealing today with the mother’s Application for leave to oppose an Adoption Application in regard to two of her five children in all. T represents herself and Miss Burt of Counsel represents the Local Authority. For completeness I state that H, who is the father of these two children, has had no involvement in these proceedings whatsoever, does not attend today, and in fact I believe has had no involvement in the children’s lives for probably something like six years. Indeed, I think it was when, S, the youngest child that I am dealing with today, was six months old.

2.                   So the children that the Court is dealing with today are S who was born on the 3 ^rd March 2009 and who is therefore aged six and his older brother, J, who was born on the 2 ^nd March 2007 and who is therefore eight.

3.                   This matter was actually transferred for hearing to me by the Magistrates, they having dealt with the matter on Friday 10 ^th July. The case has had quite a long background history getting here. I need only touch on a few essential dates for the purposes of this Judgment.

THE CHRONOLOGY

4.                   There were concerns expressed about the mother’s care of her then children in both 2010 and 2011. Looking at the other children for the moment: G and B have already been adopted and JW, who is now 13 -- he being the subject of a Special Guardianship Order to his grandparents -- there were Child Protection Plans on the 3 ^rd December 2012. All the children were actually removed and accommodated under Section 20 initially by a joint visit by the Police and Social Work Team, that being on the 7 ^th December 2012. That therefore is now more than two-and-a-half years ago. So none of these children have lived with their mother for that extensive period of time. The boys that I am dealing with today then were respectively aged five-and-three-quarters and three-and-three-quarters.

5.                   Inevitably Care Proceedings were launched and the Threshold Hearing was a four day full and thorough Hearing as I found it to have been between 11 ^th and 18 ^th July 2013 before the Lay Justices.

6.                   There was then a Welfare Hearing on the 6 ^th and 16 ^th October 2013 when Care and Placement Orders were made. The mother tells me today that she decided not to be legally represented for that important Welfare Hearing. I think she felt she had been ill-served by her legal representatives. That is as it may be and was her decision. She was able to, as she has been able to today, to speak eloquently on her own behalf I am sure.

7.                   The mother then appealed those Care and Placement Orders very substantially out of time on the 11 ^th August 2014. That appeal was refused and permission to appeal the appeal was also refused.

8.                   Accordingly those orders not being successfully appealed at all, there are those facts and matters found behind which this Court cannot go. So those findings of fact stand.

9.                   I dealt with the matter in September 2014 in relation to the younger children but I have re-read the decision of the Lay Justices of the 18 ^th July 2013. I took the opportunity to check carefully with the mother as to whether or not she wished me to hear the matter. She was entirely content and did not want me to recuse myself at all so the hearing continued.

THE THRESHOLD

10.               The mother had already conceded, on a limited basis, as she reminds the Court today, certain of the Threshold criteria. She does accept that the convictions for poor school attendance for both JW and J were rightly made out. She accepted that domestic violence had indeed taken place in her relationship with H and that there had also been verbal altercations between her and Mr. B. Indeed, there were Police reports which of course the Court had read which referred to a number of those incidents.

11.               She also accepted importantly that in relation to those areas the children did suffer or were likely to have suffered significant harm. That is of course because firstly children need to attend school and to have socialisation with their peer group but secondly it has been very, very well recognised for many years now that not only shouting and verbal arguments but particularly also physical violence witnessed or heard by children is very, very damaging indeed to their own psyches and their emotional development.

12.               Mr B himself, who has been the mother’s partner for some six years now she told the Court, although they do not actually live together they have an ongoing relationship, has not himself filed a statement or given any evidence but was given an opportunity to cross-examine any of the witnesses.

13.               The disputed facts about the unhygienic state of the house and it being unsafe for the children mother wholly disputed. Indeed, she has said today it was only one previous house. I remind myself there have been quite a few different accommodations. Her father’s address was the one in which home conditions were considered very poor and neglectful for young children. Of course, it is in those two houses that these children were living and being reared.

14.               There was also dispute about the Police version of a domestic incident. There was also a dispute about mother saying she made every effort to work with professionals. That has certainly not been the Local Authority’s view of matters.

15.               It is clear from the Judgment in relation to the findings on disputed facts that the Local Authority have very much proved its case on a balance of probabilities such that the Magistrates were fully satisfied that Threshold was made out. In fact the Threshold Schedule ran to some 13 paragraphs. This was not the only area of the children’s welfare that very much concerned the Court. It was several facets of the way in which they had been parented by their mother.

16.               What the Magistrates found was that they did not accept the mother’s evidence as credible. They were satisfied that the property was in the state depicted in the photographs when Miss Kapungu the then Social Worker and the Police Officer arrived. They referred again to the large number of Police reports and the mother asserting that she did not say things recorded in those reports. She simply did not say certain things to the Police she asserted. That again is all a matter of record. The Justices said this:

“We find it inconceivable that all of these reports were recorded inaccurately. We are satisfied that there has been ongoing domestic violence between mother and Mr. B and that the children would have been aware of this and affected by it.”

17.               Also dealing with paragraphs 9 to 13 of the Threshold document the Lay Justices looked very carefully at that. Various witnesses of course were cross-examined. There was a thorough hearing. Again, mother said she had been misquoted on many occasions including by her G.P. So that was the theme running through that case.

18.               The Social Worker, Jackie Kelly, said that she found it very difficult to work with the mother given the level of distrust. She said that it was difficult to believe anything the mother said and it was so time consuming having to double check everything.

19.               Certainly the Lay Justices in their Judgment having heard the mother’s evidence concluded this:

“We are satisfied that she has failed to co-operate with all the professionals involved and she does not recognise what has gone wrong in the past and what needs doing to put it right.”

20.               They were quite clear that the children had suffered significant harm as a result of the care given to them or not given to them not being what it would be reasonable to expect a parent to give.

CHALLENGE TO ISW REPORT

21.               They took into account all factors including the report of the Independent Social Worker, Christine Bailey, that the mother required some long term work, needed to understand her past difficulties and to have total acknowledgement of them. The mother herself had had a very difficult background. It was felt also that she could not make significant changes in the timescales needed for the children. At that stage, as Miss Burt has referred to today, they were already sadly getting beyond the cusp at which they might have been able to be placed in an alternative family setting. Accordingly time already was beginning to run out for them then.

22.               About the ISW the mother, who has very thoroughly prepared her case, as she always does, has sought to suggest today, nearly two years later, and having gone through the appeal process, that for some reason the Court should completely disregard Miss Bailey’s very full report, as although it was a thorough and comprehensive report, she was also employed as an Independent Reviewing Officer by the Local Authority. I make it plain that that was not taken as a point on appeal. This was raised altogether too late today. This was a woman who would have been named in an Order, a Direction of the Court, that she should undertake a full report and that would have been given a timescale and there would have been funding for that. So I am quite clear that mother has no issue successfully to stand upon in relation to Miss Bailey’s report.

23.               I am just going to look at Miss Bailey’s report because mother comments that the Independent Social Worker was not as it were a psychiatrist or trained in mental health but of course Social Workers have an enormous amount of experience and they are of course considered as expert witnesses, and this was an expert report indeed, dealing with families troubled by mental health issues, or post-natal depression or as a result of domestic violence and so on and so forth. I do not find in favour at all with mother in relation to that.

24.               Moreover this report was fully available for the four day Threshold Hearing. There could well have been a referral to a psychiatrist or there could have been evidence from mother and her own legal team about that if it was disputed that this was an inappropriate report. It is very plain indeed that the lay Justices accepted this report and its findings.

25.               Of course it was not only in relation to the mother but there were assessments too of H and the children as well and their emotional difficulties and so on and so forth. The report also dealt with the lack of school attendance, the prosecutions and the mother not recognising the severity of the situation because although there had been that Out of Hours and Police visit on the 17th November, the home then being in a state of neglect, that had not been acted upon and on the 7 ^th December there was that removal because the home was still in a dreadful state. It was simply not fit for children whatsoever.

26.               H referred to the prolific cannabis use by the mother. I do not think that features strongly in the Threshold findings.

27.               The mother had been offered various supports, Sure Start, Solihull, attending only three out of 10 and so on. Overall there was a real unassailable finding that the mother could not and would not engage or demonstrate to the Local Authority that she was motivated to change.

28.               JW had spent the first ten years of his life in his mother’s care and he presented as a child who suffered from neglect. He was socially isolated at school, lacked social skills, and was hungry when he arrived at school.

29.               What Miss Bailey had said in her conclusion and recommendation was a reference to the mother then disputing the reasons for the children’s removal from her care. She had stated that:

“It is not my fault that I do not get the kids to school. It is not my fault that the DVLA took my dad’s van away with my belongings. It was not my fault that I was burgled. It was not my fault that I had problems with Sure Start. It was not my fault that G had bronchitis. I am being blamed for everything.”

30.               This is still very much what is the situation today in relation to the mother’s application, although she just said at the end of her evidence to the Court:

“I realise now where I went wrong. I have totally now come to terms with my poor parenting. I should have given the children better.”

31.               I am afraid that that with her denial and lack of acceptance and therefore lack of insight, still really is a continuing theme throughout this case.

32.               The paragraph that mother objects to in Christine Bailey’s report of the 4 ^th June 2013 is this:

“The children have experienced a most difficult childhood and will require space, a secure environment and experienced parenting in order to overcome their difficulties. It is doubtful that even if mother co-operated with the Local Authority that she would be able to make the necessary changes in time for the children. The mother requires long term, multifaceted work in order to address her own emotional needs and vulnerabilities. She has suffered from most traumatic life experiences….”

Pausing there, I record that the mother has just left Court. I continue:

“…rejection from her mother and a high level of violence from at least two of her partners. She was described by her former social worker as not being in touch with reality. She is convincing when relating experiences and incidents that are clearly untrue.”

So Miss Bailey concluded that mother was wholly unable to acknowledge past mistakes and continues to fabricate statements.

33.               The Justices finding as they did, they then went on properly in those two separate days of Hearing to deal with welfare. They reminded themselves that the mother had been present during that Hearing, although she was not represented. They also stated that she had taken the opportunity to cross-examine witnesses and to make submissions to the Court. She did her very best in relation to that Application also.

34.               The Bench had proper regard to the very clear conclusion of the experienced Guardian, Mr. Davies, who said that he fully supported the Local Authority’s recommendations ruling the mother and Mr. B out as carers. He said this:

“I have not had sight of Ms T’s drug test results which were due to be filed on 5 ^th July 2013. On 16 ^th May 2013 Mr. B and Miss T said they continued to use cannabis during the proceedings. I believe this illustrates their lack of understanding of the Local Authority issues about their ability to be emotionally available to the children and prioritise the children’s needs above their own. During the interview Ms T was argumentative and walked out of the interview on several occasions when Mr. B or I disagreed with her point of view.

Whilst I have no doubts that Ms T deeply loves her children and Mr B loves G they are unable to demonstrate that they have the capacity to work with professionals and care for the children at this stage. Ms T does not cope with criticism and denial appears to be her defence mechanism.”

35.               The Magistrates found that they had heard evidence from the mother and witnesses on 18 ^th July and accepted that conclusion as fair and accurate. That is in relation to the disputed facts. They worked properly through the Welfare Check List and all its factors. They reminded themselves about the European Convention on Human Rights and of course in particular Article 8. They approved the Care Plans filed by the Local Authority, finding that adoption would be the best for the welfare of J and S provided of course that the Local Authority could find a place that could take them together within six months.

36.               That placement was achieved, albeit slightly later than had been intended, but that often is the way. It does not mean of course at all that this is not a perfectly valid Adoption Application. However, if adoption could not be achieved, then long term foster care with their current foster carers, corporate parenting, which the Court does not particularly find favourable in many cases, would have been the outcome for them.

37.               However, having considered also the Welfare Check List in the 2002 Adoption and Children Act they went on to make that Placement Order and also dispensed with the mother’s consent to that placement. As stated all of those decisions fully stand as they have not been successfully appealed.

38.               What then occurred was that on the 18 ^th September 2014 J and S were placed with the proposed adopters. So they have been there for some nine months. They are as I have heard blossoming and doing very well there and are very well settled.

The Adoption Application

39.               An Adoption Application then was issued on the 9 ^th April 2015. I should say that in the background various family members had been Viability Assessed, in particular JB, but there was no family member who could offer a secure alternative to the children.

40.               For completeness I add that I have heard today that the mother’s father, that is the maternal grandfather, apparently is about to issue what I gather is an Application for Special Guardianship which of course is extraordinarily late in the day. This is something that he should have done two years ago plus when alternative family placements were being properly considered as they always are by the Local Authority. (The mother returned to Court)

41.               In relation to the Adoption Application the usual directions were made in an order on the 28 ^th April of this year. It has been wholly accepted that that was not served on the mother or on H until 28 ^th May. To deal fairly with that, the Hearing on the 5 ^th June was adjourned and vacated in order to allow the mother properly to prepare her application for leave to oppose the Adoption Application. The matter then was listed nearly five weeks later on the 10 ^th July and that Hearing before the Lay Justices on Friday was then transferred to me today for adjudication.

42.               The mother has put in a fulsome position statement which I have taken the opportunity of reading and she relies in essence on three factors which she says are sufficient and to such a degree and extent to which the Court should open the door as it were.

THE LAW

43.               I remind myself of the law that I apply here before I consider the mother’s own submissions. By virtue of course of Section 47(5) of the 2002 Adoption Act a parent cannot oppose the making of an Adoption Order without the Court’s leave. No Court will grant leave until satisfied that there has been a change in circumstances since the Placement Order was made.

44.               Very fairly today it seems to me the Local Authority have agreed that the Court should look at the matters as from September 2014 when the Court made the Orders in relation to the two younger children, G and GB. I heard the matter on that occasion. I was satisfied then that the mother had not evidenced any such change of circumstances.

45.               There is therefore that two-stage test for considering such an Application for leave to oppose. Has there been that change in circumstances? If so should leave to oppose be given bearing in mind all the circumstances of the case and particularly the parents’ ultimate prospects of success in resisting the making of an Adoption Order if given leave. Secondly, of course the impact on the children here if the parents are or are not given leave to oppose taking into account the children’s welfare throughout their lives, that of course being the paramount consideration there.

46.               I have taken into account the case of Re P which very much established the test. Has there been a change in circumstances since the Order was made which is material and of a nature and degree which is sufficient to open the door to a consideration by the Court of the exercise of its discretion to give the parents leave to defend?

47.               The Local Authority here state that there have not been relevant changes in the circumstances of nature and degree to be so sufficient. Mother – and I will deal with it in one moment – says that her circumstances have changed in several different ways.

48.               In essence she relies on three today. She has completed, I take into account, the Triple P Parenting Course but that had been completed at the time of her statement back in July of last year. That was in relation to Adoption Proceedings for GB. There has been no further course undertaken as I understand it by mother, certainly none that she mentions to the Court today.

49.               I have taken into account also – and it is set out at A 13 and 14 of the bundle – the 19 points that have been distilled from all the leading cases in relation to such Applications. The Court should not set the bar of the test too high because parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.

50.               I have also borne in mind – and I will not now read out paragraphs 1 to 19 of the procedure and the law – but I have properly reminded myself of all the factors that I am required to take into account.

51.               Turning then to the mother’s position statement. She also deals with the law. A lot of the law that she refers to, Re B – S and so on and so forth are very much what the Court would have considered at the time before it made the Placement Order. All things being equal the best person to bring up a child is the natural parent. The Court should really go through all possible alternatives before deciding on the draconian as it is, and last resort as it is, decision in relation to adoption.

52.               I am satisfied that the lay Justices before they made the Final Care and Placement Orders properly went through the required law.

53.               The mother also refers to Pauffley’s J decision in Re N L (A Child) [2014] wherein she stated:

“Justice must never be sacrificed on the altar of speed. Can the Court be totally satisfied that adoption is the only option because it is of course a serious matter, a lifelong decision which has that effect of entirely severing the parental ties to the child?”

54.               So I have taken into account all the cases that mother has referred to as well. She also refers to setting the bar too high.

55.               She also seeks that she wishes to have contact with the children, post adoption contact if that is what the Court Orders, and also today she has added that she would like there to be sibling contact between certainly JW and J and refers to Alice Roger’s report which I have seen saying that the boys have a good bond, attachment and relationship between them. She says she feels that to be so important in fact that she would be prepared no longer to have her three or four times a year contact to JW via his grandparents, the Special Guardians, if it would mean that the boys could have contact.

56.               I have dealt with that only in this way today so as not to go beyond the proper comment that this Court can make, that it is very much up to the would-be adoptive parents to consider the issue of contact with their supporting team and the Social Workers. Of course one, nothing would be arranged that would put JW under any responsibility or pressure to inform his mother of the whereabouts of his siblings; or two, perhaps more importantly from the point of view of J and S, focussing on them for the moment, to in any way undermine their placement and to destabilise the current stability and permanency it is intended that they should have.

DECISION ON ANY CHANGES

57.               Therefore, what mother says – and she has been very articulate in her submissions to the Court today as she always is – is that the home conditions have improved. She says in fact that they have always been impeccable bar the grandfather’s home and the other home they had. What the Local Authority say in relation to that is that it is accepted -- and it was conceded indeed in past hearings – that at times the mother does keep the home clean and tidy and at times did do so when the children were with her.

58.               Of course at the moment she lives alone with her father and Mr. B lives alone with his mother, and they have no child between them. Certainly the past history showed entirely and vividly that while she could make an effort, it was the sustainability of that that was so concerning, that she could not continue and deal with that daily, weekly or monthly which is of course what children require for their absolute safety, to live in an hygienic and not neglectful situation. Accordingly, that indeed had not been a new issue.

59.               Christine Bailey in fact referred to it in her own report. I have referred to the fact that on the 7 ^th December the conditions were dreadful. It was not simply the dog faeces, it was the whole organisation there provided for the children. That was their home at that time and the matters crystallised very much then and there although on the 17 ^th November I think it was only a few days earlier there had been a requirement to make things better during a previous joint visit.

60.               Therefore the Court is not satisfied at all that the mother in a sustainable way could keep home conditions absolutely satisfactory and safe and comfortable for one child, let alone two.

61.               The other issue is in relation to therapy. Mother says that she does not require that. She had only had some postnatal depression and that had very much impacted on her own low self-esteem. Perhaps also that interpolates the relationship with two on occasion violent men has added to that as well.

62.               She says there has been no proper mental health diagnosis of her. That is factually true. Indeed, mental health was not entirely what the evidence was focussed on but it was multi-faceted therapy to assist with her own background issues both as a child and then as an adult.

63.               The mother says that really she did not suffer any depression at all until her child was removed from her at hospital. In essence it is all the Local Authority’s fault that she has had some depressive issues.

64.               Miss T still says that this therapy is not required. The Local Authority’s stance towards that is that the mother remains in this really downward spiral of denial and lack of insight and none of that bodes well in relation to change being sustained in relation to the care of children and her own circumstances changing.

65.               The mother had referred in her position statement at A1 in the bundle to this:

“I have a letter from my doctor stating that I do not need multifaceted therapy for my depression as I was only diagnosed with depression after the removal and subsequent adoption of my youngest children last October and have made very large steps and am now in a very positive place in my life.”

She said:

“Please see Exhibit B.”

There is no exhibit to her statement at all. Having checked with the mother – because she has been allowed those extra three or four weeks or so – and checked also with the Local Authority and checked the Court files there is no statement or report from a doctor at all. Indeed, the mother has accepted that. Nothing has been forthcoming. This of course is her application and therefore her responsibility is to put in any document, or any evidence that she would wish the Court to consider. I am afraid there is nothing from her doctor at all. That really is quite a big gap in her case today as I find and has not done her case any good service at all.

66.               The third factor is that she says there has been no domestic abuse incident between her and Mr. B. Miss Burt relied historically on the July 2014 Storm Report that the Court of course saw in the September 2014 Hearing. I ventured to say straightaway to mother that it was a good point indeed that she raised, but there has been no further Police disclosure. The point is neutral on that because there has been no evidence, no disclosure from either side. I am not sure really indeed if any has been sought and they are not living together.

67.               What mother also says is that Mr. B has undertaken or engaged with the CDAP course. That is a course for perpetrators of domestic violent. That of course does not only include physical acts of direct violence but includes very much shouting, belittling, threatening and so on and so forth. There is no document confirming that this was otherwise. Mother says too that she has attended the Freedom Project. I have referred already to her historical poor attendance at the Solihull Project. Again I regrettably see no supporting evidence from the Freedom Project which mother could and should have gathered to support her attendance on completing that course. So her application is simply not supported by that at all.

68.               Whether there has been any such change – because of course mother’s case is very much “Mr B and I want these children back. We want to eventually co-parent after there has been some sort of rehabilitation or transition process” – I have simply no evidence from the mother that those really vital steps have been taken whatsoever.

69.               Therefore in essence the Local Authority say that mother has failed in every respect. I am bound to say while mother says to the Court today: “I have totally come to terms, I have changed, I don’t lack insight any longer. I am right there. I now understand. I now realise fully. I just want to be their mum” – and of course the Court wholly accepts that she entirely loves her children and is proud of them and would want them to be living with her -- I cannot find that the mother has succeeded on the first limb of the test. I cannot find with all human sympathy to her that she really has begun to show and exhibit to the Local Authority and to the Court the required change in such a sufficient degree and nature that the Court door properly can be opened at all. Accordingly I do and must dismiss the case as falling at the first hurdle.

70.               Accordingly, it is not necessary for me to go on to limb two. However I add that had I found that the mother had evinced sufficient degree and type of change of her own circumstances, and indeed her own mind set and approach and insight, then the Application in any event would have failed when the Court looked at part two and at the children’s welfare and their best interests.

71.               These boys now eight and six absolutely require permanency. They require final decisions to be made about their lives as had been intended by the Lay Justices back on the 13 ^th September 2013. We are getting on for two years down the line now.

72.               The goodbye visit mother tells me, and I am content to accept, was held on the June 16 ^th 2014. So they have not seen their mother for a whole calendar year. They have not been in their mother’s care for a whole two-and-a-half years. They have had a different standard and type of overall emotional and practical care given to them by firstly foster carers and then by the proposed adopters for the last nine months. That is a long chunk of time in any young child’s life.

73.               It is clear to me that nothing must be done to destabilise them, to upset that settlement and to pitch them back into the sort of uncertainty which allowing this Application to succeed would inevitably result in because they would have to leave there, they would have to go back into foster care, they would potentially have to be assessed in relation to a transition plan and have an unlooked for third move. That would be a major and probably very traumatic upheaval. The mother would have to undergo a parenting assessment and all sorts of other assessments and the Court could well see that all of that could take easily six to nine months. I would be doing a complete disservice to the welfare of these two young boys if I allowed that.

74.               Accordingly I am entirely satisfied and have no hesitation whatsoever in saying that the second test also would not have been made out whatsoever.

75.               Accordingly I refuse the mother’s Application for leave to oppose the Adoption Application.

76.               The mother has fairly asked if this Judgment – and of course it is an ex tempore immediate Judgment – can be put on BAILII. I am content for that to occur of course and the Local Authority agree. That concludes this Judgment.

AVTS REF: 6137/H4892