England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE UPON TYNE


IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: R (CHILDREN)

		The Law Courts The Quayside Newcastle upon Tyne NE1 3LA
		27th May 2015

JUDGMENT

HER HONOUR JUDGE HUDSON:

The Proceedings

1. These care proceedings concern three children: S, now 7 years of age; C, aged 5 years, who has global developmental delay and associated special care needs; and P, now 3 years old. They are the children of M and F. He shares parental responsibility for them as he is named on their birth certificates. The parents separated in July 2014, shortly before the proceedings were issued. The children remained in the care of M at the time of separation.
2. The care proceedings were issued on 22^nd August 2014. The children were accommodated by the local authority on 28^th August 2014 and placed in foster care. They were placed in two separate placements, with C placed separately from his sisters. They have remained in these placements to date. Unhappily, the case was not completed within the 26-week allocated track. It came before the district judge on 30^th January 2015 for an issues resolution hearing, then only three weeks before the 26-week track expired. The district judge listed the case for a final hearing on 26^th May 2015. That was an unsatisfactory delay which, had I known about it, I would not have countenanced.
3. The case first came before me on 18^th March 2015, following an application issued by the local authority seeking a section 34(4) order to authorise a refusal of contact between P and her parents. In fact, as the children have been accommodated by agreement in the proceedings, it was not possible for a section 34(4) order to be made, but agreement was reached as to the way forward at a hearing before me on 18^th March 2015. The case came back before me for a further issues resolution hearing on 29^th April 2015, in circumstances in which I did not consider the directions given on 30^th January 2015 gave sufficient focus. The case was listed before me for final hearing yesterday (26^th May 2015).
4. The local authority's final evidence and care plans were served as long ago as December 2014. The final social work statement and the care plans did not support the children's return to the birth family. The local authority plan was for placement of the children for adoption although, in each case, for the children to be placed separately from one another. The local authority issued placement applications in accordance with their plans. The parents served statements following the local authority's final evidence, in which they each set out a case for return of the children to their respective care.
5. The children's guardian, Sarah Oliver, prepared a final analysis dated 27^th January 2015, in which she supported the local authority's plans for the children's placement away from the birth family and the care plans of adoption. Due to her departure from CAFCASS, Ged Hennessy took over as children's guardian in about March 2015. He prepared an analysis dated 28^th April 2015 which confirmed his support for the local authority's plans.
6. In the days before the final hearing and in accordance with my directions, the parents each served position statements setting out their final position. In the case of F, he set out a revised position. He put forward a case to care for S. In the case of C, he accepted that C could not return to his care but he opposed the plan of adoption, supporting C remaining in long-term foster care. In the case of P, F accepted that the appropriate plan for P was her placement for adoption. He did not give his consent but indicated that, in the case of C and P, he would not oppose those orders being made. A position statement was served on behalf of M at a late stage, which reflected the difficulty that had been encountered in getting instructions from her over time. It made it clear that her final position was yet to be confirmed. She had then given instructions to her legal team that she is once again pregnant, with the father of her unborn child said to be a 17-year-old care leaver.
7. The case came before me on 26^th May 2015 when the parties requested further time before the hearing commenced. I was told in due course that the local authority had revised its care plans in respect of S and C, so that the local authority's plan for them is now long-term foster care. I was told that the local authority would seek leave to withdraw the applications for placement orders in respect of S and C to reflect the revised position. The local authority's plan in respect of S and C is now for continuing contact in the event of their placement in long-term foster care. In the case of each parent, the local authority proposes contact six times a year for each parent, providing S and C with sibling contact twelve times a year. The local authority's plan in respect of P was confirmed as her placement for adoption.
8. I was told that the position of the parents had also changed in that they were not opposing the plans in respect of each of the children. On behalf of the children, Mr Kincaid told me that the children's guardian agreed with the revision to the plans for S and C and that he supported the local authority's final position. For reasons that I will explain in a little further detail in due course, I approved the revised care plans for S and C. The case was, therefore, adjourned overnight to allow revised care plans to be prepared. They were filed and served today.
9. It will be clear from what I have already said that M and F do not consent to the proposed orders but they do not actively oppose them. In these circumstances, this judgment will be substantially shorter than it would otherwise be. It is, nonetheless, necessary to give a judgment which sets out the circumstances in which the court is to approve the plans for the children.
10. When the case was adjourned overnight, I made it clear that it was a matter for each of the parents whether they attended the hearing today. Neither parent has attended court today. That should not be taken as anything other than a reflection of the very difficult decisions they both reached yesterday.

Relevant Chronology

11. The children have an older brother, Sh, who was born in 2005. In 2006, care proceedings in respect of Sh concluded with final care and placement orders.
12. S was born in 2008, followed by C in 2009. I have already referred to his developmental delay and physical disabilities. He requires a wheelchair and has limited communication. P was born a little over two years later, in early 2012. The parents then had three children under four years of age.
13. The local authority was involved from the time of S's birth, with wide-ranging issues and referrals to social care. The referrals included inadequate basic care of the children, unexplained injuries to the children (considered to be a result of poor supervision), neglect of their health needs, failure to cooperate with agencies providing support for the children, domestic abuse in the parents' relationship and substance misuse (particularly on the part of F). A supervision order was made in respect of S in 2009.
14. A parenting assessment was completed in June 2014, which recorded some improvements following the local authority's sustained involvement but reflected a need for ongoing work and for the improvements to be maintained. In July 2014, the parents separated. The concerns about the children's care and wellbeing then increased. By August 2014, the local authority had concluded that the situation could not continue. Care proceedings were issued with interim care plans of placement of the children in foster care. At a hearing before the magistrates on 28^th August 2014, the parents agreed the children's accommodation and the children were duly placed in foster care. No orders have been required, with the parents agreeing to the children's placement in foster care throughout the proceedings.

Threshold Criteria

15. The parties agree that the threshold criteria are established at the date that protective measures were put in place, that is the date that proceedings were issued in this case. I have been provided with a composite schedule which set out the findings and concessions which reflect the areas in which I have identified cause for concern in the care provided to the children. This agreed schedule of threshold findings will be attached to the final orders made today. I approve the concessions as an appropriate and proportionate determination of the threshold criteria in these circumstances.

The Children's Circumstances

16. Significant difficulties have been evident since the children were placed in foster care, in particular so far as S's behaviour toward her younger sister is concerned. S has been observed to be physically aggressive and punitive towards P. There is also evidence of sexualised behaviour on the part of S. In these circumstances, active consideration has been given to separate foster placements for the two girls. On balance, the local authority concluded that, pending final decisions, the children were best maintained in a placement together to avoid further disruption for them. Their carers have had to maintain a high level of monitoring and vigilance.
17. In the light of the identified complexities in the children's behaviour and the relationships between the children and their parents, the court approved the instruction of Dr Helen Young to assess the parents and children. Her report is dated 28^th November 2014. She did not support the return of the children to the care of either parent. Her assessment of the children identified significant individual needs for each of them.
18. In the case of S, Dr Young identified heightened difficulties in her emotional and behavioural development. She considered that S's behaviour reflected her exposure to inappropriate parenting. She identified concern about S's attachments. In respect of C, Dr Young considered him to be a vulnerable child. Her report reflected his particular needs as a result of his global developmental delay. Dr Young described P as a traumatised child who has exhibited fearful and anxious behaviour. Dr Young recommended consideration of separate placements for the children. She identified a particular issue relating to P and contact with her parents. P had exhibited distress and anxious behaviour in association with contact. Dr Young recommended that contact should not take place if P's distress continued.

The Plans for the Children

19. Parenting assessments of M and of F and his partner were completed in December 2014. Those assessments did not support placement of the children with either parent. In circumstances in which no suitable placements for the children in the wider family were available, the local authority's final evidence and care plans in December 2014 supported separate adoptive placements for each child. The local authority's care plans recognised the children's high level of individual need. In the case of S and C, having regard to their respective ages, the local authority's plans provided for a time-limited search in each case for prospective adopters.
20. P has not attended contact with her parents since January 2015 as a result of her distress and self-harming behaviour associated with contact. It was that issue which first brought the proceedings before me in January 2015. The parents have, nonetheless, remained committed to their contact with S and C, which has taken place throughout the proceedings.
21. The local authority's revised plans for S and C reflect a lack of optimism that placements for adoption would be found for them. That is particularly so, having regard to the further passage of time (now more than five months since the plans were formulated) and, in the case of C, the prospect of him remaining in his current placement (which is meeting his needs extremely well and where he is thriving).
22. Ged Hennessy's report in April 2015 records the progress the children have each made in their respective placements but highlights their continuing care needs. The children's guardian endorsed the local authority's conclusion that the parents have been unable consistently to meet the needs of the children to an adequate standard and that they would not be able to do so in the future.
23. It was against that background and in the light of that evidence that the parents each reached the extremely difficult decision yesterday that they would not challenge the local authority's plans for the children.

Welfare Analysis and Proportionality Evaluation

24. In circumstances in which the threshold criteria are agreed, I look to the planning for the children, having the welfare of each of them as my paramount consideration. In the case of P, where the plan is one of adoption, her welfare throughout her life is my paramount consideration. I have regard to the welfare checklist in respect of each of the children: in the case of S and C, this is by reference to section 1(3) of the Children Act 1989; in the case of P (where the plan is for adoption) by reference to the 1989 checklist and the checklist in section 1(4) of the Adoption and Children Act 2002.
25. The significance of a decision to remove a child or children from the birth family cannot be understated. The case law from 2013 has emphasised the significance of the removal of a child from the birth family and that such a decision can only be taken where there is no placement for the child within the birth family which can meet that child's welfare interests. A plan for permanence away from the birth family through adoption can only be approved where nothing else will do and no other course can meet the welfare needs of the child.
26. In the course of my judgment, I have recorded particular characteristics of each of the children which are now reflected in the high level of their individual needs. They are all young children. They have not received the consistent parenting that they have required. Each now needs a high standard of parenting and care to achieve their potential. The children have established relationships with each other and with their parents. S and C enjoy the contact that they have with their parents. In the case of P, contact has had such a negative impact on her that none has taken place - unusually in the course of proceedings - since January 2015.
27. The parents both now accept that they are not able to provide the care that their children need and no other carers are proposed for them. I therefore look to the plans for each of the children. In the case of S, the plan is now one of long-term foster care with continuing direct contact with each of her parents six times a year. The change from a plan of adoption to one of long-term foster care reflects the high level of need that S is likely to continue to have and the demands that she is likely to present to her carers. It reflects her age and the circumstances in which her carers are likely to require recourse to specialist resources. Sadly, for S, her current placement cannot provide for her in the long-term. Her carers are only short-term carers and so the plan for S's placement in long-term foster care will require a move from her current placement. Placement in foster care will allow her to maintain the important relationships that she has with her parents and also her relationship with C.
28. In the case of C, the plan for long-term foster care, once again, reflects the anticipated difficulty in identifying prospective adopters for him in the light of his age and his disabilities. The local authority plan of long-term foster care avoids any delay in planning for C in particular, in circumstances in which his current foster carers have expressed a wish to provide long-term care for him if approved to do so. There is every reason to believe they will be approved: they are already long-term foster carers; they have provided an excellent standard of care for C since he was placed with them; they are undoubtedly committed to him. There is every prospect that his current carers will meet C's needs very well in the future. The plan for C includes ongoing contact with his parents and with his older sister. For C, the significant advantage of the revised local authority plan is the prospect of continuity of care for C, which will allow him to continue to build on the progress which he has made to date.
29. In the case of P, the plan remains placement for adoption. The professional and expert evidence supports P's placement separately from S (and C). The difficulties which have been evident in P's behaviour since she was accommodated make it very clear that she has been adversely affected by her early life experiences. The local authority is, nonetheless, confident that a placement for adoption for her will be found and that the plan is both realistic and achievable. It is very much to F's credit that, in advance of the hearing, he had reflected on P's circumstances and had recognised that, in circumstances in which he could not care for P, that the plan for P for placement for adoption would best meet her needs. The position of M, reached at the final hearing, reflected her acceptance of this at a later stage. The plan is for indirect contact to allow P to maintain a link with her birth family in a safe and in an appropriate way.
30. The local authority's plans for the children, as recorded in my judgment, are now the only plans proposed by the parties. There are no realistic options for consideration. I agree that the plans for the children meet the welfare interests of each of them. In the case of S and C, I agree that the plan for long-term foster care is, in each case, the plan which will best meet their welfare needs. It avoids any delay in what is likely to be an unsuccessful search for prospective adopters and, in the case of C, it gives the prospect of continuity of care. It will allow them to maintain links with their birth family though direct contact, in circumstances in which they are of an age to have a very clear recollection and understanding of their birth family.
31. In the case of P, the local authority and the children's guardian propose a plan of adoption, which is not opposed by the birth parents. P has a pressing need for permanence and security in a family that will provide for her not only throughout her childhood but beyond. She is likely to have particular difficulties over her future years, which will require the commitment of a family who have claimed her as their own. I am satisfied that, in P's case, the plan of adoption is the plan which will meet her welfare interests not only throughout her childhood but also throughout her life. In reaching this conclusion, I have taken account of the impact upon her of the loss of her relationships with her birth family if she is adopted.
32. I am satisfied that the plans for each of the children are both necessary and proportionate and that nothing else will do. I approve the plans for the children's placement and the contact proposals, as I have outlined them in the course of this judgment. I make care orders in respect of each of the children and give the local authority permission to withdraw the placement applications in respect of S and C.
33. The placement application for P then falls for determination. Her welfare throughout her life is my paramount consideration in accordance with section 1 of the 2002 Act, including consideration of the welfare checklist in section 1(4). Although there is no active opposition by either of P's parents to the application, neither has given their consent to it. In those circumstances, the court can only make a placement order in respect of P if the consent of each of her parents is dispensed with on the grounds that P's welfare requires it in accordance with section 52 of the 2002 Act.
34. My judgment sets out the circumstances which gave rise to the proceedings and the acceptance by all parties that the local authority's plan is the only realistic plan for P. It is vital for P that she is able to settle into her future family without any unnecessary delay. The making of a placement order will enable the local authority to pursue its planning with the greatest legal security and without delay. My judgment has recorded my conclusion that the plan of adoption is the only course which will meet P's welfare interests throughout her childhood and her life. I have reached the clear conclusion that, for P, the making of a placement order is the order which meets her welfare interests in allowing the local authority to progress the plan for adoption. In circumstances in which her parents cannot give their agreement to it, I dispense with their consent on the grounds that P's welfare requires it. I therefore make a placement order in respect of P.
35. I will direct a transcript of my judgment in an anonymised form at the shared expense of the parties. In accordance with the President's transparency guidance, and subject to any other representations, an anonymised version of the transcript will be published on BAILLI.
[Judgment ends]