England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF KR

		22nd May 2015

1. North East Lincolnshire Council ('the LA") applies to the court for a care and a placement order in respect of KR who is now 7 months old.. The mother of KR is KS ("the mother"). The father of KR is PC ("the father").
2. The final care plan for KR is that he should be placed for adoption. That plan is opposed by both of his parents. The Children's Guardian supports the care plans for the child.

Background history

3. The mother has been in a relationship with the father for a number of years (on his account the relationship did not become sexual till she was 16, the mother says she was 15). The relationship is a complicated one as the father is actually the mother's maternal step-uncle (the son of her grandfather's wife). At one stage when the mother was a teenager, she lived with her grandfather, his wife and the father. The mother is now 21 years old and the father is 37 years old.
4. The relationship between the parents has been violent. Each parent alleges that the other was the instigator of the violence. What is clear is that the relationship between this couple was extremely volatile with the police being called to resolve disputes, some of which appear to have been alcohol fuelled. On occasions the mother has been noted to have injuries and the father has been arrested. He has a conviction for battery against the mother from 2013. The father has a number of other convictions including a conviction from 2000 when he assaulted his 18 month old daughter.
5. The father has a history of mental health difficulties which he reports as stemming from an assault upon him in 2003 in which he received quite serious injuries. He has engaged in self harming behaviour in the past and suffers from ongoing anxiety. He attempted to take his own life towards the end of 2013 and was sectioned under the Mental Health Act at this time. The mother reports that she actually took on a caring role for the father when she was 15 years old, being responsible for collecting his medication and ensuring compliance with taking the medication.
6. This background lead to the LA becoming involved with the family when they became aware of the mother's pregnancy with KR. An initial case conference was held and a child protection plan instigated prior to KR's birth. This included support to the mother in attending the Freedom Project and support from Women's Aid. The plan at the time of KR's birth was for him to be cared for by his mother who was to live separate from the father and not allow any unsupervised or unauthorised contact.
7. These proceedings were issued shortly after KR's birth and the first case management order of the 13^th November records that the initial threshold was not challenged by the parents and the initial plan and interim supervision order were not opposed by the parents. Indeed, in her initial statement signed in December 2014 the mother records her acceptance of the LA concerns when she says "I wholeheartedly accept that there have been ongoing domestic violence incidents between myself and the second respondent and I accept that if I continue my relationship I will put my child at risk". Although she does go on to express her desire to be able to be in a relationship with the father if the assessments of him are positive she confirms "I will not re-enter into a relationship with the second respondent as I fear that such an act may put KR at risk. I therefore do not intend to resume my relationship with the second respondent".
8. The father in his initial response also goes some way to acknowledging the concerns held by the LA although he asserts that some of the concerns have been exaggerated. He makes clear his desire to be in a relationship with the mother and for them to bring up their son jointly.

The evidence

9. I have considered all of the papers filed and the evidence given orally and the helpful submissions from the parties.
10. During the course of the proceedings a psychological assessment of both parents was directed and Dr David Briggs assessed them on the joint instructions of all parties. His initial report was filed in January 2015 at a time when the parents were presenting as separated. He had met with and interviewed both parents and carried out psychometric testing. In his conclusion he records that the father is functioning in the extremely low range of ability. These functioning difficulties are compounded by significant mental health problems with depression and anxiety over a number of years. Dr Briggs describes that the father continues to receive significant treatment in the form of medication from his GP and has a well established pattern of needing professional support and help.
11. Dr Briggs was specifically asked to assess the risk of domestic violence posed by the father to the mother and to KR. He concludes that there is "a significant risk of intimate partner violence were they to have any significant involvement with each other". In addition, Dr Briggs advises that there is a possibility that KR himself would be at risk of the father using "physically clumsy and abusive parenting practice" due to the father's difficulties in coping with challenges and perceived aggression and his inability to cope with fast moving situations.
12. In respect of the mother, Dr Briggs is concerned that she may be susceptible to influence and to forming relationships with inappropriate partners in the future. He remained concerned that the mother would have difficulties in protecting KR from risks posed by the father. In terms of the parents' separation, he notes that there had been previous separations and that "risk management should not assume that the mother will remain separate from the father". For this reason he recommended social work surveillance and oversight for at least 2 years to include the need for unannounced visits. Dr Briggs was unable to see any route forward for the parents to co-parent KR.
13. Sadly, Dr Briggs' concerns re the separation of these parents proved to be well founded. In March 2015 the father filed a further statement in which he "confessed" that he and the mother had never actually separated other than for the period of 1 week and that he had actually been staying at her home most nights during the week, that he had been heavily involved in KR's day to day care and indeed had been allowed sole care of KR on a number of occasions. He further disclosed that the mother had advised him of what to say in his meetings with professionals.
14. Whilst the mother did not accept all of the father's assertions, she did accept that the relationship with the father had continued after KR's birth until March 2015 and that the father had been staying over at her home. She blamed emotional pressure that she had felt from the father and her concerns that he may harm himself. She accepts that she had not been honest with professionals who have been working with her and supporting her. This includes those working with her specifically on issues of domestic violence from Women's Aid and the Freedom Project. Telephone records were ordered to be disclosed and these revealed almost daily contact between the parents.
15. This new information was sent to Dr Briggs for his further consideration. He has filed an addendum report which was prepared without re-interviewing the parents. He concludes that the parents cannot be assumed to work openly and honestly with professionals in the future. He repeated his opinion from his substantive report that the mother cannot be relied upon as a viable and safe provider for KR. He was not reassured by the mother's position statement given the different accounts the parents gave in terms of the level of contact between them . He goes on to state "child protection in a case of this sort must rely on the integrity and candour of the protective parent. That parent must demonstrate a proactive relationship with the local authority". The further evidence presents a clear admission that the contract of expectations had been fundamentally breached and in his view "very fundamental safeguarding issues remain in this case". Dr Briggs has not been required to attend court for his evidence to be challenged and I accept his assessment and conclusions.
16. PA is the allocated social worker for KR and in her final evidence she provides an analysis of parenting capacity in which she sets out the level of work and support undertaken with the mother to include a community parenting assessment with the family resources service, completing the Freedom Programme and the changes group as well as receiving weekly support from Women's Aid. The continuation of the relationship with the father, in her view demonstrates that the mother has little understanding of the concerns raised in respect of the relationship.
17. The social worker also conducted a viability assessment of the maternal grandmother, (MGM) as an alternative carer for KR. Whilst acknowledging her undoubted love for KR, the assessment concludes that MGM would not be able to meet KR's needs throughout his childhood. She was not prepared to accept the deception that the mother had engaged in through her continuation of her relationship with the father. Furthermore, the complex family dynamics would be likely to raise difficulties and impact on KR. In addition, the social worker was concerned that MGM would be unable to assert herself with her daughter and would be subject to manipulation by her. In her final statement the social worker records that MGM has accepted the conclusions of the viability assessment and did not wish to pursue any further assessment or to continue to put herself forward as a prospective carer for KR.
18. The social worker gave oral evidence to me. She did so in a calm and consistent manner. I found her to be child focused but not unsympathetic to the parents. She was asked about the prospect of the mother moving to Leeds and that this would be a protective factor and would reduce the risk of the couple resuming the relationship. She did not accept this. She told me that the "context of the relationship is not about Geography".
19. I have read a statement from the MGM in which she sets out her commitment to supporting the mother in caring for KR. She has also given oral evidence to me. She is able to provide support to her daughter and it was clear to me that she is committed to her daughter and her grandson. I found her to be an honest and compelling witness and have no doubt that she would assist as far as she could in safeguarding KR. However, she was forced to accept that despite seeing her daughter and KR every weekend in the past few months, she was not aware of the ongoing relationship with the father nor of the very frequent telephone contact. She knew of one occasion when the couple had planned to meet and she had persuaded the mother not to meet with the father. I note that she did not report this to social services although she tells me that she would do now and I am prepared to accept that from her. There are a number of difficulties in the support that MGM is able to provide. The first is that the relationship between MGM and her daughter has been inconsistent with long periods passing with no contact between them. They have only very recently re-established contact with each other. MGM had initially indicated that she would not attend for KR's birth although she later accepted her daughter's request and arrived just as KR was born. I find that there is a real risk that this relationship could fracture again, either temporarily or permanently. MGM was candid in telling me that she had been unable to manage her daughter's behaviour in the past. Both MGM and the mother described to me the hope that they could become closer and it is clear to me that having spent so many years living apart there is still some way to go until the mother and daughter relationship is fully restored and repaired. The reality is that MGM still has care of her 4 younger children She would not be able to monitor and supervise the mother on a daily basis and given the way in which these parents were able to deceive all those around them, both professionals and family members, I find that the support that she could offer would not be sufficient to provide appropriate safeguards.
20. As outlined above, the mother has filed a number of statements in these proceedings. I have considered these together with the letter from her support worker at Women's aid which reports a recent improvement in engagement. In her first statement which she sets out her intention to separate from the father and remain separate unless the risks assessments showed that the father posed no risk. In a second statement filed at the beginning of March 2015 she confirmed that there had been some communication with the father but did not accept any ongoing relationship between the parents. She set out 3 occasions of unplanned contact that she said had occurred between herself and the father. In her third and final statement, after the fathers disclosure she accepted that her previous accounts had not been true or accurate and there had indeed been an ongoing relationship with the father that had been concealed from the professionals involved with the family and also from her own mother. However, she says that she has now gained insight into the impact of the domestic violence she had sustained in the relationship with the father and that she now intended to remain separate from the father.
21. The mother gave oral evidence to me. She presented as extremely distressed and I was left in no doubt at all as to how much she regrets her recent deceptive behaviour. She told me that her relationship with her own mother is improving and that she plans to move to Leeds so that she will have support from her and other family members. It was put to her that the father has links in Leeds through his own family. She acknowledged this in her reply that she could move to the other side of the world and there would still be a risk of them bumping into each other. To some extent her and the social worker were in agreement on this point that the physical geography would not in reality make a difference to the relationship.
22. She said that KR being removed from her care had caused her to recognise where her priorities lay. She told me that through the work with Women's Aid and the Freedom project she now recognised that the relationship with KR's father was not healthy. I am afraid that many of the phrases and words she used mirror what she said to Dr Briggs in January of this year when it is now apparent that far from recognising the potential harm to herself and KR from the relationship with the father, she was in fact attempting to deceive him, the court, the professionals involved and indeed her own family. The father says that it was the mother who told him what to say to Dr Briggs and effectively managed the cover story they provided in terms of the previous relationship, The father told me how difficult he had found it to remember what he was supposed to say. Given what Dr Briggs says in terms of the father's low intellectual ability I accept this evidence of the father and find that the mother has deliberately mislead professionals in a planned and purposeful way.
23. She told me in her oral evidence that the father had tried to contact her a week or so ago on her new number but that she had not accepted his call. She had not reported this. She said she had not given the father the number and was unsure how he had got it although it may have been from her friend that she had met through the Freedom Project who she said was also friends with the father. She accepted that she had previously given the father her new address which had been supposed to be kept secret from him and had asked him to help her move. She had not asked her support workers or the social worker to assist with this.
24. I was struck throughout the mother's evidence that whilst she was able to tell me what she now needed to recognise and do, there were frequent references to the father's involvement in KR's life in the future – she was clear that he should have contact with KR. She was also clear as to the support he had offered her and the extent to which she herself was responsible for the volatility and violence in the relationship, telling me that she would wind him up and flirt with other men. Given the amount of work that the mother has already completed on domestic abuse in relationships, I was not convinced that she had actually gained very much insight into how her relationship with the father was abusive.
25. The father has filed 3 statements. He has also shown me some lovely photos of KR. In his first statement he deals with the history of the relationship with the mother and some of the fathers own difficulties. As set out above, in his second statement the father discloses that the level of deceit that the parents have engaged in with the court and with the professionals and reveals that the parents have maintained a relationship throughout almost the entirety of KR's life, breaching the contract of expectations significantly on a frequent and ongoing basis. In his third and final statement he urges me to return KR to the mother's care and confirms that the couple have now separated in March 2015.
26. The father gave oral evidence to me. He was also understandably very distressed. His evidence almost entirely focussed on himself and the impact of these proceedings and the local authority involvement on himself. He told me that it was unfair to expect him and the mother to separate when their lives had been so entwined for so many years. He told me that if he could not be with the mother it was likely that his need for medication may increase and his levels of anxiety would increase to such an extent that he would be unable to leave his home, a situation that had arisen in the past and which the mother had helped him overcome. He told me that it was unrealistic for him and the mother to separate as her family was his family – describing relatives that they have in common.
27. The Children's Guardian (CG) has filed 2 reports in these proceedings. In the first she identifies the long history of concerns with the family and supports the plan for KR to be placed with his mother on the basis of the parents living separately and the father having no unsupervised contact. She also recommended the psychological assessment of both parents.
28. In her final analysis after the ongoing relationship between the parents had been revealed, she raises the concern that the mother had failed to take up the opportunity from mid March 2015-mid April 2015 to show some level of insight in respect of her actions. She continued, even after the father had disclosed the ongoing relationship, to keep this information from the support worker working with the mother during this time. Whilst the support worker has reported that the mother has shown an improvement in her openness in recent weeks and has signed up to complete the freedom course (which she has already completed once) the CG confirms her agreement with the analysis of the psychologist, Dr Briggs and in her view "it would be impossible for any professionals to monitor KR's safety effectively". In her view the parents made a choice to be dishonest and conceal the true nature of their relationship which left KR at an unknown level of risk.
29. She also gave oral evidence to me and confirmed her conclusions. She did not feel that the mother's proposed move to Leeds would make any difference to the couple's relationship. She was prepared to accept that there may indeed now be an actual separation and the mother was now engaging with the relevant projects. However, she told me that KR needs his future determining now. I agree with her and accept her analysis.
30. I was able to observe both the parents throughout the course of this hearing and during their own evidence. I was struck that each of them appeared to focus on the other whilst giving evidence, almost as if they were checking that they were saying the right thing and on a number of occasions they did in fact try to check the correct answer with the other. They sat side by side throughout the hearing and were physically very close. Whilst I am prepared to accept both parents evidence that they have not had actual direct contact with each other for a number of weeks – I am afraid that I find that the emotional connection and relationship between these parents is far from over. I do not believe that the father will be able to remain separate from the mother, he is too emotionally needy and is unable to reflect on what must happen. Whilst, when pushed, he stated he would manage on his own and would stay separate, I was not at all convinced of this. Even if the mother does now intend to remain separate, I am unable to accept that she has the emotional strength or maturity to remain separate, wherever she geographically locates herself. The support on offer from her mother would not in my view be sufficient to enable the mother to emotionally separate from the father. I would need to see a significant period of time (probably in the region of 2 years in line with Dr Briggs' original recommendation as to the period in which monitoring would be required) where there had been no contact between the parents and the mother had established independent living. I am not at all optimistic that the mother is even at the stage of being able to separate and therefore to wait of such a period to assess this would not be in KR's interests.

Threshold

31. The parents accept that the threshold is crossed in this matter and in the light of the evidence that I have read I have no hesitation in approving and adopting that threshold as prepared by the LA and finding that KR is likely to suffer significant neglect, physical and emotional harm attributable to the care he would receive from his parents in the event that no orders were made.

The law – welfare issues

32. The finding that the threshold in accordance with S.31 (2) Children Act 1989 is satisfied is the gateway to the making of orders in respect of this child. Within the care proceedings, in determining the appropriate order I must follow the approach set out in S.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. In determining what is in a child's best welfare interests the court must have regard to each of the factors set out in the welfare checklist in S.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child's welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.
33. I accept that delay, whilst usually contrary to the welfare of the child, may be purposeful if a short period of delay would enable an important piece of information or evidence to be established. The mother invites me to adjourn for a period of time to enable her to demonstrate her ability to remain separate and to demonstrate and ability to work openly and honestly. A period of 3 months has been suggested for an adjournment of this further assessment. I am afraid that I am not at all satisfied that such a delay would be purposeful or would provide any further necessary information. Even if the mother is able to remain separate and to engage with professionals, as I have already found, a much more significant period of time would be needed before I could be satisfied that the parents had been able to physically and emotionally separate, I therefore find that such delay would be contrary to KR's interests.
34. As the LA also applies for a placement order in this case I must have regard not merely to the 'welfare checklist' in section 1(3) of the 1989 Act but also to the 'welfare checklist' in section 1(4) of the Adoption and Children Act 2002. My paramount consideration, in accordance with section 1(2) of the 2002 Act, is the child's welfare "throughout his life."
35. In addition to those statutory provisions, I have had regard to the Article 8 rights of KR and of his parents and must endeavour to arrive at an outcome that is both proportionate and in his best welfare interests.
36. I have found it helpful to review the cases in relation to placement orders applications and in particular have been assisted in this process by the review of recent developments in case law carried out by the President in the case of Re R (A child) Neutral Citation Number: [2014] EWCA Civ 1625. In that case he confirmed :-

"Where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs. "

37. He also emphasised that the law and practice are to be found definitively stated in two cases: the decision of the Supreme Court in re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of this court in re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035.
38. The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child's welfare, "nothing else will do". As Baroness Hale of Richmond said in Re B, para 198:

"the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."

39. This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

"family ties may only be severed in very exceptional circumstances and that 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. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."

40. Further, he reiterated that Re B-S did not change the law but set out the core requirements when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order.:-

i. First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option

ii. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge

iii. The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option."

41. He considered how the court should determine the "realistic options" and cited with approval the words of Pauffley J in Re LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam), para 40, "the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched."
42. It is not disputed by any of the parties that there are effectively 2 options available for KR now, the first is that he is placed in the care of his mother, the second is that he is placed for adoption. There are no other family members putting themselves forward to care. In considering those options for KR I entirely endorse and adopt with respect the observations of Lord Templeman in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, at 812,

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

Judgement

43. Whilst I am conscious of repetition, adoption really is an option of last resort and should only be ordered if it is the only way in which the child's needs can be satisfactorily met. A placement order can only be made if either the child's parents consent to the order being made or if the court dispenses with the parents' consent. Section 52 of the Adoption and Children Act 2002 (ACA) provides that the court cannot dispense with a parent's consent unless it is satisfied either that the parent cannot be found or is incapable of giving consent or that the welfare of the child requires that the parent's consent be dispensed with.
44. Sadly, whilst I have found this a very sad case, I have not found it a difficult case to determine. The evidence is overwhelming that the relationship between the parents poses a real and significant risk to KR. This is not a fanciful risk or a remote risk. The history of the parents' relationship shows that domestic violence has been a real and prevalent feature – one which has lead to police involvement on many occasions. Dr Briggs concludes that that risk is ongoing and that KR himself could be at risk of injury from his father in the future.
45. That risk may become manageable if there was confidence that the mother had recognised those risks and would work with professionals to understand that risk and to prioritise KR's protection over and above her relationship with the father. Sadly, she has not been able to demonstrate this and in actual fact has demonstrated that she has the ability to deceive professionals and the court to a significant degree. I find therefore that I can have no confidence in her ability to maintain the separation that she now asserts has occurred, nor that she can be relied upon to be honest about the status of her relationship.
46. I cannot see any way that this risk can therefore be managed. As I say, this is very sad as by all accounts, the mother has the ability to meet KR's needs to a good standard, but her ability to prioritise and protect him falls far short of what he needs. I am not sure why the mother did not reconsider the need to not only separate from the father pending assessment but the need to be open and honest and work with those whose role it was to support her in parenting KR. Perhaps she believed she would simply never be found out? I am sure that she loves KR and can only conclude that she herself is so caught up in the family dynamics and entrenched in the relationship with the father that she was unable to properly consider KR's needs and what she had to do to meet those needs.
47. I am therefore drawn to the almost inevitable conclusion in the light of this background and evidence, that adoption is the only option that would afford to protect KR from the harm I have found he is at risk of in a family placement. I am forced to the conclusion that nothing else will do. I therefore make the orders as applied for by the LA and dispense with the parents consent to the placement orders.
48. I know that this will be devastating for the parents and for the wider family. As I have stated, I have no doubt that KR is loved by both his parents and his wider family but sadly, that love in itself is not enough.
49. I think it is important for KR's future carers to understand how KR came to be cared for by them and I therefore give leave for this judgment to be released to prospective adopters, once KR has been formally linked with such adopters.
50. I 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.