England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT BARNET

No. BT14C000049

 

 

Regents Park Road

London N3 1BQ

Wednesday, 26 ^th August 2015

 

 

Before:

 

HER HONOUR JUDGE MAYER

(In Private)

 

 

B E T W E E N :

 

 

 

AB Applicant

 

- and -

 

LONDON BOROUGH OF HARINGEY

& Anor. Respondents

 

 

_________

 

 

Transcribed by BEVERLEY F. NUNNERY & CO.

(a trading name of Opus 2 International Limited)

Official Court Reporters and Audio Transcribers

5 Chancery Lane , London EC4A 1BL

Tel: 020 7831 5627 Fax: 020 7831 7737

info@beverleynunnery.com

_________

 

 

 

THE APPLICANT (Mother) appeared in Person.

 

MS. K. McNAMARA (Solicitor Advocate, instructed by The London Borough of Haringey) appeared on behalf of the Respondent (Local Authority).

 

MS. CHEETHAM (instructed by Guile Nicholas Solicitors) appeared on behalf of the Guardian.

 

_________

 

J U D G M E N T

(For revision)

JUDGE MAYER:

 

1                     CD is now six years and almost nine months old. I deal today with the conclusion of his mother's application for permission to revoke a placement order made by District Judge Johns on 24 ^th August 2012.

 

2                     On 6 ^th July of this year I gave a judgment dealing with the background to the mother's application. I made certain findings. I came to the conclusion that as far as the mother was concerned, there has not been a change in her circumstances such as would justify consideration of the second part of an application for revocation of a placement order. I have, however, expressed concern about CD’s apparent perception of his predicament , and wondered whether this would have constituted a change sufficient for me to move on to consider the likelihood of a success of the application for a revocation of the placement order.

 

3                     I ordered a piece of work to be done with CD and his foster carers; my previous judgment deals with the detail.

 

4                     My judgment of 6 ^th July must be read in conjunction and, indeed, as a precursor to this one. It deals with the background, the law and the reasons for adjourning until today.

 

5                     It is particularly important that both judgments are in front of any appellate court should the mother appeal my decision, something she has indicated she would do if I did not agree with her.

 

6                     Vivienne Kenley, an independent social worker specialising in adoption and a guardian of 25 years' experience, prepared a comprehensive report about CD’s placement and about him being adoptable. Her firm recommendation is that adoption is still the best order to secure his placement with his current carers. The Local Authority and the Guardian both adopt Miss Kenley's recommendation. They submit that I should refuse the mother's application.

 

7                     The mother, who, I was told yesterday, was not going to attend the hearing because she was not represented, and told the solicitor for the Local Authority that she was going to apply for an adjournment, did attend, albeit somewhat late. She did not apply for an adjournment. In my judgment she was prepared for the hearing, both in terms of questions from Ms. Kenley and submissions to me. Her case is, as it has been throughout, that CD should not be adopted and that I should give her leave to apply for revocation of the placement order. Her order of preference, if the placement order is revoked, would be first for him to be returned to her, although in fairness to her she realised that this was unlikely, then a special guardianship order to her parents (I remind myself that they withdrew from a kinship assessment in the course of the original care proceedings, and their application for revocation of the placement order was dismissed in 2013), then a special guardianship order to his current carers and, finally, long term foster care. I will return to this shortly.

 

8                     For this hearing I read Ms. Kenley's report dated 16 ^th August, and the Local Authority's and the Guardian's respective position statements. Ms. Kenley gave oral evidence and was cross-examined by all three parties. I heard submissions from all three parties. The oral hearing concluded at lunchtime on 25 ^th August. I took the afternoon to consider my judgment and give it this morning, 26 ^th August.

 

9                     The mother and the maternal grandmother attend court today.

 

Vivienne Kenley's Evidence .

 

10                 Ms. Kenley read a number of documents and reports. She read District Judge John's judgment, and my judgment of July. Her brief was, in effect, to examine whether adoption is still the best order for CD, having regard to all the circumstances of this particular case. The letter of instruction has been approved by me. Ms Kenley dealt with each question at the 'Conclusions' section of her report.

 

11                 She met with the carers three times; the first time before meeting with CD, and twice on the same days she met up with him, when she saw him and them separately as well as together. She considered that the carers were totally committed to keeping CD. Despite all the difficulties in the past year and the escalation of the situation, they have never asked for respite. They have struggled at times with problems without real assistance from the Local Authority and, despite being told in August of last year that their application for adoption has not been approved by the Agency's Decision Maker (“ADM”), did not relinquish their care of CD. Building up a trusting relationship with him was, and is, a struggle, since neither he nor they know where his future lies.

 

12                 Ms Kenley considered that there is clear evidence of attachment behaviour from him to the carers. The carers have been clear that the contact with the birth family had a disruptive effect on CD’s behaviour both at home and at school. He became difficult both before and after visits, so much so that they stopped informing him of an impending visit until the day they actually take him there. In this, too, they have not had assistance from the Local Authority, who did not reduce contact from six times a year, despite the disruption, and despite this number of visits being inconsistent with the plan for adoption.

 

13                 The foster mother said that, in recent months, CD has been returning from contact upset, distressed, hollering and crying. She was concerned about the contact supervisor not managing the endings of contact. The description I give in my previous judgment substantiates this concern.

 

14                 Ms. Kenley was told by the carers that CD’s needs are significant. He can be bright, smart very affectionate, very open, warm, tactile and cute. He has had problems with his sleep, bedwetting and phobias about insects. His current behaviour includes lying and outbursts of verbal and physical aggression to them, his peers and his teachers. This includes biting, kicking, hitting, banging his peers' heads against the wall and urinating on another child. He can be physically threatening to the foster mother; although he is not yet seven he constantly pushes boundaries. They have been told that he is at risk of developing mental health problems. He has been excluded from his mainstream school and placed at the Pupil Referral Unit ("PRU"). This, apparently, devastated his carers, who are struggling hard to get him back into mainstream education. They see a detrimental effect on him at the PRU and are afraid that it may cause him irreversible damage.

 

15                 The couple have told Ms. Kenley that although they are totally committed to keeping CD they are now not sure about adoption. They have recently been told that CD will require the assistance of at least seven different professionals to support him during the next few years. Judging by the Local Authority's record thus far, the couple are not convinced that the help needed will be available post adoption.

 

16                 Ms. Kenley discussed with the couple the advantages and disadvantages of adoption as opposed to long time fostering. She did not discuss a special guardianship order specifically, although I understand that the couple had legal advice in the past, funded by the Local Authority. She left them with information about the difference between a special guardianship order and adoption.

 

17                 In her interactions with CD Ms. Kenley observed that he was attached to his carers and that there was a warm, physical interaction between him and them. He was aware of his birth parents and enjoyed seeing his "other mummy" (his term for his mother) because she bought him sweets, presents and he could play football. He responded that being with the foster carers was "fantastic", this is despite the recent problems and the many boundaries imposed by them which he needs to observe.

 

18                 In her conclusions Ms. Kenley did not doubt that adoption would best meet CD’s needs for his life. Paragraph 88 of her report details the reasons which I summarise:

 

                                                                             (i)             He has lived with his current carers for three years, which is a significant proportion of his life.

 

                                                                           (ii)             He displays very concerning behaviour which, at least in part, must be attributed to his confusion and anxiety over the uncertainty about his future.

 

                                                                         (iii)             His carers, who started as foster carers and, therefore, had a totally different agenda from prospective adopters, were never allowed to give him “their all” in the sense that they were never allowed to tell him that he will stay with them forever. They were not sure how much they can discuss with him and have had little assistance in this respect from the Local Authority. This has created what Ms. Kenley referred to as a wall of silence, which must be very frustrating and very disconcerting for CD. The drift after the ADM not approving the match in the last year has been extremely detrimental to this boy. The delay caused by the legal system did not help either.

 

                                                                         (iv)             The mother's tenacity in trying to disrupt his placement in the sense that first her parents, and later she, made an application to the court to have him returned to the family, as well as her behaviour at contact, with which I dealt in my previous judgment, would be protected by an adoption order.

 

                                                                           (v)             She did not discern anything from her conversations with CD which would suggest to her that he was not adoptable, although she recommends, and the Local Authority accept, an intensive course of help both for CD and the carers to assist the latter in deciding what application they wish to make in respect of him.

 

19                 Incredibly, in my judgment, this boy has had no life story book done with him, although he has been away from his family for three years. He is aware of his birth family and needs help in fully understanding why he is not with them. If his mother could co-operate with a life story book, so much the better.

 

20                 CD needs stability, security and certainty. Miss Kenley’s conclusion was that adoption is the only order which would give him all three. Ms. Kenley has provided in her report a critical awareness programme which needs to be addressed without delay. The Local Authority accepts virtually all of it. It will be outlined in the preamble to my order.

 

21                 Ms. Kenley recognised that her recommendation may be academic in the sense that the carers may decide not to apply for adoption. If that is the case the Local Authority will have to consider the future care plan for this boy. I have indicated that unless the carers put in an application for adoption within the next eight weeks, which will fit in with the work proposed to be done with them and CD, the Local Authority must return to court forthwith and outline the plans for CD. I appreciate that it is likely that they will apply for revocation of a placement order. It is clear to me that unless CD is adopted by these carers, adoption will no longer be the right order for him.

 

22                 Two aspects of the mother's cross-examination of Ms. Kenley struck me immediately. First, her total abrogation of any responsibility for her son's current predicament and, secondly, her ostensible willingness to support his placement, if I decide that he should remain there under a special guardianship, despite the criticism that she has levelled at his carers throughout the placement, and certainly at the hearing before me in July. She was passionate in her delivery, and, I would go so far as saying, as beguiling as ever. So plausible was she in her manner that had I not known this case I might have been led to believe her reconstruction of the history. I am afraid that I did not accept her seemingly enthusiastic claims of support for a special guardianship order to the foster carers at face value.

 

23                 As far as she was concerned, there was nothing wrong with her care of CD when he was removed; I remind myself that he was removed at the end of the proceedings, having been returned to her (by me) after a pre-emptory removal. She had the duration of the proceedings to prove her ability, and indeed that of her family, to parent CD. The mother denied using class A drugs ever, despite all the results of all the hair strand tests, and omitted reference to this in her questions of Ms. Kenley, as if never existed. She blamed the Local Authority for CD’s difficulties, and she blamed the carers for not being able to contain him after three years of caring for him. She could see nothing wrong with her behaviour at contact and attributed CD’s distressed behaviour at separation at the end of contacts solely to his wish to return to her. She thought that the statement: "I'm fighting for you every day" was blown out of proportion and that CD would not understand it as her desire to return him to live with her.

 

24                 The mother's cross-examination was, in my judgment, completely self-centred, seeing everything only from her point of view, and unable to have empathy with CD. She equates his wishes with hers, not understanding that he is in a different place from her.

 

25                 The mother has prepared lengthy written submissions which she read out at speed over some 30 minutes. It was more of the same, criticism of the system, misunderstanding of statements which turned out to be accurate, and constantly emphasising that if CD had not been removed from her he would not have been where he is now in terms of his difficulties.

 

26                 I can understand the mother is concerned about CD’s behaviour and about him being at the PRU. The concern is justified. She asked me where she should look if CD, aged 18, is involved with criminality, whom should she blame? I suggested that in the first instance she reviews the judgments in this case to remind herself of the truth of his history, rather than try and re-write it.

 

Discussion .

 

27                 The report of Ms. Kenley is wide in its ambit and has provided me with significant additional inf ormation about CD and his carers. The only question I need to address in the context of this application is whether there has been such change in circumstances as to consider the likelihood of success of an application to revoke the original placement order. I have already found there has been no change in the circumstances of the mother.

 

28                 Having heard yesterday's evidence I have come to the conclusion that, so far as CD is concerned, there has not been a change in circumstances which would suggest to me that I should move on to consider the second limb of the test. He is still adoptable, adoption is the best order to prioritise his welfare throughout his life, and therefore a placement order which was made as long as 2012 should not be revoked. If I were wrong with my approach to the question of the change of circumstances as examined yesterday and I were to move on to consider the likelihood of success of an application to revoke the placement order, and all the other factors enumerated by the President in the case of Re B-S, I would come to the firm conclusion that if his carers pursue an application for adoption, the likelihood of a successful application for revocation of the placement order would be virtually non-existent.

 

29                 If his carers decide not to apply for adoption, then it is likely that the placement order will be revoked. This will be in different proceedings, which I am satisfied the Local Authority will issue promptly. In my judgment, this mother needs to know that her application in these proceedings has been dismissed and that these proceedings are concluded.

 

30                 So far as contact is concerned, it is going to be reviewed by Ms. Rachel Staff, the independent social worker appointed to deal with all issues relevant to CD’s placement.

 

31                 I anticipate this matter returning to court in about eight weeks by which time I should know whether I will be dealing with an application for adoption or with an application to revoke the placement order. Until then the contact will remain suspended. I am satisfied that it has caused CD problems, although I do not attribute them all to the mother alone. Having his welfare in the forefront of my considerations, I consider the continued suspension justified until the progress of his placement is somewhat clearer.

 

32                 The final issue that merits a mention in my judgment is in respect of the carers' decisions about CD’s future. I want them to know that there is absolutely no pressure on them by this court, and that there must be no pressure on them by anybody else, to apply to adopt CD. Their decision must be theirs alone. I hope the assistance they will be getting in the next few weeks, however late coming, will facilitate the process for them.

 

_________