England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN LEEDS

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

		15 September 2015

Introduction

1. In these proceedings I am concerned for X, a child who is not yet two. He is the child of M and F, who both have parental responsibility for him. M and F have been in a relationship since February 2013. M has two older primary school age children who are in long-term foster care, an adoptive placement never having been identified for them following earlier proceedings.
2. The local authority began care proceedings after X was taken into foster care late last year having been found to have bruising to his face on two separate occasions. X was made subject to an interim care order and has remained in foster care throughout these proceedings. The focus of the case initially was to understand how X had suffered his injuries, both parents having denied causing these, and an expert paediatrician filed a report as to the possible cause. A report was also commissioned from a psychologist in respect of the parents. The matter was set up for a final hearing to take place in the middle of June, which hearing was also going to determine how the injuries were caused. The local authority's plan at the time was for X to be adopted, on the basis it believed one or other of the parents had caused the injuries and that as a result X would not be safe in their care. Early in that hearing however F admitted causing the injuries, in a manner which the expert paediatrician accepted could have caused the injuries. As a result the local authority agreed to look again at whether the parents could care for their son by carrying out a risk assessment. The final hearing therefore had to be adjourned to this week to allow for that assessment to take place.
3. The document setting out the concessions the parents made is detailed at the end of this judgment. In brief, the admissions made by F related to the bruises X had on two dates in 2014. F stated that the first injury was caused by him "tapping" X on the face using three or four fingers. F accepts that the force used was excessive and inappropriate and caused bruising to X who was seven and a half months old at the time. Both episodes of bruising F accepted were non-accidental in nature and have been caused using recklessly excessive force. M accepted that, as the non-perpetrator, she had failed to protect X from further significant harm following the first episode of bruising.
4. In addition to those admissions regarding the injuries, the parents were able to accept other matters relating to harm to X. They accepted that X had been found to have nappy rash so severe that he was bleeding and blistered, which they failed to treat properly. They also accepted that shortly prior to X being removed there was an incident of domestic violence between them, in front of X, in which M received bruising to her face and being struck on her back caused by F.
5. The parents have kept up contact with X during this case, having seen him three times a week, and have attended almost all of those sessions.

The Issues and the Position of the Parties

6. In preparing for this hearing I have read the full bundle of papers provided to me in this matter, together with a statement filed by the mother on the second day of the hearing. The parents did not come to court on the first day of this final hearing, although they knew of the hearing and were expected to be here. They did come on the second day, after their advocates made efforts to chase them, and I was told M had been unwell for reasons related to her pregnancy. I heard evidence in court from two social workers who carried out assessments of the parents and also heard submissions from each advocate. The parents chose not to give evidence as it was all too upsetting for them and no one required them to do so. The guardian's professional view was not challenged by the parents although they do not accept her support for the local authority's plan would achieve the right outcome for X.
7. The first step ordinarily for a judge in a case such as this is to decide if threshold has been established, whether the local authority has crossed the legal hurdle which is required to be proved before orders such as care orders can be made. However, due to the acceptance of the parents at the hearing in June that threshold was indeed met as set out at the end of this judgment, that task is not necessary. It is from that starting point that I move forward to consider where X would best be placed in the future and therefore what orders I should make to achieve that.
8. Looking first at the local authority's position, since the June hearing it has carried out a further parenting and risk assessment which reaches a negative conclusion. The local authority says that the risks that led to X being taken into care remain the same. F is not willing to seek support to manage his emotions when he is feeling highly stressed although it is evident that when he feels under stress it can impact on his behaviour. It is felt the situation is which arose which led to X experiencing injury would therefore be very likely to happen again.
9. In terms of M, the local authority says if X was in her care the reality is she would prioritise her relationship with F over the need to keep X safe, as happened before. In terms of M suggesting she would supervise X with his father, the local authority does not accept this would keep X safe. It says this is a relationship which is volatile and the couple are dependent upon each other. The point is also made that M is pregnant which may well place added stresses on the parents' relationship and their ability to meet the needs of both children.
10. The local authority has looked at the possibility of providing a package of support for X to be placed back in the care of his parents. Whilst the local authority accepts this would be possible it says it would be insufficient to ensure X would not sustain further physical injuries.
11. The social workers who know this couple do not accept they are capable of separating and then maintaining that separation. The assessments which have been carried out reflect M's long term dependence on partners, both for her own benefit and in terms of care of the children, even where those partners have been violent to her. My attention has been drawn to the mother's reaction to the father's admissions in June, to react physically including hitting him, requiring him to leave her home, and then the same evening contacting him to seek a reconciliation. The local authority says that I cannot rely upon the parents to live apart, even for X's sake.
12. Turning to alternative long term options for X, the local authority considered the extended family to see if anyone else could care for X. The only viability assessment they were able to carry out, of a maternal aunt, was negative and other family members confirmed they were not in a position to care. Given the absence of any possible family placement for X, the local authority says his needs would best be met by him being adopted. Although X's older half siblings are in foster care, X has been removed at a much younger age. The local authority would not be supportive of him remaining in long-term foster care, given the inability to guarantee a stable long term placement, ongoing local authority involvement, and it offering a reduced sense of security and identity compared to adoption.
13. The local authority's position is very much supported by the guardian. She too is of the view that risks would remain of future physical harm given F's approach. He was clear with her that he did not cause the injuries because he was under stress and that he does not see the need for any assistance with this. The guardian points out that if that is correct and injuries were only caused when he was trying to soothe X, it is extremely worrying that he was unable to judge the level of force which caused bruising to X's face. Her view is that there is no package of support which could ensure X's safety in his father's care in the future.
14. In respect of M, the guardian endorses the view of the risk assessment that she would not be able to protect her children if living with F. The guardian agrees with the assessment that she is very much dependent on him, noting that after the last hearing in the course of one evening she decided to separate from him but then reconciled. The guardian would doubt her ability to sustain a separation now she has proposed this or F's ability to stay away. She notes that although the mother gave her solicitor instructions last Thursday that she was going to separate from F it did not seem at court as if they had in fact yet achieved that.
15. The guardian in her report notes that if X were at home with his parents the local authority would have to rely on them to be honest and open, whereas the evidence to date suggests an inability to do this. The guardian looked at support available in the parent's families but noted none of those family members are offering to care for X full-time and the support they could in fact offer would not be sufficient to keep X safe. She did not feel that support would be sufficient either if M was caring alone.
16. Looking at the case of the parents, M eventually filed a statement on the second day of this hearing. I also heard of her wishes very eloquently through Mr Orbaum. M said she had thought she could get past the fact that F had caused X his injuries but now she realises she cannot. In her statement she says that she will do anything to have X back in her care. She says that F has agreed to leave the house and for them to separate. She knows people doubt that they will be able to keep apart but she says she will. This is despite the fact that she accepts when her older children were removed from her care her partner at the time was doing the majority of the care of them and also that F has tended to do most in contact with X, although she says this is just because X and his father have a close relationship.
17. M accepts she would find it difficult to care for X and a new baby on her own but said she would manage with support from her mother and sister as well as from F's family who will support her even if they separate. She says she would be prepared to attend a parenting course if it was at the right level for her needs and would be happy to go back to the a project she had attended before or attend the Freedom Program, although would find it hard to engage in any group activity.
18. In terms of the relationship between the parents, M acknowledges there has been some violence. This includes the incident in late 2014, the incident outside a contact centre in the summer of 2015, and a time after X was in foster care when they were arguing and F pushed the side of her stomach with his feet to push her away from him. She also acknowledges an occasion when she slammed the door in an argument and it came off its hinges.
19. F has not filed a statement but I heard from Mr Swiffen what he wanted to happen. In essence, he supports M. He was not suggesting that he himself could care for X. He confirmed that their plan was to separate and he wanted X placed with his mother. He too is clear that he loves his son and just wants him to stay living in his family.

The legal context

20. I now turn to consider what orders if any are in the best interests of X. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are "very extreme", and should only be made when "necessary" for the protection of the child's interests, "when nothing else will do". The court "must never lose sight of the fact that (the child's) interests include being brought up by her natural family, ideally her parents, or at least one of them" and adoption "should only be contemplated as a last resort".
21. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said : "Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
22. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for this child/children, taking into account the assistance and support which the authorities or others would offer.
23. In reaching my decision I have taken into account that X's welfare throughout his life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and the children as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the children's rights and be proportionate.
24. A placement order is sought by the local authority in respect of X. The court cannot make a placement order unless the parent has consented or the court is satisfied that the parents' consent should be dispensed with. A court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" consent to be dispensed with. In that context I am conscious that "requires" means what is demanded rather than what is merely optional.
25. I have to ask myself , whether X should be rehabilitated to the mother's care, with or without statutory orders being made, or should he be adopted. I have to balance the pros and cons of each of the options being presented to me together with any other options which seem worthy of consideration. In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002 and propose to consider the evidence in the light of those factors.

My decision

26. This is a case which to a great extent can be boiled down to the risk there might be if X were placed back with his parents and their ability to meet his needs. There are of course other factors I need to consider but they carry less weight in this scenario.
27. I am required to look at any harm within the meaning of the Children Act 1989 which X has suffered or is at risk of suffering. I acknowledge that in the first months of X's life his parents were managing to meet his needs, as shown in the social work report just two months after he was born, even though the local authority knew that there were issues which might arise. However X obviously has suffered harm as accepted by the parents back at the June hearing. That harm has included non-accidental bruising on two occasions, extremely severe nappy rash, and being present during violent incidents between his parents. The whole point of the assessment which was carried out by the local authority between June and now was to see if steps could be taken to reduce the risk of such harm being experienced again.
28. I read that risk assessment by SW1 very carefully and was impressed by it. She met a number of times with the parents, both separately and together, as well as meeting close family members to look at what support they could offer. She took into account information provided by the parents to different workers in terms of the injuries and the relationship between the parents, as well as looking at the psychological assessments of the parents. She addresses the injuries to X and also aggression and violence in the relationship between the parents. She acknowledges the difficulty in knowing whether X's injuries resulted from a lack of inhibition F's part or anger. She noted that F indicated that he was feeling stressed around the time that the injuries were caused X, the mother also recognising this, but that he minimised that stress. He said it would be a waste of time going to the GP to seek support. SW1 said in that situation there was a high risk that when he experienced the same level of stress in the future he may respond in a similar way.
29. In terms of the mother's proposal that she would not allow the father to be left on his own with X or the unborn child, she noted the pressures that would put on the mother, who I remind myself has a learning disability and has had two previous children removed from her care. SW1, and indeed SW2 before her, noted that the mother had allowed her previous partner, a violent man, to do a lot of the care of her older children and it seemed to allow F to carry out a lot of the care of X in contact.
30. The guardian in her report addresses the fact that X could have been injured because his father was stressed or because he did not realise what he was doing could injure his son. She said : "F has told me very clearly that he did not harm X because he was under any stress. He has said that if professionals assist him he will attend counselling but does not appear to consider that he has a real need for this. He is adamant that he was trying to help soothe X who was teething at the time and distressed. If F is correct in his assertion that he did not cause the injuries because of the stress he was under and that he did not mean to harm X, I find it extremely worrying that he was unable to judge a substantial level of force that would cause bruising to his child's face. Although there are positive reports of F's interactions with X, this would suggest a very poor level of attunement from F to his son and I do not consider that any package of support could ensure X's safety in his father's care in the future." [E236]
31. I acknowledge that it must have been very difficult for F to make the admissions he has. It is very obvious that he loves his son; the pain these admissions caused was very clear at the June hearing and again today. Equally agreeing to separate from his partner would have been very difficult for him. However admitting to the harm is not enough. Without change the risk of harm will always be there and that is the context in which I have to make my decision.
32. I am satisfied that were X placed again in the care of his parents he would be at risk of suffering the same kind of harm he has suffered already. Without having heard evidence from the parents I cannot be certain why F harmed his son. I think it is most likely that X suffered his injuries due to the stress his parents were under, particularly his father, but I cannot be sure. The two incidents which the father has admitted happened at times when the parents and their relationship was under stress, a point highlighted by SW2 [E138]. I also note the father told the psychologist the domestic violence in their relationship happened because of the stress they were under from the local authority being involved. I am satisfied there have been several incidents of domestic abuse between the parents, two in late 2014 and the others described in the mother's statements, and at least two happened because one parent thought the other was going to leave. There was also the incident after contact in the summer when the parents were seen to be arguing after a contact session; two women in the street told them to stop arguing and reported to the social worker that the father had grabbed the mother's arm aggressively and pushed her. It seems very likely to me that both parents struggle to deal with stress and a physical response is likely in such situations. I remind myself the mother and her siblings had been aggressive to each other on a number of occasions which resulted in police callouts.
33. I am afraid M's proposal to workers that she would supervise her partner all the time with the children is simply unrealistic, even if I thought she really meant it. I am also of the view the mother could not care for X on her own, given what I know historically about the situation with his older half-siblings. As the guardian says in her report, M is at best naive about how difficult it would be to ensure the children were never alone with their father. There would be many challenges in parenting two small children and M I do not think is able to achieve this without significant support from a partner. The idea of relying on her extended family to assist is also unrealistic. The mother has also recently fallen out with her sister, by no means the first time this has happened.
34. At the present time the parents remain in a relationship although they have declared their intention to separate. I would have real doubts about their ability to maintain a separation and simply saying it will happen now is as the guardian said 'too little, too late'. If I look at the risk assessment carried out since the hearing in June, it is clear how strongly the mother feels about the father and how much she needs him. She talks of worshipping the ground he walks on, that she does not like being lonely, and at nights would struggle if she was on her own. I do not blame her at all, as it is clear from everything I have read she is a very vulnerable woman who has got a lot from this relationship with F. Mr Orbaum talked about how hard it had been for her to get to the point of saying she would separate and I do not criticise her for that.
35. I also do not think I could rely on the parents to be honest if they were facing difficulties. Obviously F was not honest about how X had suffered his injuries. When asked why he had said at Core Group meetings that there were no issues at home, he said he did not want people to think he could not cope or was a failure due to him feeling stressed.
36. Very sadly I think the risks to X were he to return to the care of either his parents together or to his mother alone are simply too great. There is no support package, professional or family, which would keep him safe twenty four hours a day or ensure all his needs would be met. I have to consider then the only other realistic option for X which is adoption. I acknowledge placement of a child for adoption means him having to make a move from a foster placement, but that would be required for X in any event. Adopters are well trained to deal with issues that may arise and X's good experiences in foster care will hopefully assist him with the move. An adoptive placement would keep X safe and give him the security of a family he knows is his forever. His physical, emotional and educational needs would be met by his adopters.
37. Obviously being adopted means that X ceases to be a member of his original family and will lose a relationship not just with his parents but the potential of a relationship with extended family and his half-siblings. The contact which is proposed after any adoption is just for indirect contact. That will give X a sense of the reality of his situation and assist with his identity but of course it in no way gives him a meaningful relationship with the people who have to date been his family. I acknowledge the loss that that means but I have to balance that against the risks to X were he with his parents. The reality is here the most important thing for X is that he is safe.
38. During the balancing exercise then that I must carry out, the return of X to the care of his mother would put him at a real risk of being harmed again, and there is no adequate protection that could be afforded to him, even with a support package. The advantages of such a placement are that he would be being brought up within his birth family, with a real knowledge of his origins. If he is placed for adoption he will be safe and secure, with all his needs being met, but loses his birth family links. The only possible outcome having considered those options is that he should be adopted. I would not be attracted, if anyone had argued it, by long-term foster care given X's very young age. Long-term care would not give him the security he needs, would risk moves of placement, and would mean he remains a looked after child with all the encumbrances that brings.
39. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of X being returned safely to his mother's care, and that his needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority's final care plan for X is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in his best welfare interests. I therefore make a care order. Having concluded that X's welfare requires me to dispense with the parents' consent to placing him for adoption, the word "require" here having the Strasbourg meaning of necessary, "the connotation of the imperative", I also make a placement order authorising the local authority to place X for adoption.
40. There is one further direction I wish to make. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. This judgment, in setting out what I have read and heard in court, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing X up. I propose therefore to make a direction that this judgment must be released by the Local Authority to X's adopters so that it is available to him in future life.
41. I also make an order for public funding assessment for all the respondents in this matter and I reserve any future applications regarding X to myself.
AGREED THRESHOLD

The parties agree that the threshold criteria pursuant to s.31(2) of the Children Act 1989 are satisfied in that X has suffered and is likely to suffer significant harm as a result of the care given to him by his parents, that care not being what it would be reasonable to expect.

The agreed harm is physical harm, neglect and corresponding emotional harm.

42. X has presented with bruising on two dates in 2014. Both episodes of bruising are non-accidental in nature and have been caused using recklessly excessive force.
43. The perpetrator of the injuries detailed at (1) was F who has stated that the first injury was caused by him "tapping" X on the face using three or four fingers. F accepts that the force used was excessive and inappropriate and caused bruising to X who was very young at the time.
44. A non-perpetrator parent failed to protect X from further significant harm following the first episode of bruising in 2014.
45. X was found to have nappy rash so severe that he was bleeding and blistered. The parents failed to treat this properly and therefore did not meet his basic needs.
46. On a date in 2014, there was an incident of domestic violence between M and F. M received bruising to her face and being struck on her back. These were inflicted by F. The incident took place in front of X.
47. F has little, if any, previous experience of parenting a child.