England and Wales Family Court Decisions (other Judges)

In the Family Court at Reading

		21st October 2015 To 22nd October 2015

Introduction

I am dealing with applications for care and placement orders in respect of K, aged 16 months. This is a very sad and slightly unusual case. What is unusual is that in May of this year previous public law proceedings involving this child were concluded. A little over 4 weeks after that hearing, the application for a care order which I am determining was put into the court. I will go into the chronology of events in a bit more detail later in the background and evidential summary in this judgement. However, what is particularly sad about this case is that it is now accepted by both parents that they lied to the court at the final hearing in May 2015. I am very clear that I am not acting as an appellate court in relation to the decision taken by the Justices at the previous hearing in May. Whilst any appeal from their decision would lie to a Circuit Judge, there is no such appeal in this case and I am determining the issues on the current proceedings in light of what is now known about the parent's circumstances, rather than revisiting their decision. I will address the conclusions they reached on the evidence in their Reasons of 8^th May 2015, but will be careful to do so in light of the findings I make about what is now the position.

I have read all of the evidence contained in the Court Bundles and handed in through the course of this hearing, and heard from various witnesses.

Background and evidential summary

The family in this case have been known to social care for decades, at least since 1992. The involvement relates to long-standing concerns about neglect, inconsistent parenting, exposure to domestic violence and paternal misuse of alcohol.

K was made subject to a Child Protection Plan in June 2014 under the category of emotional abuse and neglect. His mother is MH and his father is JO and they were married for over twenty years. They had five children, the three youngest of which (including K) were the subject of care proceedings which began in June 2013 and which concluded in May 2015 with a 12 month Supervision Order. The two other siblings were made subject to care orders and they were placed in the care of their older sister. At the time of the final hearing in May this year, MH's evidence was that she had not been in a relationship with JO since July 2014 and she appeared to be showing insight into the effect that the long history of domestic violence between the couple had on the children. She had gone into a refuge in August 2014 and was very clear that she did not want a relationship with JO. On the last day of the final hearing, the parents signed an agreement to the effect that they would refrain from being in a relationship and that M would not allow F into the family home and would inform the LA of any face to face contact and change in the nature of their relationship.

On 3^rd June 2015 the Local Authority were made aware that MH was pregnant (11 weeks at that stage). It is this which precipitated the current care application. MH accepts that JO is the father of this child but denies that they continue to be in a relationship.

Also in early June 2015, the Local Authority received information from SO that JO had visited the family home on 5^th June 2015 and consumed a bottle of vodka whilst there. It was after this that the social worker visited MH on 9^th June 2015 and MH confirmed that she was pregnant and that JO was the father, though she denied that they were in a relationship or that she had allowed him into the property on 5^th June 2015. During the visit the social worker called JO who confirmed that he had visited the property but denied that he had drunk alcohol whilst there. He said that he had consumed alcohol on the way there.

As a result of this, the Local Authority asked MH if she would agree to K staying with SO whilst the matter was taken to Court. MH refused and made threats to kill SO and to harm herself. The Local Authority became concerned about her state of mind as a result of these comments, and about the risks that allowing JO into the property may pose to K. MH agreed to staying with her cousin, FF, with K. FF and her partner signed a written agreement about this but MH refused.

In addition to the professional evidence contained in the current court bundle and the core bundle of the previous proceedings, there have been previous assessments, though no new assessments have been felt necessary by the court for the determination of the issues in the current proceedings. Dr McClintock completed psychiatric assessments of both parents in September 2014 (E9 and E91 Core Bundle). His conclusions were that JO's use of alcohol was deeply ingrained behaviour, he had poor coping mechanisms to deal with life's stress without recourse to alcohol and he had no previous experience of treatment. He was certain that JO would not be able to address his alcohol addiction within 26 weeks. In respect of MH, he considered that her own experiences of being parented had impacted upon her and that she presented as also having limited coping mechanisms and as overwhelmed at the prospect of caring for all three children on her own. She was also ambivalent about separating from JO. It was his opinion that MH did not have a formal mental illness but presented as an anxious woman who lacks confidence and self-esteem. He also considered that she needed an urgent assessment of her cognitive functioning.

That cognitive functioning assessment was undertaken by Mr Furlong, Clinical Pyschologist (E34 Core Bundle). He concluded that she had capacity to instruct a solicitor but had a low level with regard to her intellectual functioning and a full scale IQ score of 73 placing her at the 4^th percentile.

A PAMS/Parenting Assessment of MH was undertaken (C322 of the Core Bundle). That assessment, dated 5^th March 2015, concluded that she could cope with no more than one child and would need considerable support.

On 11^th June 2015 the Court granted an Interim Care Order in respect of K and he was placed in the care of his older sister, SO. However, on 22^nd July SO notified the Local Authority that she was not able to care for K. She and her partner have a son of their own as well as caring for K and his two older siblings.

K was placed with short-term foster carers on 22^nd July 2015. He remains in this placement and has contact twice a week with MH. JO's attendance at contact once each fortnight has been inconsistent. K also has contact with his older siblings once each week.

There has been one reported incident of JO attending MH's home drunk over the weekend of 25^th to 26^th July 2015. This incident led to MH applying for a Non-Molestation Order against JO.

MH has also, in the course of these proceedings, engaged with the Parents as First Teachers Programme (PAFT). This service had been identified in the parenting assessment conducted in March this year as potentially useful to her. She has also engaged with the Freedom Project and Number 22 (a counselling service) since July this year.

In terms of potential kinship carers, MH's cousin TB was the subject of a viability assessment in September this year. That assessment was negative. On 1^st September at the IRH of this case before HHJ McIntyre, it was indicated that there was a change of position with regard to SO in relation to her willingness to care for K long term. On 4^th September SO provided written confirmation that she wished to care for K. The Local Authority are concerned that she has been pressurised in to this position and overall do not support K being placed in her care. The Guardian has also told me in her evidence in the course of this hearing that she has spoken to SO who is now saying that she can care for K. She was very clear that she thought SO was in a position of divided loyalties and that, in her assessment SO was probably at the limit of her parenting capacity in meeting the needs of the children already in her care.

Threshold

Final threshold in this case is at A11-A12 of the Bundle. The relevant date for the purposes of these proceedings is 11^th June 2015. The final threshold allegations relate to emotional harm and neglect by virtue of the parents' domestic violence and JO's alcohol misuse and the parents' dishonesty with professionals. It also alleges that K is at risk of physical and emotional harm and neglect due to MH's vulnerable mental health and inability to parent safely and adequately. Whilst the parents do not dispute that there has been historic domestic violence and that previous findings were made against them in the previous proceedings (albeit on the basis of an agreed composite threshold), they dispute that they have continued to be in a relationship and there is any risk of harm to K in the future. They have both said that they accept that threshold is crossed in this case, but dispute the assessment of future risk contended by the Local Authority and the Guardian. They also, despite having said that threshold is crossed, dispute some of the factual basis upon which threshold is drafted by the Local Authority. The Local Authority does therefore seek some specific findings against them.

Parties' Positions

The Local Authority seeks a final care order with a care plan of adoption for K and therefore also seeks a placement order.

MH seeks the return of K to her care, but with support from the Local Authority. JO supports K being returned to his mother's care and does not put himself forward to care for K. In the alternative, both ask that I consider the placement of K with SO and his siblings.

The Guardian supports the Local Authority's applications for care and placement orders and has filed her final reports in relation to both applications confirming this and her conclusions as to why these orders are in K's best interests. She does raise one issue in relation to post adoption contact in that she would like the Local Authority to actively investigate the possibility of direct sibling contact with prospective adopters. The Local Authority has indicated that they are willing to consider this.

Relevant legal considerations

In addition to considering section 31 (2) of the Children Act 1989 with regard to threshold, and the welfare checklists contained in section1 of the Children Act 1989 and section 1 of the Adoption & Children Act 2002, I have also had regard to the cases of Re S-B and Re R, Re C and B, YC v UK and Re B – in particular: Re C and B [2001] 1 FLR 611, para 34: " Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

YC v United Kingdom (2012) 55 EHRR 967, para 134: "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."

B (A Child) [2013] UKSC 33: [para77]: "It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests.

[para 198]: "Nevertheless, it is quite clear that 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. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions"

Re R (A Child) [2014] EWCA Civ 1625, per The President:

Para 44: I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. 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."

. I have also been mindful of the recent case of Re K as to the burden and standard of proof being upon the Local Authority on balance of probabilities to prove any facts which they assert. I have also reminded myself of the provisions of R v Lucas with regard to lies told by the parents in this case, essentially to the effect that there can be many reasons for such lies and that lying about some aspects does not necessarily mean that they have lied about everything.

Threshold Findings

The first substantive relates to the parents relationship and whether this has continued in some form. They both accept that there was one sexual encounter which led to the conception of MH's current baby in March this year. They both accept that they did not disclose this encounter at the final hearing in relation to the previous proceedings in May this year. They also do not dispute that the first which social services knew about the pregnancy was in early June when they were alerted by health care professionals rather than either parent. MH accepts that she knew she was pregnant in April and did not disclose the fact of her pregnancy because she was scared of the consequences. The consequences she said she feared were the removal of K from her care. She also may perhaps have hoped that the pregnancy would not continue in some form, a perhaps understandable wish to bury her head in the sand about it in light of her vulnerability and awareness that she should not have met up with JO as she did.

She gave remarkably little information about how she came to meet up with him in March before giving evidence in the course of this hearing. Even then, the little that she told me was that K was being cared for by her cousin, FF, because she was ill. She told me when asked that she thought she met up with him in town "and because of all the worry and court and stuff we met up to have a drink and things happened from there". What is particularly troubling to me about her own description of how they came to meet is that she seems to have naturally gravitated towards JO when she was physically and mentally low. Alcohol was also involved, another worrying indication given JO's issues with alcohol. JO did not dispute her version of their encounter in March.

In addition to the admitted March encounter, both parents also accept that they met in some form on 5^th June 2015 when JO came to the family home (though they only accept that he came to the garden gate, not that he actually went into the house). JO accepts that he had consumed a bottle of vodka on his way to the house on that occasion. On 9^th June 2015 the social worker spoke to MH at her home about the 5^th June incident. During the visit, the social worker rang JO and gained his version of events. In the course of that call, JO apparently told the social worker that he had been invited to come and have a talk. He said that he had drunk alcohol on the way there and that he went into the house. The social worker found him believable. In relation to this, I have also seen the social worker's own notes made shortly after the visit of that telephone call. JO told me in his evidence that he accepted that the phone call took place but he did not accept that the contents of the call had been accurately recorded and recalled by the social worker. The notes from CO are very brief about what he told her on 9^th June 2015. I am not persuaded that he did say he went into the house on that occasion, though frankly it seems to me to matter very little whether he went in or not. I will return to this later in this judgement.

The parents also accept that JO came to the family property over the weekend of 25^th and 26^th July 2015. It is not disputed that JO was drunk when he attended at the family home, but again they dispute that he came into the actual house.

It is recorded in the contact notes for contact on 16^th June 2015 that MH told the contact worker that she and JO had been seeing each other at weekends when S her son was not in the family home. MH denied saying this but accepted that the rest of the record about her comments was accurate. I am afraid that she was not very credible about this denial. The contact worker seems to have accurately recorded significant portions of the conversation so it is a little perplexing that the only parts which MH disputes are the ones which harm her case. In other words, the only parts that she takes issue with are the parts in which she is recorded as revealing more extensive contact with JO than she now accepts. Both parents also dispute the accuracy of the social worker's notes and recollection of the telephone conversation she had with JO on 9^th June 2015, in the presence of MH, about his visit to the house on 5^th June. Looking at the evidence as a whole, I am satisfied on balance of probabilities that the parents in this case have had more contact and sustained more of a relationship than anyone envisaged would be the case after the final hearing in May 2015, though as I have said I am not necessarily persuaded that JO went into the house on 5^th June. It was also submitted on behalf of the parents that the evidence recording what MH said about meeting up with JO at weekends was ambiguous and could simply refer to her meeting him in town. Whilst I take the point about the ambiguity, again to some extent whether they met at the property (inside or out) or met up in town, is not really the issue. I simply did not find the parents' evidence credible about their only having met without professionals knowledge in March and again on 5^th June. I am therefore satisfied that they did see each other on more occasions than those two accepted ones and have concealed the contact from professionals and the court, deliberately in relation to the final hearing in May.

In relation to whether or not they can remain separate in the future, Ms Myerscough for the Guardian described MH as passionate in her evidence to that May hearing about her desire to remain separate from JO. I have no doubt that perhaps at the time MH said it, she may really have meant it - just as the Guardian notes may be the case in this hearing. However, her ability to actually remain separate from JO when she is vulnerable seems highly unlikely. I conclude this because she seems to have turned to JO on at least two occasions on her own and JO's own evidence (in March and June and may well have done so on more occasions given my findings about her admissions to the contact worker on 16^th June. In relation to whether or not JO has been into the house itself when they have had contact, it is splitting hairs to argue about whether JO went into the house or went to the back gate of the property. As Ms Myerscough submitted, he should not have been at the house at all and it seems clear to me that both the parents knew this.

It seems clear to me that the risk of potential significant harm to K arises from domestic violence between the parents and whether they are in the house or outside of it, I am satisfied that that risk potentially remains. What is different is whether K is potentially directly present when domestic violence may occur, but given what we know about the emotional impact of domestic violence upon children whether or not they directly witness it, that is a less significant distinction I find. In fact, as seemed clear from JO's evidence to me, what really seemed to be going on if he only went to the back gate was an attempt to circumvent the detail of the provisions of the written agreement about the couple having direct contact and his not going to the house. Given the lack of honesty with professionals leading up to the 9^th June 2015 disclosures, it seems likely to me that the couple were intent upon concealing their ongoing relationship. The disclosures of MH to the contact worker on 16^th June 2015 also seem to fit with the likelihood that the couple were seeing each other willingly on more than just the admitted occasion in March and June as I have said. I have taken on board the point that what was recorded doesn't actually say that JO was going to the house and it does seem more likely that the couple were in fact on occasion bumping into each other in town for some of these weekends. It is also not disputed by either parent that JO attended the family home drunk on 27^th July 2015 and as a result of his actions (knocking on the door asking to speak to MH) the Police were called. It therefore seems to me that they remain simply enmeshed and it may well be that this arises from their over twenty year relationship as Ms Collinson submitted on behalf of JO. However, it seems equally clear that they were not as able to maintain separation as the Justices believed that they were in May, based largely on the lies which the parents told them, and the subsequent events of early June and late July simply reinforce how far they still have to go to live truly separate lives.

I remain unclear as to the extent to which JO has successfully addressed his issues with alcohol. The limited evidence I do have is a short letter from Smart confirming his engagement with them but the information in that letter about his drinking clearly comes from his own self-reporting to them. On his own evidence to me in the course of this hearing he admitted consuming two pints of lager and a quart bottle of vodka before the incident on 5^th June, and both parents say that alcohol was consumed prior to their conception of MH's current baby. There is also the evidence of the visit on 27^th July 2015 when he accepts he was drunk and that clearly affected his decision making as it resulted in his knocking on the front door when he should not have been at the house at all. He also accepts in his statement at C93 that he still has to address his drinking and the previous evidence of Dr McClintock indicated the extremely deepseated nature of his problem and the difficulties he would face in tackling it (E13 and E27). I also have the evidence of the Guardian about his smelling strongly of alcohol at court on 1^st September. I know he disputes this but I found the Guardian to be more credible about this. His explanation was that he smelt because he had been working though I cannot reconcile that with the fact that the Guardian believed he smelt of alcohol rather than just smelt. On balance of probabilities it seems clear to me that alcohol does remain a significant risk factor in relation to JO in this case.

In terms of MH's parenting capacity, there is a dispute about the extent to which she has addressed the earlier concerns with the work she has undertaken with PAFT. Concerns remained about her parenting capacity in May and these are noted by the Justices in their Reasons of 8^th May. On balance, they concluded that "There are concerns about mother's ability to consistently parent K to a good enough standard. Mother has yet to complete the parenting and therapeutic work required and we concur with the professionals that the risk of significant harm is still present. However, professionals accept that if Mother maintains her separation from Father, undertakes to fully engage with therapy, freedom project and parenting courses, she could provide good enough parenting for K" (B41) On the limited contact notes which I have seen, it seems that there are still issues about her ability to consistently parent K to a good enough standard. It is true that there are lots of positives recorded. However, it is concerning that there are still negatives in relation to basic care still being recorded in September this year (such as changing his nappy at an appropriate time and responding to his emotional needs even when MH is herself upset or under strain). And that these negatives occur in the context of an intensively supported two hour contact session after coaching from PAFT is doubly worrying.

As the Guardian said, it is not merely the risk of future harm allied to the concerns about her parenting in this case. It is inextricably linked to the concerns about her in relation to her ability to act protectively in relation to domestic violence. This is directly linked to her ability, or not, to separate from JO permanently. I accept the evidence of the Guardian that the concerns together give rise to a very real likelihood of risk of future emotional harm to K if he were to be returned to his mother's care. Despite considerable support and engagement with counselling and the Freedom Project to try to tackle these concerns, MH has been unable to maintain a safe distance from JO and remains vulnerable to gravitating back to him in future, I find.

I find that the threshold criteria as set out at A11 to A12 are met on balance of probability in this case.

Options in this case and analysis of those options

There are three options put before me in this case. Option one is for K to be returned to the care of his mother. Option two is for K to be cared for by SO. Option three is for K to be cared for outside of his family by way of an adoptive placement.

Given my findings in relation to the disputed aspects of threshold and the facts upon which the local authority rely, I cannot conclude that returning K to the care of his mother is a realistic option. The combination of risks in this case which I have found to exist force me to conclude that there are no steps which would safely ameliorate these. The couple appear to remain enmeshed with each other to such an extent that I have found there to be a high likelihood of their remaining in some form of relationship. That inevitably brings with it the risk of further domestic violence, despite all of the work which MH has clearly undertaken with various projects and the counselling service to try to understand her vulnerabilities and to be able to protect herself. As she said to me in the course of her evidence, she finds counselling very upsetting. Whilst she said it was good to talk to someone else sometimes, it did seem that she was struggling to get the full benefit of counselling and the therapeutic work which was correctly identified by the Justices as necessary, and is therefore a long way from showing any appreciable positive impact. Her parenting has also not improved significantly since May when concerns were rightly found by the Justices to still exist about it and, while I note her learning disability will make it harder for her to learn new skills and that PAFT is tailored to her needs in this regard, it is disappointing that she is still recorded as putting her emotional needs before K's needs in contact. Both she and JO have put their emotional needs first in remaining in contact as I have found. They have both therefore failed to prioritise K's needs.

I am acutely aware of what the case law says, quite rightly, about adoption being a last resort. I have earlier noted the relevant cases in this regard. I have considered carefully whether SO would be a suitable alternative kinship carer for K at this point. She has apparently indicated her willingness to be considered as such, having withdrawn as such earlier in these proceedings. I am concerned that she may lack a real commitment to care for K and concur with the Guardian's analysis that she probably has divided loyalties. Her concerns expressed to the social worker as her reasons for earlier withdrawal and what she said to the Guardian are very relevant and I do find that she would probably be unable to adequately prioritise the needs of K when caring for his siblings and her own son as she herself fears. Provision was also made in the last case management order for her to make any application if she wished to be considered and she has not done so. She is not therefore a realistic option in this case.

K needs stability and permanency and needs it in a timescale which does not allow for further time to see if MH can address her parenting deficiencies, let alone her lack of insight into her vulnerabilities concerning her relationship with JO. He has already endured many months of uncertainty and instability since his birth last year. Sadly, I must conclude that adoption is the only realistic option which remains in this case.

Conclusions

In light of my findings above, I will grant a care order and endorse the care plan for adoption. I am also satisfied that his welfare therefore demands that I dispense with the consent of his parents to the making of the placement order and will grant that order. I share the Guardian's concerns about the need to try to locate prospective adopters willing to consider direct sibling contact but am reassured by the Local Authority indication that this will be pursued.

Finally, I said that this was a very sad case. What makes this particularly sad is that the parents are really the authors of their misfortune by lying about their relationship and concealing key details such as their encounter in March and MH's pregnancy from the court and professionals. As Ms Myerscough for the Guardian submitted, the decision in May was swayed by the clear view then that they had separated and would not reconcile. What has happened since then with JO going to the house in June and July and their probably meeting more frequently that just on those two occasions simply reinforces how far they both have to go to separate from each other. The decision in May was a finely balanced one and the balance is now in favour of ensuring K's stability and permanency in light of what we know now to be the true nature of the parent's relationship, coupled with the remaining risks which that poses and the remaining concerns about MH's capacity to parent to a good enough standard.