England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT CROYDON

 

Case No:  DF13C00115

 

Courtroom No.10

The Law Courts

Altyre Road

Croydon

Surrey

CR9 5AB

 

 

Wednesday, 28^th January 2015

 

Before:

HER HONOUR JUDGE DOWNEY

 

 

B E T W E E N: 

 

 

LONDON BOROUGH OF BROMLEY

 

and

 

 

MR & OTHERS

 

 

 

 

Transcript from a recording by Ubiqus

61 Southwark Street, London SE1 0HL

Tel: 020 7269 0370

 

 

 

 

MR A BERBOTTO appeared on behalf of the Claimant

MS S BRANSON appeared on behalf of the Respondent Mother

MR A ELGADHY appeared on behalf of the Respondent Father

MR A JOPLING appeared on behalf of the Children’s Guardian

 

 

 

 

 

JUDGMENT

(Approved)

HHJ DOWNEY:

 

1.                  This is an application for a final care order and placement order in relation to D, who was born on 9 October 2013, so she is now 15 months old.  The applicant is the London Borough of Bromley.  The allocated social worker is Mrs Race and the Local Authority have been represented by Mr Berbotto.  The mother is M, who was born on 15 March 1984, so she is now 30 years old.  She was represented by Ms Branson.  The father is V.  DNA tests proved him to be the father on 21 May 2014.  He was born on 10 December 1963 and is currently in Her Majesty’s Prison at High Down due to a burglary conviction.  I understand he is due for release in July 2015.  He has never met his child but was joined to these proceedings in July 2014.  He was represented by Mr Elgadhy.  The guardian is Ms Claire Beckingham and she was represented by Mr Jopling.

2.                  Care proceedings were issued by the Local Authority on 24 October 2013.  The mother and child had already been placed in a residential unit at Jamma Umoja on 21 October.  The mother was then placed in a specialist drugs and alcohol residential unit at Phoenix Futures.

3.                  An interim care order was first granted on 7 November 2013 and has been in place ever since.  D was with her mother up until 22 August 2014.  She was then in foster care for nearly three weeks, then back with her mother in a residential unit until 2 October, when she was placed back with foster carers and she has been with those carers ever since.

4.                  The Local Authority say that Mother cannot safely care for D, and they now seek a final care order on the basis of a care plan for adoption, and they issued a placement order application on 10 December 2014.

5.                  Mother opposes the final care order and the placement order and seeks one last chance to care for her child.  Father acknowledges, to his credit, that, given his current incarceration, he cannot himself care for D and does not oppose nor consent to the Local Authority’s substantive applications for care orders and placement orders.  He does however seek parental responsibility and seeks a one‑off contact, as recommended by the children’s guardian and now supported by the Local Authority.  Mother opposes that contact and Father having parental responsibility.

6.                  The children’s guardian supports the Local Authority’s application for a placement order and a care order and, in relation to father, while she supports the contact, as I have said, she does not support him being granted parental responsibility.

7.                  For the purposes of this hearing, the case was listed for five days starting on Monday, 26 January, but, on that day, the parties agreed the time estimate should be reduced to two days.  I read two bundles, including extensive expert assessment of the mother by the Jamma Umoja and Phoenix Futures, detailed social work statements, including the final social work statement and care plan.  I also read Mother’s statement dated 6 January 2014 and an unsigned but, I understand, approved statement dated 27 January 2015.  I read various toxicology reports, including a final clarification report dated 23 January 2015.  I read the expert assessment of Father by Dr Castle, dated 25 October 2014.  I read the guardian’s two reports dated 6 November 2013 and 19 January 2015.  I heard live evidence from the social worker, Mrs Race, and the children’s guardian today.

8.                  Mother attended on day one and requested an adjournment to today to enable her to file a statement and respond to the latest evidence filed.  She had previously failed to attend appointments with her solicitor.  I understand she did cooperate with her counsel and filed and approved the statement that I have read but she did not attend court today and no one has been able to make any contact with her.  I have proceeded with this case, notwithstanding her absence, as my view is that D’s welfare required me to do so.

9.                  The issues I have had to decide today have been limited.  Mother conceded threshold in her response which is in the bundle at A9 to A12, and I find that the threshold criteria are met on the basis of the concessions she made and the document at A(ii)(1-3) should be attached to the order I make.  The live issues are whether D should be returned to Mother’s care, whether I should approve the care plan, whether adoption is required, and whether I should then dispense with Mother’s consent to that adoption.

10.              The background to this case is, by any standards, a very sad and troubling one.  Mother was herself placed in care aged 13, having been exposed to domestic violence between her own mother and her partner.  Her mother is said to have had a nervous breakdown and to have been unable to cope with Ms R and her brother.  Once in care, Mother’s life continued in a very unsettled vein.  She had an incredibly turbulent remainder of her childhood and became involved in prostitution from age 16, if not earlier.  She was stopped 30 times for prostitution between 2008 and 2013 and arrested and charged in 2007, 2009 and 2011 and, I believe, cautioned.

11.              She began abusing drugs, including class A drugs – cocaine and crack – aged 14 or earlier.  She met Mr HE when aged around 22 and he, she says, helped her move from prostitution to clipping and they were in a relationship for nine years until he was sent to prison in 2012.

12.              Mother came to the attention of London Borough of Greenwich in August 2013, when she was seven months pregnant as a result of being arrested for drink‑driving.  She was arrested again on 5 September 2013 for drink‑driving and, in the referral, the police disclosed that Mother was known to them for prostitution and issues of domestic violence perpetrated by HE, then regarded as Mother’s ex‑partner.  The mother then admitted using drink and drugs while pregnant.  She was, at this stage, living in the home of  V, her then partner, in Beckenham.  She reported that she had met V while visiting HE in prison.  She said the relationship with V was a violent one and, indeed, V was then himself in prison for an offence of burglary.  V has an extensive criminal history and is a Schedule 1 offender for an offence of indecent assault on a 16‑year‑old female.  Mother says she did not know about that offence.

13.              Father, as I say, was in prison at the time of D’s birth and Mother has not resumed her relationship with V  since the birth and has had no contact with him and, indeed, V has never met D.

14.              Concerns about Mother during the pregnancy continued as she failed to attend antenatal appointments and was diagnosed as having syphilis when seven and a half months pregnant.  She failed to engage with drugs services fully and, as a result, the unborn baby’s name was registered on the Child Protection Register on 2 October 2013.

15.              D was born on 9 October 2013 and exhibited some signs of drug withdrawal following her birth, which were described as being at level four.  The Local Authority commenced proceedings on 21 October 2013 and, on that date, Mother and baby D were placed in a mother and baby residential unit at Jamma Umoja.

16.              As I say, the first interim care order was made on 7 November 2013 and Mother and baby remained at Jamma until 20 January 2014.  That assessment was broadly positive but concluded at E129 that the prognosis was cautious.  Indeed, Jamma Umoja were adamant that Mother required intensive input from a residential drug rehabilitation centre.  They concluded, I note, at E124, in relation to Mother’s drug history, that a recent drug test covering the beginning of February 2013 to the end of November 2013 depicted the use of cocaine throughout and the use of cannabis from May onwards.  Whilst Mother disputes any cocaine use past the first trimester, they noted this was a huge and worrying discrepancy between her self‑reported drug history and the drug test results, suggesting a lack of honesty with the assessment process, and they noted that Mother had no previous history of abstinence in the community and any current abstinence was only achieved within a protective environment, and that is in the context of a 15‑year history of not having been sober.

17.              The assessment unit also noted at E110 Ms MR’ description of her relationship with HE; it is recorded that she said that HE was very violent towards her.  He would hit her frequently.  She described suffering bruised ribs on one occasion.  She said the violence ended because, ‘He had the realisation one day he was going to hit me and I was not going to get back up’.  She was asked why she accepted the violence and she was able to reflect and say that she saw her mother accepted domestic violence so she thought it was the norm.  She did show some insight but said that they had never spent a day apart until he was arrested for selling class A drugs to undercover police for which he received a sentence of three years’ imprisonment.  At that time, they had been trying for a baby and she described their relationship as being best friends.

18.              She described feeling looked after while she is in a relationship with him and was heartbroken by his arrest, but she had shown insight into the dangers of HE around D and she knew she could not rekindle her relationship.  Jamma showed some prescience when saying there is a concern that, when HE is released, if Ms MR does get into contact with him, she will resume her relationship with him, as she feels he made her life better and she is quite clear that the relationship only ended before he went to prison.

19.              At paragraph 71 on page E113, Jamma recommended that if Ms MR were to go into the community with D, they recommended there were unannounced visits and that she made the Local Authority aware of who was coming to the property and whether she entered a new relationship.

20.              Mother and baby moved on that recommendation to Phoenix Futures with the full support, I understand, of all parties, and she remained there until the discharge on 21 July 2014, so she was there are some six months.  Again, that was a broadly positive assessment where Mother was largely compliant, but, at E160, the assessors there noted how MR spoke very affectionately about HE, stating he was good to her, looked after her and showed her a different way of earning money to fund her drug and alcohol use, i.e. clipping.  Prior to this, MR was undertaking sex work to fund her habit.

21.              There was concern identified by all professionals about whether Mother, despite having done very well in the assessment process, and despite providing exemplary day‑to‑day care to her daughter, there was concern about whether she would be able to continue abstinence and make positive changes and remain disassociated from her previous criminal lifestyle.

22.              In fact, it appears things went awry fairly quickly in that Mother and baby were placed in temporary accommodation in and around the Bromley area.  Initially, things seemed positive, but on an unannounced visit on 22 August 2014, a family support worker, Tracy Reece, discovered that D was not at home with Mother, but was being looked after by an unknown male who mother said was an old friend and youth worker, MH, and that he had taken baby D to the shops.  The family support worker noted the baby was in a grubby vest, the weather was rather cool and she did not have enough clothing on.  As a result of the discovery that the mother had left the child with an unknown male, thought at that stage to be MH, the child was removed later that day and placed in temporary foster care.

23.              Mother filed a statement dated, I think, 3 September, purporting to be from the said MH, who confirmed that he was an old friend and a youth worker who had known Mother for many years and was a married man who was a benevolent and helpful support to her.  However, subsequently, evidence was heard on this issue and, at a hearing on 2 October 2014, Her Honour Judge Redgrave at Bromley County Court heard evidence from a number of witnesses who are listed on that order, that included the family support worker in question; Andrea Goddard, a senior practitioner; the allocated social worker; Mother herself and the children’s guardian, and the live issue at that hearing was whether in fact this man was the said MH or in fact Mother’s former partner HE.

24.              Mother, I understand, gave evidence at that hearing and her position was that the man in question was indeed MH and not HE.  The court found that the male with whom mother left D was in fact HE and not MH and, as a result of that hearing, whilst the court considered the Local Authority’s removal on 22 August had been wrong, and Mother and child had in fact been reunited in a residential assessment centre, the court then authorised immediate removal and baby D was placed back with the previous foster carers.

25.              Since that time, Mother has been evicted from the home in which she was living.  It is not entirely clear the reasons why but it seems to be that it was partly because she had ownership of a dog in the property and various males had been visiting the property, but in any event it is unclear where she has been living since, save that her statement of yesterday says she has been staying with a friend.

26.              Contact since October 2014 has been happening, although Mother has missed 10 sessions of contact, which has resulted in D being brought from foster care to the contact centre needlessly.

27.              That brings us to the hearing now.  I have heard some updated information about the child, D.  She has had a rather unfortunate time health‑wise, has had a stream of constant colds and is on her sixth or seventh bout of antibiotics.  A detailed paediatric review took place yesterday, 27 January, and revealed that she had what appears to be fused tonsils.  She is now on a course of steroid treatment and a referral for surgery has been made which is likely to involve removal of her tonsils and adenoids and it is hoped that that will resolve her health problems.

28.              The children’s guardian and the social worker confirmed that she is a happy, engaging baby, despite her health problems, and is eminently adoptable as the family finding report, which I have read, confirms.

29.              During the course of this short hearing today, I have heard live evidence from the social worker and the children’s guardian.  Both confirmed their statements.  The Local Authority now agree with the guardian’s recommendation for a one‑off ‘hello and goodbye’ contact for Father at prison for D.  Both the Local Authority and the guardian oppose the granting of parental responsibility for Father.

30.              Both professionals impressed me as having given careful and thoughtful evidence today.  They both clearly have sympathy for this young mother.  The children’s guardian described her as a very nice and intelligent human being who has had a very complex and chaotic background and she did her very best but simply has not been able to disentangle herself from HE and her other associates and the risk for D is that, if she were to return to her mother’s care, that she would be exposed to the dangerous, destructive and damaging lifestyle that has been Mother’s only experience for all of her life until she was placed in the residential unit with her child.

The legal framework within which I have to make my decision

31.              Mother agrees, and I have decided that the threshold criteria are met, so I must then go on and determine whether I should approve the Local Authority care plans and make a care order and a placement order, or whether D should be and could be cared for by her mother under a supervision order or under any other mechanism that I see fit.

32.              In determining that issue, I bear firmly in mind that D’s welfare is my paramount concern and that is her welfare throughout her life.  I have reminded myself of the provisions of the Welfare Checklist at Section 1.4 of the Adoption and Children Act 2002 and, indeed, Section 1.3 of the Children Act 1989.  I remind myself of the no order principle and, in this case in particular, of the no delay principle at Section 1.2.

33.              I approach this application on the basis that the best place for any child is within their family of origin unless there are clear welfare grounds which require an alternative, and my task is to consider whether D could be cared for by her mother to a satisfactory standard within an appropriate timescale, and not whether she would be better off being adopted or placed elsewhere.

34.              I remind myself that in Re B (A Child) [2013] UKSC 33, Hale LJ said:

‘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’.

 

35.              The approach to be adopted by the court in relation to that phrase ‘nothing else will do’ has been further helpfully clarified in the case of Re M (A Child) [2014] EWCA Civ 1406, where Black LJ emphasised that the ‘nothing else will do’ must be read with ‘in her interests’:

‘It is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests.  This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case.  Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chance of them working out are far too remote…’

 

36.              There is further helpful clarification in Re R [2014] EWCA Civ 1110 and as in Re R, as in this case, there are only two realistic options for D: either she goes home to Mother on some basis or another, or I make a care order with an adoptive placement to be sought for her.  In Re R, the President’s comments at paragraph 39, 44 and 54 provide useful clarification.

‘At the end of the day, the court’s paramount consideration … is the child’s welfare “throughout his life”.

 

Nothing that was said in Re B‑S was intended to erode or otherwise place a gloss upon the statutory requirements of Section 1 of the 1989 Act and Section 1 of the 2002 Act … In particular, before making a decision relating to a child’s welfare, a court is required to have regard to, amongst other matters, the factors set out in the relevant Welfare Checklist’.

 

37.              In considering that test, I remind myself that I have to be satisfied there is no way that this Local Authority could provide the requisite assistance and support required for D to be able to remain with her mother.  Finally, I also must be satisfied that the orders I make are lawful, necessary, proportionate, and a reasonable response to D’s predicament.  I remind myself that a care plan for adoption represents the most dramatic curtailment of the rights of this mother and of D under Article 8 of the European Convention on Human Rights, which can only be justified by D’s overriding welfare needs.

38.              In conducting the balancing exercise, I must look at the clear advantages to D of being brought up in her mother’s care.  It is plain to me that this is a mother who loves her child unconditionally.  She is able to provide her with exemplary day‑to‑day care.  She can provide emotional warmth and stimulation.  She is plainly a likeable and intelligent young woman who is able to be resourceful and has overcome considerable adversity and has made significant progress.  She has the potential to be an excellent mother and indeed has shown that she is an excellent mother.  The advantage of D being brought up by her mother would be that she could grow up in her family of origin with her birth mother, preserving her identity and culture.

39.              However, it is clear that the disadvantage of a placement with her mother is that Mother has been abusing drugs and alcohol for over 15 years.  She has been involved in a lifestyle of a sex worker for over 15 years.  She has been enmeshed with HE for over nine years and I am satisfied that, despite her very best efforts, Mother has maintained a relationship in some form or other with HE, probably during her assessment at Jamma Umoja, but certainly immediately after her return to the community in July 2014, culminating in the incident when HE was found in charge of D on 22 August 2014.

40.              The toxicology reports, including the clarification report dated 23 January, suggest that the mother has been less than candid about her drug use, but even if there remains a question about that, it is clear that the mother’s alcohol use is far from resolved.  She used alcohol immediately after D was removed.  She smelled of alcohol when she attended court on Monday, according to the guardian, and, even in the mother’s own statement at paragraph 16, she accepts that she had a few drinks since then but has not drunk alcohol to excess.  She has the insight to see that this is a bad idea but says that this has filled the gap that has been created in her life by D’s absence.

41.              It is plain and understandable that, with the context of 15 years of a criminal lifestyle and abusing drink and alcohol, that Mother has failed as yet to resolve those problems and it is clear that her own neediness, because of her difficult background, for a relationship with HE, took priority over her daughter.  As it was submitted by the guardian, if the test before me today were Mother’s effort, I may be able to reach a different result.  The test is not, however, Mother’s effort.  The test is what is in D’s best interests and it is clear that D cannot be exposed to the very clear risks caused by Mother resuming her previous lifestyle which, as the guardian says, is dangerous, destructive and damaging, and the impact on D cannot be underestimated.

42.              As against a placement with Mother, I consider the pros and cons of an adoptive placement.  The disadvantages of an adoption are stark.  It is clear that there are many risks associated with an adoption.  There is the loss of a sense of identity, the loss of a birth mother, and the loss of a sense of belonging, and the emotional impact that may have on D as she grows up.  However, as the guardian points out at E226 of her report at paragraph 45, the extent of the impact on her cannot be known at present and it will depend on the quality of her relationship with her adopters and, to a certain extent, the undesirable impact of being adopted on her sense of identity can be negated by good quality life story work and appropriate letterbox contact with her birth family.  If she has a strong relationship with her adopters, D may well feel fortunate to have been adopted, but it is idealistic to assume she will have no questions or curiosity in relation to her birth family and where she came from.  I am reassured by all the parties today that the life story work that is being done in relation to D will counterbalance some of the risks that an adoptive placement poses.  The obvious advantage of an adoptive placement are that adopters will be found who can provide stability, security and all her needs should be met, thus a placement of relative certainty as against the relative unpredictability of life with her birth mother.

43.              When I consider the relevant checklist under Section 1.4, clearly D is far too young to have her own wishes and feelings, but I have no doubt that if she were able to express her wishes she would wish to be with her mother.  However, her needs as a 14‑month‑old baby are that she now needs permanency in a stable and secure home which will meet all of her physical, emotional and educational needs, and I am absolutely satisfied that an adoptive placement is the only option which will achieve that end.  Life with her own mother would not meet her needs and would expose her to the very real difficulties that Mother’s own life has been beset by.

44.              The likely effect on D of having ceased to be a member of her original family: as previously stated, it is a draconian step, adoption, which will mean the loss of her birth mother and father, and the court does not underestimate that impact but, as the guardian has identified, one hopes that life story work will minimise that impact to some degree.

45.              D is a happy, and hopefully soon to be healthy, 15‑month‑old baby and adoption is the only option which will meet her needs.  Despite Mother’s very best efforts, and despite her love and commitment to her daughter, her longstanding history of involvement in the sex industry and with alcohol and drug abuse and her entanglement with HE, who appears to have been some sort of pimp for her, and her maintaining that relationship, even whilst under the intense scrutiny of care proceedings, means that there is no way that D can wait any longer for her mother to resolve those difficulties and that, as of today, the continuing risk of harm to D of being placed with her mother would be very severe.

46.              Despite Mother’s many positives, therefore, when looking at her capabilities as a parent, it is my view that she is not able to meet D’s needs because of her own unmet needs and her own neediness.  I recognise and acknowledge Mother’s strong opposition to adoption, but I am absolutely clear that adoption is the only option for D and I am clear that D’s welfare requires adoption, notwithstanding the mother’s opposition.

47.              In summary, therefore, I am satisfied that, for D, a care order should be made and I endorse the care plan and order that a placement order should be made and I am satisfied that, pursuant to Section 1.3(b), Mother’s consent should be dispensed with because D’s welfare requires it.

48.              As to parental responsibility for Father, I do not consider that it is in D’s interests for a parental responsibility order to be made.  I accept that the father has shown commitment to D since he became aware of these proceedings in December 2013, but I am satisfied that the benefit for D is, as the guardian says, in him having made the application and having been committed to this process, and that there is no real benefit to D now, at this stage in the proceedings, in Father being granted parental responsibility.  I am satisfied that in the fullness of time, if an adoption application is made, that he will be notified, as good practice requires, and I am reassured by the Local Authority’s conduct since July of last year that they will involve him and inform him of any relevant circumstances relating to his daughter.

49.              I am, on balance, satisfied that the contact session that is proposed at the prison should happen, and I am reassured that the Local Authority will take steps to ensure that, so far as is possible, that D’s safety is safeguarded and it seems to me inherently sensible that Father is not given prior notice of the visit and indeed that no one, save for the professionals involved, is given prior notice of the visit.

50.              It only falls for me to say, finally, that I hope that if D, in the fullness of time, reads this judgment when she is grown up, she can see that she was and is a much-loved child by both her parents.  They both love and care for her and her mother has fought hard to overcome a lifetime of adversity and very nearly did enough to care for her daughter, but her own tragic and difficult life and her own neediness for Mr HE mean that D’s safety cannot be safeguarded satisfactorily, such that adoption was the only option available to the court.

51.              Like the children’s guardian, I hope very much that Mother overcomes her difficulties and does achieve abstinence and does disentangle herself from Mr HE so that, if in time D comes looking for her mother, that they can have a meaningful relationship.

 

_____________________