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

		13 November 2015

Introduction and background

1. In these proceedings I am concerned for A, a baby who was born on 16 July 2015 and so is four months old. She is the child of the mother and the father and as a married couple they both have parental responsibility for her. A has never been named by her parents so the local authority have had to register her birth just with her surname, although they have chosen an appropriate first name for her to use on a day to day basis. A's heritage is black, her mother being of Black Caribbean or Black African heritage (both were referred to in the papers in a previous set of proceedings regarding the family although in these proceedings I note she is described definitely as Jamaican) and the father is of Black African heritage. A has an older sister and two older half siblings, a sister on her mother's side and a brother on her father's.
2. A's older sibling was the subject of care proceedings which concluded early this year with this court making final care and placement orders. The reason for making those orders was the sexual risk the father posed to that child and the mother's inability to protect from that risk. A's older half sister, J, the mother's eldest daughter, was removed from the care of her mother and stepfather after disclosing her stepfather had indecently assaulted her. She now lives with her father. What is key from those proceedings is that findings were made that J had suffered significant physical and emotional harm due to sexual assaults perpetrated by her stepfather and her mother's failure to protect her.
3. The parents failed to engage fully in either the proceedings regarding J or those regarding this baby's full sister, despite great efforts being made by the court to engage them. The parents' approach to these proceedings has been even more conclusive, as they have not attended any of the hearings before me, although they did attend the first hearing before another judge. The father has even declined to have any contact at all with the guardian, the mother having just two phone conversations with her.
4. The birth of A was concealed by the parents from the local authority but as they were continuing to have contact with her older child the local authority had suspicions the mother was pregnant. The police were asked to carry out welfare checks which led to A being located. It transpired the mother had given false information to hospital and midwifery staff and had given birth under an assumed name. On becoming aware of A's birth the local authority made an urgent application to the court and an interim care order was granted on 31 July. Since then A has been placed in foster care and her parents have had regular contact with her.

The Issues and the Evidence

5. In preparing for this hearing I have read the bundle of papers provided to me in this matter and I have heard submissions from the legal representatives of the local authority and those representing A. The parents have chosen not to attend today's hearing although it has been made clear today is the final hearing and the order listing the hearing was sent to them at the addresses they gave the court for service.
6. Given the absence of the parents, I have looked at the great efforts made by the local authority to serve various documents on the parents in the last two months. Even though the parents have been attending for contact, it has been impossible to do more than touch them with the documents, a technical service but unsatisfactory as the documents have not been handed over. Documents were then sent to the father's address, this being the address the parents have asked the local authority to serve them at, but attempts to hand them over at that address have drawn a blank. It certainly seems the parents are wise to the desire to serve them personally and are avoiding it. They have however been sent the relevant information, the last order, and the bundle of papers which included the unissued placement order application. The children's solicitor posted the guardian's report to the father at his address for service. Given concerns about the mother's service address, it being known she does not live at that address but relies on the postal redirection service for mail to reach her, the solicitor wrote to the mother at that address indicating a copy of the report could be collected from the solicitor's office, this approach having been approved by me. The report has not been collected. Since the last hearing on 23 October the local authority has sent two further letters to each parent trying to engage them in this process and I have seen statements from a process server and from the social worker as to the efforts they have made to inform the parents of what is happening.
7. Having considered all those matters, I am satisfied that it is appropriate to continue to deal with matters to conclusion today.

THE LOCAL AUTHORITY'S CASE AND THE GUARDIAN'S

8. The local authority invites me to make care and placement orders in respect of A and the guardian supports those applications.
9. The local authority relies on the evidence of the child's social worker as to the efforts made to engage the parents in an assessment without success. The local authority's case is that, given the findings made in J's proceedings, if A was placed in the care of her parents she would be at risk of significant sexual and emotional harm. Given the parents' lack of co-operation, the social worker has been unable to carry out any assessment as to managing the risks the parents present in light of the findings and as a result the local authority cannot recommend placement with the parents.
10. The social worker in her final statement looked at the positives in the scenario of A growing up living with her parents. Balancing those against the risk of harm in light of the previous findings, she concluded A could not return to her parents. The social worker said there was no support the local authority could offer to diminish those risks short of oversight twenty four hours a day. She considered the possibility of just the mother caring, but the fact that she would not accept the findings made in relation to her husband in the previous proceedings and the findings that she had not protected J from significant harm meant she would not be able to protect A either.
11. The local authority has approached those family members of whom it is aware, save the maternal grandparents who have been negatively assessed in previous proceedings, to ask if any wishes to care for A but nobody has responded positively. As a result the social worker concludes that adoption is the best outcome for A. She acknowledged in her final evidence this would sever the baby's ties with her birth family forever, apart from possibly her sister with whom she may be placed. However the social worker said this was necessary to provide for A's future care and long term emotional security, her only chance of that being by way of adoption. Long-term fostering it is argued does not give the same level of permanence, although of course it would give the possibility of maintaining a relationship with her parents.
12. The local authority's plan is that A would remain in her current foster placement whilst the local authority looks for an adoptive placement. The prospective adopter for A's older sister has expressed an interest in A being placed alongside her sister and that possibility is being assessed. A would have gradually reducing contact with her parents whereby it will go down in stages to monthly contact and thereafter remain monthly until a placement is identified. Annual indirect contact is proposed with the parents by way of the letterbox system and also at least indirect contact with her elder half sister. It is of course hoped that A will be placed for adoption alongside her full sister.
13. The guardian's case is set out very clearly in her report. She has attempted to speak to both parents. The father has been approached by phone and in writing but has refused to speak to her. The guardian has had two phone conversations with the mother, in which the mother made clear that she did not see the father posed any risk to her daughter, not accepting the findings made by this court that her husband had sexually abused her older daughter. The mother told the guardian that she did not wish to be assessed. Her expressed view has been that her daughter's future is in God's hands.
14. The guardian shares the local authority's view that A would be at risk of significant harm if placed in the care of her parents, given the risk posed by the father and mother's inability to protect. She is also concerned about the historic use of physical chastisement by the mother which has not been fully explored with her due to her lack of engagement.
15. In her report the guardian analyses the options available for A and concludes that adoption would be the best outcome in terms of meeting all her needs including the need to be kept safe.

THE PARENTS' CASE

16. Turning to the parents' case, I find myself in a more difficult position than I did when dealing with A's older sister as the parents have not engaged at all in the court process. There was a single document sent to the court with addresses for service on and this at the top : "1. Motion to adjourn in respect of due process. All applications by (applicant) is declined/refused/not accepted." I can only deduce from that that, as with their older daughter, they do not accept the authority of this court to make decisions regarding A. In my judgment in the previous proceedings when summarising the parents' case I concluded thus : "First, they do not accept the authority of this court or any body involved in these court proceedings to act in relation to their child. Second, they do not accept that this court should rely on the findings of the first judge made in respect of their treatment of J and so say that the child I am concerned with would not be at risk of harm in their care." From what they have said to the guardian it seems to me that summary is as valid now as it was then.

Threshold

17. Turning to the threshold which has to be met for the making of a care order, what is required is set out in section 31 of the Children Act 1989. That section says that a court may only make a care order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm, and that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.
18. The judge who dealt with J's proceedings found that J had suffered significant physical and emotional harm by way of sexual assaults which had occurred on more than one occasion. The assaults involved the father touching her body in numerous places, both intimate and non-intimate. The mother had failed to protect J from the risk of further significant harm, and/or had failed to prioritise her needs thereby causing emotional harm, by refusing to separate from the father and indeed resuming care of the child along with the father when she was meant to be living with the paternal grandfather. The court found that J would be at risk of suffering further significant harm in her mother's care due to the parents' ongoing relationship and the mother's history of refusing to engage with professionals in respect of child protection matters.
19. I am bound by the findings made in the proceedings regarding J, as I was when dealing with the proceedings regarding A's older sister, findings which have never been appealed by the parents. The parents chose not to play any part in that hearing, despite the court's great efforts to engage them, and the court ultimately tested out the evidence for itself in the absence of the parents. In light of those findings I am satisfied that A would be at risk of sexual harm from the father were she to be placed in the care of either of the parents.
20. Again, as I said in the proceedings regarding the baby's older sister, "It is clear that neither of the parents accept the risk of sexual harm from the father. Their relationship and their support of each other has been prioritised over the needs of the child. I am satisfied the mother given her expressed views would not be able to protect the child from the risk of sexual harm perpetrated by the father." My detailed findings are set out at the end of this judgment and replicate those made in respect of A's older sister.

Decision

21. I now turn to consider what orders if any are in the best interests of A when considering plans for her long term future. 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".
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, 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 A's welfare throughout her 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 child 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 child's rights and be proportionate.
24. A placement order is sought by the local authority in respect of A. 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 a central question in this case, whether the child should be rehabilitated to the parents' care (with or without statutory orders) or whether she should be adopted. Given the child's age I do not see long-term foster care as an option, and I have in mind the comments of Black J (as she then was) in Re V [2013] EWCA Civ 913, in particular paragraph 96, when one looks at what both types of placement would offer by way of security. With children as young as here I accept the social worker's view that the child should not be placed in long-term foster care and that her need for a permanent secure home would best be met by an adoptive placement if she cannot return to the care of her parents.
26. When looking at the options being presented to me I have to balance the pros and cons of each. McFarlane LJ in Re G [2013] EWCA Civ 965 said "What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options." 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 the most important of those factors and looking at the two realistic options which are presented to me.

PLACEMENT WITH HER PARENTS

27. A has all the same needs any young baby has, not least to be kept safe but also to have all her physical and emotional needs met. She also has some mild health issues which need to be monitored by health professionals. I have already found that she would be at risk of significant harm if returned to the care of either or both of her parents. I have no assessment of the parents to fall back on but, given what I know of the parents and given that there seems to have been no change in their attitude, I cannot see any work that could be done with the parents or support that could be put in place to reduce this risk. I also have to remember the parents deceived the authorities in respect of A's birth so I could have no confidence at all that they would work openly with professionals to keep A safe.
28. Linked to this factor is the question of how able the parents are of meeting A's needs. It seems that during contact the parents have been able to meet her physical needs but of course a baby's needs go much wider than that. Her need for a safe and secure home throughout her childhood I am satisfied cannot be met by either of the parents in light of the findings I have made.
29. When looking at her age, sex, background and any characteristics of hers which the court considers relevant, clearly A's ethnicity has to be taken into account. If she could live with her parents all of her identity and cultural needs would be met, although she would still have the loss of her siblings to contend with as it would be very unlikely any contact with them would be possible.

ADOPTION

30. Were A to be placed with adopters, I am satisfied that A's particular needs would be met. I cannot be certain that her cultural needs would be directly met although I note the local authority would hope to find an appropriate match when looking for potential adopters. What they can achieve may not be perfect but I am satisfied the adoption agency have this issue at the forefront of its mind.
31. If an adoption order is made clearly there will be an effect on A throughout her life of having ceased to be a member of her original family and of becoming an adopted person. It may be that she will question in the future why she is adopted and this is something her adopters would need to address with her. She will lose her relationship with her parents who have kept up regular contact with her throughout the last few months. She will however hopefully be able to have a significant relationship with her older sister, hopefully the chance to grow up with her, and that of course would be a hugely positive factor in terms of her identity. She may also be able to have contact with her older half sister, who lives with her father and has no contact with her mother; the potential for this may be better if A is adopted but I cannot be sure of that.
32. Of course adoption means moving A from her current home with foster carers and change is never ideal. However A will have to move whether she goes home to her parents or is adopted and I know that will be carefully managed.
33. When looking at the options before me, I find myself going back to my judgment in respect of A's older sister when I faced the same alternatives. Again, what I said then is as valid now. "If A is placed with her parents she would have the benefit of growing up in her birth family, with no issues around her identity and with people who have a strong sense of their relationship to her. However I am clear she would not be safe from harm. I have no sense whatsoever that the parents see any need to change or to address issues which have been evident before the court in these proceedings and the previous ones regarding her sister. Alternatively I approve the local authority's care plan of adoption. As the guardian says, that would offer her the opportunity to be part of an enduring family unit and live within a settled and stable environment where she is free from harm, without any ongoing statutory input. Whilst acknowledging that adoption means a severing of ties of relationships with birth family, I am satisfied that here the advantages of adoption outweigh the disadvantages and also outweigh the positives of placement within the birth family."
34. In this case therefore, as with her sister before her, I am satisfied that there is no realistic prospect of A being returned safely to her parents' care. She requires a permanent stable home and that can only be provided to her by way of an adoptive family. I am satisfied that the local authority's final care plan for A is a proportionate interference in the child's family life and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. Further, having concluded that A's welfare requires me to dispense with the parents' consent to placing her for adoption, the word "require" here having the Strasbourg meaning of necessary, "the connotation of the imperative", I make a placement order authorising the local authority to place A for adoption. I very much hope that a placement can be found for both girls together or as a minimum placements that will allow frequent direct contact and I am confident the local authority will do all it can to achieve that.

Additional directions

35. There is one further direction I wish to make which is a standard direction for me. 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 A up. I propose therefore to make a direction that this judgment must be released by the Local Authority to A's adopters so that it is available to her in future life.
36. Finally I also make an order for public funding assessment for the child's legal costs in this matter.
37. I would advise the parents that any application for leave to appeal my decision has to be issued within twenty one days of the making of this order. If they wish to purse this then information as to what is required can be obtained from this court office but assistance can also be found on the internet, this link possibly being of assistance - https://www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal/civil-division/questions-and-answers.
SCHEDULE OF FACTS – THRESHOLD

The child is likely to suffer significant harm and the likelihood of harm is attributable to the care given to the child, or likely to be given to her if the order were not made, not being what it would be reasonable to expect a parent to give to her. This is evidenced by the following facts :

38. In proceedings under matter number LJ13C00324 findings were made in respect of the parents regarding another child, J, as set out in the threshold document in those proceedings dated 3.3.14. Those findings in summary were that J had suffered significant physical and emotional harm by way of sexual assaults which had occurred on more than one occasion. The assaults involved the father touching her body in numerous places, both intimate and non-intimate. The mother had failed to protect J from the risk of further significant harm, and/or had failed to prioritise her needs thereby causing emotional harm, by refusing to separate from the father and indeed resuming care of the child along with the father when she was meant to be living with the paternal grandfather. The court found that J would be at risk of suffering further significant harm in her mother's care due to the parents' ongoing relationship and the mother's history of refusing to engage with professionals in respect of child protection matters.
39. By virtue of those findings, the father presents a risk of sexual harm to any child in his care.
40. Neither parent accepts that the father presents any risk to any child of sexual harm and therefore neither parent would act in any way to protect the child from that risk. The parents prioritise their relationship over the needs of the child.
41. Any child placed in the care of the parents would be at risk of suffering sexual harm.
42. The child is likely to suffer significant physical and emotional harm were she to be placed in the care of either or both of her parents. That harm would be caused by sexual assault perpetrated by the father and/or a failure of the parents to meet the emotional needs of the child consistently.