England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF EN

		14 August 2015

HHJ PEMBERTON:

1. I am concerned with EN who is 2 years old. On the 3^rd July 2015 I handed down a judgment following a finding of fact hearing. The background to these proceedings is set out in that judgment and this judgment is intended to supplement that earlier judgment.
2. The finding of fact hearing had taken place over 2 days with evidence heard from a number of witnesses. The LA sought findings that the injuries to EN had been inflicted and had been inflicted by either the mother or her friend CK who was present and represented as an intervener in those proceedings. Whilst the mother did not seek to blame CK for the injury, the approach taken by the LA and the Guardian at that hearing was that either could have been responsible for the injuries and the evidence of the mother and CK was tested on that basis. It was only in closing submissions that the LA and the CG concluded that there was no evidence to indicate that CK had the opportunity to have caused the injuries to EN and therefore invited me to make the findings in relation to the inflicted injures against the mother alone. I accepted these submissions and made a number of findings against the mother and also a finding that the relationship between the parents had been a violent one.
3. Following the conclusion of that hearing and my findings that the mother was responsible for causing the injuries to EN, the mother then told a number of professionals that her earlier accounts had been untrue and in fact it was CK who had cared for EN and put her to bed on the day of the injury occurring. She also revealed that she and CK had been in a sexual relationship and had seen each other on a more regular basis than she had previously disclosed. An application supported by a very helpful skeleton argument was made on her behalf seeking for the findings that I had made to be reopened. This application was first considered on the 24^th July. At that hearing I ordered that the application to reopen the previous findings should be dealt with at a preliminary issue at this hearing. While this hearing was listed as an IRH, all parties were aware that the intention was to conclude these proceedings.
4. I therefore heard the application on behalf of the mother to reopen those findings. The application was opposed by the LA and the children's Guardian. I considered the law in relation to the reopening of a fact finding which all parties agree is as set out in the very detailed skeleton argument of Ms Fearon. In particular the three stage test set out by Charles J in Birmingham v H & Ors [2005] EWHC 2885 which has been expressly endorsed in subsequent cases.
5. The mother has filed 2 further statements in which she told me that the evidence that she gave to the court at the fact finding hearing was untrue and she now wishes to give an alternative account in which she will say that the injury to EN's leg may have been caused by her friend CK. I refused her application to reopen the findings. My decision was made on the basis that when considering whether a rehearing would result in a different finding, I must in accordance with stage one of the "Birmingham" test consider whether the new evidence or information would cast doubt on the original findings. The only new evidence is the revised account given by the mother. This is at least her 3^rd account of the events of the day that EN was injured. It is not corroborated in any way by any other evidence. Given the mother's lack of credibility, the weight that I could attach to her evidence is clearly very limited. At its best, it may be that a reopening of the fact finding would lead to a finding that CK was within a pool of potential perpetrators but a perpetrator could not be identified. I am conscious that whilst itt is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so. I have of course already had the advantage of seeing both the mother and CK in court and have seen them being cross examined. I made very adverse findings in relation to both the mother's conduct and her presentation in court. I find it extremely unlikely that I would be likely to reach a different conclusion and as already stated, even if the conclusion were to include CK as a perpetrator, the prospect of removing the mother from the pool of perpetrators in my view is almost nil.
6. Even if I were able to remove her from a pool of potential perpetrators, the lies that she has told to the medical professionals, the police, the court, the LA over a period of some 7 months, would lead to an inevitable finding of a failure to protect at the most serious level, both in terms of the injuries sustained by EN and in the subsequent investigations. On that basis and considering the guidance of Charles J in the Birmingham case, I did not consider that the reopening of the finding of fact as to the cause of EN's injuries was of such significance as to justify a rehearing. As I have observed, the alternative findings that I would be forced to make on the basis of the mother's own admissions if I were to accept her most recent evidence, would be unlikely to alter the subsequent risk assessment undertaken by the LA or my observations that the alternative finding would be a failure to protect of the very highest degree. That alternative finding is unlikely to be determinative in the subsequent consideration of what is the appropriate final order for EN in accordance with her welfare needs. That is the central issue in this case. In my judgment, the application on behalf of the mother did not come close to satisfying the first stage of the Birmingham test. I therefore refused the application on behalf of NL for leave to reopen my findings, and the subsequent application of Miss Fearon for leave to appeal that decision and for an adjournment of the hearing.
7. GP, as I observed in my earlier judgment, despite having notice of the proceedings and despite having attended at an earlier hearing, has chosen to play no part to date in these proceedings and has not (until July) sought out any contact with EN. He now invites me to reopen the finding that I had already made that the relationship between himself and the mother was characterised by domestic violence. He makes this application on the basis that the mother has no credibility and that the only evidence in support of this finding is that of the mother. Given that the father had never before sought to challenge the finding of domestic violence the LA had perhaps not explored in greater detail any other evidence there may be to support the finding that it sought. In essence, the LA had relied on the evidence of the mother. Mr Pickering on behalf of the father invited me to adjourn the proceedings to enable each parent to file more detailed evidence (and indeed GP wished to file a statement from a potential witness in relation to the allegations of violence). I was not prepared to adjourn the proceedings; each parent had had the opportunity to file any evidence on which they intended to rely.
8. However, given the difficulties that there are in the mother's credibility. I agreed that the finding in relation to domestic violence could be further explored during the course of this hearing. Both parents were present and were due to give evidence in any event.
9. I turn now to consider the position of the parties and the options available for EN. The LA, from their own assessments, conclude that adoption is the only viable option for EN and invite me to make a care and placement order. Both these applications are supported by the Guardian.
10. The father invites me to adjourn a final decision for EN to enable assessment of him as a full-time carer.
11. The mother's position is that there should be an adjournment for an initial period of three months to enable her to complete the course she has enrolled on, "understanding abusive relationships" which is due to commence on the 16^th September 2015 and an assertiveness and self development course which is due to start on 6 November. In addition, the mother has arranged a preliminary assessment meeting with a view to commencing counselling. She says that in three months time she will have made progress in all these areas. In the alternative she invites me to consider placing EN with the father.
12. I must therefore consider whether delay for EN, which is usually contrary to the welfare interests of the child, can be justified to enable further assessment of either or both her parents or whether I am satisfied that there is sufficient information to enable me to properly consider all options for EN.
13. I have read all the up-to-date evidence from the LA, the parents and the Guardian.
14. The LA has completed a number of viability assessments of family and friends. Sadly these are all negative. I was told during the course of this hearing that the mother's sister had contacted the LA, with a view to caring for EN. The social worker told me that she has had social services involvement in respect of her two children who are both involved with the "edge of care team," for children who were at risk of coming into LA care. Of particular concern is the violent behaviour displayed by the maternal aunt's son. The LA had therefore concluded that a placement with the maternal aunt was not viable. To her credit, when the mother gave her own evidence, she confirmed that she did not think this placement will be suitable for EN.
15. The LA carried out a parenting assessment of the mother prior to the finding of fact hearing. In that assessment the social worker concluded that if the mother was not implicated in injuries to her daughter, then rehabilitation should be implemented. However, if the mother was found to have been responsible for the injuries then rehabilitation would not be viable. As set out above, the findings that I made were that the mother had caused the injuries to her daughter.
16. Following that judgment the LA conducted a risk assessment. During the course of that assessment the mother gave her further version of events to the police and the LA. In this latest account the mother confesses to having been dishonest throughout the investigation into EN's injuries and these proceedings. The mother now states that she and CK had been in a relationship, that she and EN have had far more extensive contact with him, and that he may have been responsible for causing the injuries. In her assessment of 21 July, the social worker considers both the findings that I had already made and the mother's latest account. In the light of mothers history of dishonesty the social worker points to the real difficulties that she and other professionals have in gaining any real insight into how the injuries to EN were caused. She concluded that the mother accepts no responsibility or culpability in terms of either having caused the injuries herself, or in the alternative of having failed to protect EN. She concludes that there is simply no basis to work with the mother towards reunification. She is also concerned that the mother does not appear to understand the impact of both the emotional and physical harm on EN. She can not be relied upon to be open and honest with the LA and other professionals and the LA therefore would be unable to ensure EN's safety if she were in her mother's care.
17. The social worker gave oral evidence to me. The parents did not seek to challenge her evidence although her conclusion that adoption was the only realistic outcome for EN was not accepted by either parent. The parents' representatives agreed that this was a matter for submissions. I found the social worker in her written and oral evidence to present a balanced picture of the mother and to have considered very carefully all realistic options for EN. The social worker was able to confirm the quality of the contact between EN and her mother as being good and it was clear to me that she had considered very carefully whether there was any work that could be done with the mother to enable EN to be returned to her care.
18. She had made a number of attempts to engage the father in EN's life and in the assessment process. She had made a number of visits to the home that he was living in and left messages and letters for him. In the limited time she had had available since the father had made contact with the LA she had been able to gather a good deal of information and had spoken to his adult daughter. I found the social worker to be a compelling witness and I accept her evidence.
19. The next witness I heard from was the mother. She presented in a calmer manner than she had done at the beginning of July. She was obviously and understandably distressed and anxious at the prospect of her daughter being adopted and the overwhelming impression I got from her evidence was that she would say anything if that would avoid such an outcome. One very clear example of this was in relation to evidence about the father.
20. The Guardian met with the mother and father a day or two before this hearing. At that meeting the mother informed the Guardian that her allegations in respect of the father's violence were untrue and that she intended to retract all of these allegations. However, at this hearing she confirmed that she stood by the allegations that she had made and maintained that the father had been violent to her and had assaulted her while she had EN in her arms. She said she had retracted the allegations as she was desperate to avoid EN being adopted. Whilst maintaining her allegations of violence, the mother also sought to minimise these allegations.
21. Despite these allegations, the mother was anxious to tell me that in her view the father was a good father. She told me that she and the father had recently attended to reregister EN's birth with her father's name on the birth certificate therefore giving him parental responsibility. She did not explain to me why he had not appeared on the original birth certificate or why she felt it in EN's best interests to register him now.
22. In the event that EN could not be placed with her, she would support placement with the father. In the alternative if she were caring for EN, she agreed that the father should have contact although she appeared to say that this should be supervised.
23. The mother also introduced during the course of her oral evidence the possibility of her own mother (the maternal grandmother) being a prospective carer for EN. This is despite the fact that the mother has had a very difficult relationship with the maternal grandmother, with significant periods of her own childhood spent in the care of the LA and has had periods of estrangement from her mother due to (at least in part) the maternal grandmother maintaining a relationship with Mr. J who the mother alleges sexually assaulted her in the past.
24. The mother did have some limited insight into her own difficulties. She does now appear to recognise and acknowledge that she needs to undertake some therapeutic work. She identifies that she will need to address issues relating to the loss of the children through miscarriage or still birth and the loss of her father. She also accepted during the course of her evidence that she has entered into a number of inappropriate relationships. She told me that she just wanted to feel a little bit of love. She went on to say that because she had been in care she had not had a sort of love you are supposed to have. She had lost her children. She told me that EN was now her priority and that she did not intend to enter into any other relationships. The overwhelming impression I got from the mother's evidence was that she is extremely vulnerable and needy. This vulnerability and neediness has apparently led to her making unwise decisions and choices. I totally agree that the mother would benefit from therapeutic work to address her own issues. In my assessment of the mother, this work will need to address a significant range of issues. Unsuitable relationships is only one of the consequences of the mother's own issues. I can not accept the mother's assertion that she will avoid any further relationships. Without such therapeutic work I consider that she and EN would be at risk through the mother's choice of unsuitable associates and partners.
25. Turning then to the evidence of the father. He has filed a statement in these proceedings and he gave oral evidence to me at this hearing. He told me that he had not involved himself in the proceedings for EN because he relied on the information he received from the mother. He told me that the mother had assured him that EN was definitely coming home to her care and that he should not get involved. He explained that he had not simply relied on information from the mother but also from the documents that he had read, in which he said the LA's aim was for EN to be returned to the mother's care. He therefore attended only one hearing, missed appointments with his solicitor, failed to seek any contact with his daughter and failed to make any contact with the social worker to ask about her well-being. I found both his written and his oral evidence to be unconvincing. He was simply unable to recognise the impact on his daughter of his disappearance from her life. I have seen a letter sent to the father by the LA in May of this year advising him of the seriousness of these proceedings and I'm satisfied that the Guardian also advised him on the seriousness of these proceedings and the need to engage in them. I found the father to be entirely unconvincing in his explanation.
26. I am satisfied that the LA are right to seek a further finding that the father showed no commitment to or concern for EN's welfare until July 2015 and failed to have any contact with her between December 2014 and July 2015. This would have caused her emotional distress and confusion and in my view crosses the threshold as causing significant emotional harm. I therefore make this finding as sought.
27. The father has 7 children in total. It was apparent from his own evidence that he had had limited involvement in the lives of his children. Two of his children (GG and KT) have been adopted. In his statement he tells me that he was not informed by the LA of the proceedings or the adoption and he only found out years later. In the course of his oral evidence he told me that the mother was violent and an alcoholic. When I asked him why he therefore left his children in her care he told me that he had notified the LA of his concerns. He was unable to explain why he then seemed to have no further involvement in his children's lives.
28. The father's two adult children YK and YC live locally to the father and he is in regular contact with them. However YK has told the social worker that her father has never been a consistent parenting figure in her or her brother's childhood. She reports that he would make promises to contact them and not fulfill the promises. She also reported that her father had failed to contact her to congratulate her on news of her pregnancy. The father in his oral evidence accepted that his involvement with these children have been sporadic due to his overseas work for a long period of their childhood.
29. The father is also father to NS and SM who live with their mother in Leeds. They have been subject to child protection plans in 2012 under the category of physical harm as a result of "significant exposure to domestic violence"in the relationship between the father and his wife. The information that the social worker received was that there was no ongoing contact with the father. However, the father disclosed in his statement that he has re-established contact with SM. He accepted in his oral evidence that these arrangements are made direct with SM and that neither SM's mother nor the LA were aware of this ongoing contact. The father did not appear to recognise any difficulties in this subterfuge.
30. The LA invites me to find that the father had been involved in relationships in the past in which domestic violence featured and in which his children would have been exposed to a risk of physical and emotional harm. In particular, the father was in a relationship with Ms G (the mother of GG and KT, the children who have been adopted). The father describes Ms G as a very violent woman who was also "a drinker". He left his two children in her care at the end of the relationship and pursued no further contact. These children were subsequently removed from the mother's care and have been adopted.
31. The father denied that there had been any domestic violence in the relationship between himself and the mother. He did however accept that there had been an incident of domestic violence between himself and SM and NS's mother for which the father had a conviction in 2006. I find that I am satisfied on the balance of probabilities that the first additional finding as sought by the LA in respect of the father's historical relationship and the harm that his older children have been exposed to is made out on the evidence and I therefore make that finding.
32. It is apparent from the father's own evidence that his commitments to the relationship with both this mother and with the mother of NS and SM was very questionable with significant overlap between the relationships. The father tells me that he had been in a relationship with this mother for some 15 years, i.e. only since the year 2000. This does not fit with his statement in which he states that he met the mother in 2001. However even accounting for these minor discrepancies which may be due to a poor memory, it is apparent that for a number of years the father was in a relationship with both this mother and the mother of his two children, SM and NS.
33. The father has recently commenced a new relationship with a partner I will refer to simply as AB. Rather surprisingly he makes no reference to AB in his written statement. In his oral evidence he told me he was in the process of moving to live with AB in her property. The SW has made some initial enquiries in relation to AB which disclose a number of concerns. AB is recorded as being a victim of domestic violence in a previous relationship with her son being exposed to this violence. She has an adult son who has a number of concerning convictions relating to violence and a sexual offence. Whilst I have limited information in respect of the sexual assault, I am told that a period of four years imprisonment was imposed upon him.
34. When the father was asked about his new relationship and whether there may be any risks to EN from this relationship, he told me that the conviction of AB's son had been reduced in some way and that he was informed that social services have not done what they were supposed to do. He also told me that AB was prepared to move to Hull and cut all ties with her son. I have received no evidence from the father's partner and as I mentioned earlier, he makes no mention of her in his written statement before the court. He told me that he was prepared to end this relationship if it was found that she was not an appropriate carer for EN. I was struck by the father's lack of initiative and reflection. He appeared to believe that it was for social services or the court to assess the suitability of his new partner and he had a passive role in this process. Given the fact that he refers to his previous partners as having problems with alcohol and or violence it is worrying that the father does not seem to take personal responsibility in respect of his choice of partners and any risks they may pose to his children. Overall I was given the very clear impression that the father is unable to accept responsibility for the harm that all of his older children appear to have suffered through his lack of commitment, through exposure to domestic violence in the parents' relationship and neglect of their emotional needs. His ongoing unauthorised contact with SM is a reflection of this inability.
35. In his statement the father tells me of an incident that occurred shortly after he and the mother separated. He describes attending at the home of a friend of the mother to find the mother having sex with a man on a sofa whilst EN was asleep on the same sofa. The father in his oral evidence gave far more detail in respect of this incident, describing the distress that he felt. He was concerned that he may be assaulted by either the mother's sexual partner or another man who was in the house at the time. When he was challenged about his failure to protect his daughter from this situation his account became more and more elaborate and confused. He described returning to the house where his daughter was present (sometime later) but not entering and instead reassuring himself of his daughter's safety by following the mother sexual partner when he got into a taxi. Quite frankly I found this account simply incredible.
36. The mother disputes that she was having sex with another man but accepts that she was kissing another man. It is apparent that the father believes that the mother was engaging in sexual activity with another man whilst his daughter was in the immediate vicinity. I do not need to determine whose account is the correct one. Having read and heard the evidence of the father I am entirely satisfied that the second additional finding that the LA invites me to make in respect of the father is appropriate and consistent with the evidence. I therefore find that the father failed to protect EN when, on unspecified date in December 2014, he witnessed her in a situation in which he believed she was being exposed to a risk of sexual (and I would add emotional and physical) harm, he failed to remove her from the situation at the time or to report the matter to social services thereafter.
37. The father's general description of the mother was that she was somebody who could not be relied upon to tell the truth and she involved herself in inappropriate sexual encounters which placed children at risk. This makes his failure to make even the most basic enquiries into the injuries EN had sustained, the circumstances leading to her coming into care and her general well-being between from January 2015 until July, all the more concerning.
38. Since separating from the mother, the father has lived with the maternal grandmother and her partner Mr. J. As I have already referred to, the mother herself had an extremely difficult childhood experiencing a total of 41 moves between 1981 and 1990 as a result of numerous attempts to rehabilitate the mother to her own mother's care from periods in foster care. The mother disclosed to professionals that she was sexually abused by Mr. J on a number of occasions. The father in his oral evidence to me, made it clear that he does not really accept the mother's allegations due to apparent discrepancies in terms of the history and the mother's general unreliability. This lack of acceptance and allegiance with the maternal grandmother and her partner raise serious concerns in my mind as to the father's ability to recognise and protect EN from people who may pose a risk to her. It also raises serious concerns as identified by the social worker in terms of the limited support network that the father has.
39. The father accepts that he smokes cannabis on a daily basis in order to assist him in sleeping when he has finished working as a taxi driver. He tells me he is not dependent on cannabis and could give this up at any time. He also plans to give up his job as a taxi driver and is seeking work in a garage which he tells me would involve more regular hours.
40. In terms of the original finding that I had made that the relationship between this mother and the father featured domestic violence, whilst I have a real suspicion that some of what the mother says about the father's behaviour towards her may well be true, I remind myself that suspicion is not enough on which to base findings. It is almost impossible to rely on the mother's evidence given a number of different accounts that she has given and her own acceptance repeated at different stages of these proceedings, that she has not told the truth. There is little if any evidence to corroborate the mother's allegations of domestic violence and I therefore make no finding in respect of violence in this relationship.
41. The final witness to give evidence to me was the children's Guardian. She is a very experienced Guardian having been doing the job since 1988. I have been struck throughout these proceedings at the considerable sympathy that the Guardian has held for the mother which has made her evidence all the more compelling. The Guardian was keen to support the mother in seeking increased contact earlier in the proceedings recognizing, as I do, the real quality of contact and the attachment between mother and daughter.
42. The Guardian's report is very full and thorough. In my view, she has carefully considered all options for EN. She has carried out her own assessment and analysis of each of those options. She reaches a clear conclusion that adoption is the only outcome that meets EN's welfare needs. In reaching that conclusion she has taken into account all of the positives and negatives involved in adoption and in placement with a parent. She also takes into account the very positive contact that the mother has with EN. She observes that the mother is warm, loving, stimulating, and attentive to all of EN's needs. She describes the contact as "a joy to observe."
43. The Guardian met with the mother on 12 August when she describes her as presenting as a very fragile and vulnerable young mother whose mental health did not seem very stable. The mother has now been to see her general practitioner and has been prescribed stronger antidepressants, sleeping tablets and, as the mother has informed me, been referred to for therapy.
44. The Guardian was asked about the therapeutic work during the course of her oral evidence. In her view, whilst she considers the therapy will be of considerable benefit to the mother, she does not consider that the work that the mother will need to undertake will be a short piece of work due to the very difficult life experiences that the mother has had. She considers that the work is likely to take several months if not years. In the Guardian's view, it may be at least 6 to 8 months before you would have any indication as to whether the mother was successfully engaging with the therapeutic process and benefiting from it. In the light of this, she felt that a two-month adjournment of the proceedings would not give any more useful information in relation to the mother.
45. In answer to a question from me as to how the mother could regain the trust and confidence of professionals working with her, the Guardian confirmed that this would be very difficult and would involve professionals being able to cross check information with each other as to whether there has been any changes in her openness and honesty. When I asked her for timescales before she could be confident in mother presenting an open and honest picture, she put the time estimate at 1 to 2 years.
46. The Guardian was asked questions in relation to the father. She confirmed that she had left the father in no doubt at all as to the seriousness of the issues in relation to his daughter when she had spoken to him in the court precinct in April 2015.
47. She confirmed that she understood that adoption was clearly a last resort option for EN and it was put to her that the information in relation to the father was insufficient on which to make such a serious decision. She told me that nothing she has learnt through her own enquiries or has heard through the evidence in court leads her to conclude that she would learn anything more from any further assessment of the father. In her view, there is a significant amount of information about the father and his capacity to parent EN. She does not think any further assessment is necessary.

THE LAW

Threshold

48. Before the court can consider making any public law order, it must be satisfied that the threshold criteria pursuant to S31 (2) of the Children Act is satisfied. I have already made findings in relation to the threshold. Those findings shall be amended to remove the reference to domestic violence in the relationship between these parents but the additional findings in relation to the father shall be added. The threshold is plainly crossed in a number of serious areas.

Welfare issues

The approach to the application for a care order

49. The finding that the threshold set by s.31 (2) Children Act 1989 is satisfied is the gateway to the making of orders in respect of these children. Within the care proceedings, in determining the appropriate order the court must follow the approach set out in s.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. In determining what is in a child's best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child's welfare.
50. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.
51. In addition to those statutory provisions, the court must also have regard to the Article 8 rights of these children and of their parents and must endeavour to arrive at an outcome that is both proportionate and in their best welfare interests.

The approach to the application for a placement order

52. In the recent case of Re R (A child) Neutral Citation Number: [2014] EWCA Civ 1625 the President considered how recent case law had developed and been interpreted in relation to consideration of adoption plans for children. He confirmed :-

"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. "

53. He also emphasised that the law and practice are to be found definitively stated in two cases: the decision of the Supreme Court in re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of the Court of Appeal in re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035. I am very familiar with both of these cases and have considered them again when reaching my decision for this child.
54. The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child's welfare, "nothing else will do". As Baroness Hale of Richmond said in Re B, para 198:

"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."

55. This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

"family ties may only be severed in very exceptional circumstances and that 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. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."

56. The President also confirmed that where, in an application for a care order, the plan is for adoption, the court must have regard not merely to the 'welfare checklist' in section 1(3) of the 1989 Act but also, and even if there is no application for a placement order, to the 'welfare checklist' in section 1(4) of the 2002 Act: see also In re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31.
57. At the end of the day the court's paramount consideration, in accordance with section 1(2) of the 2002 Act, is the child's welfare "throughout his life."
58. He reiterated that Re B-S did not change the law but set out the core requirements when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order.:-

a. First, there must be proper evidence both from the LA and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option

b. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge …

c. The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option."

59. He considered how the court should determine the "realistic options" and cited with approval the words of Pauffley J in Re LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam), para 40, "the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched."

Discussion

60. I have considered all aspects of the welfare checklists in both the Children Act and the Adoption and Children Act. Some aspects are more relevant for EN than others.
61. EN is too young to express her own wishes and feelings but I have no doubt at all that if she were able to tell me what she wanted, it would be to be safe and well cared for. I am sure that she loves her mother very much and indeed the quality of her contact with her father has been positive. However she would want to receive consistent and reliable care from each of her parents or carers and to know that she will be protected in their care.
62. Section 1(3) (b) requires the court to consider the children's physical, emotional and educational needs. EN has similar needs to other children of her age. However she was noted to be clumsy and will therefore require a higher degree of supervision. She needs to be protected from physical injury both inflicted upon her or inflicted upon others in her presence. In terms of her emotional needs she needs to have consistent and reliable carers and she needs to have empathic care from carers who are able to understand and take into consideration how EN may feel about things. She has already spent eight months in foster care. She had no contact at all with her father for some seven months of that time. The world must already be a very confusing place for EN. She needs her next placement to be one in which she can invest and emotionally settle.
63. Section 1(3) (c) requires the court to consider the likely effect on EN of any change in their circumstances. There is going to be a change of circumstances for EN, no matter which option I decide upon. She will either move on to a new adoptive placement, or be placed with her mother or be placed with her father. Each of those will require careful management and planning and EN will need reassurance. What I am clear about is that the change that is envisaged for EN needs to happen as soon as possible. EN is at a critical age in her development and needs to be able to settle and invest in order to achieve her developmental potential.
64. Section 1(3) (d) requires the court to consider the children's ages, sex, background and any characteristics of theirs which the court considers relevant. I have already considered the relevant aspects of EN's age, sex and background and her general characteristics above. The circumstances that have led EN to being in LA care make it all the more crucial that she now receive consistent, focused, and empathic care throughout the rest of her childhood.
65. Section 1(3) (e) requires the court to consider any harm which the children have suffered or are at risk of suffering. EN has suffered physical and emotional harm. Her mother has failed to give a consistent explanation to enable appropriate work to be done with a view to EN being cared for by her mother again. Her father has failed to engage in these proceedings and has failed to have any contact with EN. I find that she is at risk of suffering further harm of a similar nature were she to be cared for in the future by either of her parents.
66. I have considered whether there is any further work or support that could be done with her parents to minimise or manage this harm. In the light of the mother's dishonesty, I find that it would be impossible for professionals to work with her to ensure EN's safety and well-being. The mother's accounts simply could not be relied upon as being honest and accurate. I agree with the Guardian that it would be many months if not years before the mother were able to demonstrate to professionals that she was able to work in an open and honest way.
67. I am not at all convinced that any further work could be done with the father to minimise or reduce the risks to EN. His significant failure to protect her from harm in the past, his failure to engage in these proceedings and therefore to show an interest in her well-being and his inability to recognise relationships that he has that may pose a risk to EN gives me considerable cause for concern. He would need to have demonstrated recognition of the harm that he has caused so far and his failings as a parent both with EN and historically. He did not even begin to demonstrate any recognition of such problems. The potential for him to change his view and approach to parenting therefore seems to me to be extremely poor. As I have already observed, he was unable to demonstrate any empathy at all for EN and how she would have made sense of the removal from her mother and the loss of her father which was almost simultaneous.
68. Section 1(3) (f) requires the court to consider how capable each of these children's parents are of meeting their needs. To a large extent I have considered the capabilities of the parents when I have considered some of the other aspects of the checklist. In my view neither parent is capable of meeting all of EN's needs. I have no doubt at all that her mother loves her very much and she is indeed her "miracle child." If love was all that EN needed, then I am sure that her mother has plenty to give her. However EN needs far more than that, particularly given her life experiences to date.
69. Her father has simply not demonstrated any capability at all in terms of meeting EN's needs and whilst I am told by the mother that the father is a "good father" is he has yet to demonstrate such attributes. He has not demonstrated with any of his children that he is a capable and committed father.
70. As there is an application for a placement order S.1(2) Adoption and Children Act 2002 states that the court's paramount consideration must be EN's welfare throughout her life, and that the court must have regard to the welfare checklist set out in S.1(4). A number of the matters in S.1 (4) replicate the factors to which the court has already had regard under the CA 1989. However, there are two very important additional factors to which the court must have regard and they are :-

S1 (4) (c) the likely effect on the child (throughout her life) of having ceased to be a member of the original family and become an adopted person

S.(1)(f)The relationship which she has with relatives and with any other person in relation to whom the court considers the question to be relevant, including –

o the likelihood of it continuing and the value to the child of it doing so

o the ability and willingness of any of the child's relatives to provide her with a secure environment in which he can develop and have her needs met

o the wishes and feelings of the relatives

The realistic choices

71. The choices for EN, in truth, are severely limited. Either I should delay the final decision to enable either or both parents to have the opportunity to demonstrate that they can acquire the skills necessary to enable them to care for EN or EN should be permitted now to move to a permanent, adoptive home.
72. The only other possibility is that EN might be placed in long term foster care. Long term foster care is an extraordinarily precarious legal framework for any child, particularly one as young as EN. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. The mother's own childhood provides a stark and distressing example of that. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. A long term foster child does not have the same and enduring sense of belonging within a family, as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability, and enduring quality of his placement as can a child who has been adopted.
73. I start from the general premise that children should wherever possible be brought up by their birth family. I have no doubt at all that EN's mother loves her very much and if that were all a child needed, the she would be well provided for. As Lord Templeman memorably put it in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, at 812,

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities can not improve on nature.'

74. I know that EN would be loved if she were cared for by her mother and I am prepared to accept that the father also loves EN although he has struggled to demonstrate that as fully as he could have.
75. As I have already stated, neither parent seeks to persuade me that there should be an immediate return, each parent's proposal involve an adjournment of some time for that parent to demonstrate an ability to meet EN's needs. If there were a reasonable prospect that such an adjournment would lead to a positive outcome and better evidence then it would no doubt be in EN's interests to allow that delay to ensure that those options were more fully explored. However, when I apply the welfare checklist as I do, I am far from satisfied that placement with either parent is a realistic option and therefore that delay would not serve any purpose. I am satisfied that there is sufficient evidence before the court today to enable these decisions to be reached.
76. In my judgment EN would be highly likely to suffer further significant harm were she to be cared for by either of her parents. This harm is likely to be both physical and emotional.
77. The disadvantage of making a placement order is that EN will be deprived of an upbringing within her natural family. She will not be brought up by a mother who is obviously able to demonstrate emotional warmth and affection for her child. It may be that in future EN will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. Experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated.
78. The advantages of a placement order are many. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his / her development. They will protect the child from harm of whatever kind. The overwhelming probability is that they will be able to provide her with the priceless gift of a happy, secure, and stable childhood from which she will derive life-long advantages.
79. Overall, I am entirely persuaded that the course suggested by the LA and supported by the Guardian is the one which best accords with EN's welfare needs. I therefore approve the care plan and make a care order. The Social Worker's Annexe B Report is a full and thorough document which persuades me, in combination with everything else, that EN's welfare will be safeguarded and promoted by the making of the placement order.
80. I therefore dispense with the mother's and the father's consents to a placement order pursuant to s. 52(1) of the Adoption and Children Act 2002 on the basis that EN's welfare demands that I should do so and authorise the LA to place EN for adoption.
81. I have considered the proposed contact arrangements for the child. I accept the LA analysis that direct contact with her parents would be likely to undermine any adoptive placement for EN and is likely to reduce the potential pool of available adopters. I therefore approve the plan for indirect contact only and do not make any order in respect of contact.
82. I give leave for a copy of this judgment together with my earlier judgment to be released to potential adopters for EN once a link has been made. I hope it will help them to understand the circumstances in which they came to care for her and in time will give them information that they are able to share with EN in an age appropriate way as she gets older and begins to ask questions about her background.