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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B and E (children), Re [2015] EWFC B203 (22 December 2015)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B203.html
Cite as: [2015] EWFC B203
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Case No: FC13C00158
IN THE FAMILY COURT AT EAST LONDON
11 Westferry Circus,
London
E14 4HD
Date: 22 nd December 2015
Before :
HER HONOUR JUDGE CAROL ATKINSON
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Between :
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London Borough of Croydon |
Applicant |
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- and - |
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MK (mother) PM (father) JM (aunt) Y (foster carer/ prospective adopter) B and E (children, through their Guardian) |
Respondents |
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Ms Ceri White for the London Borough of Croydon
Ms Bhari for the mother
Ms Harding for the father
Mr Geekie QC for the aunt
Mr MacDonald for the foster carer/ prospective adopter, Y
Mr Bain for B and E (through their Guardian)
Hearing dates: 7 th - 16 th, and 18 th December
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JUDGMENT
HER HONOUR JUDGE CAROL ATKINSON :
1. B and E are the 7 th and 8 th children of Ms K, (the mother). B is a 3 year old boy (b. 20/09/12) and E is his 2 year old sister (b. 17/11/13). They are the 4 th and 5 th children of their father, Mr M. They have been in proceedings for the whole of their lives, awaiting a decision concerning with whom they are to live and under what, if any, legal arrangement. The London Borough of Croydon (the LA) is the applicant authority.
2. In spite of the history of this case they have been fortunate to have one constant in their lives - their foster carer, Y. B was placed with her at 7 weeks and E at 1 day. As will become clear she has provided better than average care for them throughout and she seeks to continue to care for them. Their parents want them returned or alternatively placed with a member of the extended family, a paternal aunt ("the aunt" or JM).
3. The decision that I have to make is whether these children, either separately or together, should be rehabilitated to their mother and father, or placed with JM, or whether they should remain with their foster carer, Y. If I consider that the placement with their foster carer should continue I then need to consider whether their best interests demand that this arrangement is secured with an adoption order for B and a placement order for E, or whether a special guardianship order would suffice. There are other decisions to be made which flow from the different outcomes regarding contact and transitional arrangements but placement and the orders I must make to secure those placements are the major issues.
Decision
4. When this case was first transferred to me I considered it finely balanced. However, as the case has progressed over this last week my decision has become ever clearer. I have decided that these children must not be separated from each other or from the woman who has been their primary carer throughout their lives, their foster carer, Y. B's placement must be secured with an adoption order. So far as E is concerned, her welfare requires that I dispense with the consent of her parents in order that I can make a placement order anticipating that she too will have her placement secured through adoption. I do not intend to make formal orders for contact. Let me explain why.
Essential Background
5. The mother was born in the Democratic Republic of Congo. The father was born in Rwanda and came to the UK as a refugee in 1999. Both parents have indefinite leave to remain. B and E are both British citizens with British passports.
6. D, the mother's eldest child, was born in the Congo in August 1999 and moved to the UK with his mother. L, a girl, was born in February 2001. In May 2001, D was found at home alone (aged 21 months) and was taken into police protection in Haringey. Following D's return home notifications of domestic violence between the mother and her previous partner were received. The mother received a caution for assault on her partner in November 2001.
7. In October 2001, D and L (aged 2 and 8 months) were removed after D was found on the street on his own. M (a girl) was born June 2002 but was not removed from her mother's care. D and L returned to the mother's care in October 2002. However, Haringey Children Services continued to have concerns about the home environment and the mother's co-operation.
8. The mother and father commenced a relationship in 2003/2004. The family moved to Croydon in 2004. During 2004 and 2005 referrals were made concerning alleged domestic violence between the mother and father, physical abuse of D, the condition of the family home and D's development.
9. A (a boy) was born in April 2005 and W (a boy) was born November 2006.
Proceedings (1): D, L, M, A and W
10. In March 2007 the first set of care proceedings commenced when mother was admitted to psychiatric hospital. D, L, M, W and A were removed to foster care. The local authority case was based upon allegations of domestic violence, neglect and alcohol misuse, as well as mother's precarious mental health [I62]. L, M, W and A were returned to their mother's care in November 2007 and their case concluded with the making of family assistance orders in June 2008. D remained in long term foster care under a full care order made in August 2008.
Proceedings (2): L, M, A, W and C
11. By August 2008 the father was reporting a deterioration in the mother's mental health. Both parents alleged domestic violence against the other and the police were called to the family home on a number of occasions. The children's school reported concerns about attendance, the children being hungry and their poor presentation and hygiene.
12. In January 2009 the father assaulted the mother causing her to break her ankle. The mother disclosed this to the local authority in April 2009. During subsequent police investigations L disclosed that she, M and A were physically abused by the father. Bail conditions preventing the father having contact with the children were imposed. In May 2009 these bail condition were breached by the children staying overnight at the father's address. The children were removed and care proceedings commenced on 8 May 2009.
13. HHJ Atkins conducted a fact-finding hearing on 21 January 2010. He made a number of findings. In summary he found that the father had physically abused A, L and M by kicking them in the lower back with his shoes on and slapping the children in the face; that mother and father had been violent to each other on numerous occasions and both minimised the incidents; the parents neglected L, M and A and their attendance at school and nursery was poor; that mother and father had consumed alcohol to excess. The full Judgment is at I31-41, and the findings at I44-45.
14. C (a boy) was born during these proceedings in May 2010 and was removed at birth. Proceedings concluded on 22 December 2010 when final care orders were made for all the children. A placement order was also made in respect of C. C has subsequently been adopted. The other children remain in long term foster care.
Proceedings (3): B
15. B was born on 20 September 2012. On 25 September 2012 he was placed in a residential unit (St Michael's) with both his parents. During this assessment, the staff raised concerns that the mother and father were confrontational towards them and other residents; the mother was threatening and aggressive to staff when challenged; the mother became increasingly 'paranoid' as the assessment progressed; and the father attempted to control the assessment. Both parents struggled to take on board and comply with safety advice, for example in respect of bed sharing. They struggled with some basic tasks, such as feeding.
16. On 10 November 2012 the mother and father returned to the unit intoxicated. They were abusive and aggressive to the staff member on duty. The staff member was concerned enough to remain on duty all night to monitor the parents. B was removed on 13 November 2012 and placed with Y. Care proceedings commenced.
17. The mother and father were ruled out as carers on 14 May 2013. At this hearing, the parents disputed the findings made in previous proceedings, denied the allegations of St Michael's, denied any ongoing violence or volatility in their relationship and minimised their alcohol use. On each point, the Court found against them; see I218-251 for the full judgment and I216-7, for the threshold which was found by the Court.
18. HHJ Atkins adjourned matters to allow the assessment of relatives (not including JM who was not put forward by the parents at this time). Between June 2013 and August 2013 the mother and father did not attend contact with B. In August 2013 the LA was informed that the mother and father had separated. Police records indicate that the police were called to four incidents between the mother and father between July and August 2013.
19. Proceedings concluded on 3 September 2013 when a placement order was made. B remained living with Y and was "placed" for adoption with her in July 2014. (Matching Panel reconfirmed the match on 10 November 2015 [F269-276]). Y made an application to adopt B on 22 October 2014 [B110a-z].
Proceedings (4), Croydon proceedings: E (and, later, B)
20. During the proceedings concerning B, it became apparent that the mother was pregnant again. She did not engage with ante-natal care during September and October 2013. On 10 October 2013 the mother was detained under the Mental Health Act. On 11 November 2013 midwifery services expressed serious concern about the mother's presentation, in particular her volatility and unpredictable mood.
21. E was born on 17 November 2013. The local authority initiated proceedings for an ex parte EPO on 18 November 2013. This was granted and E was removed. E was placed alongside her brother B, with Y, where she has remained. E has therefore been in her current placement since she was 1 day old.
22. A final hearing was first listed before HHJ Atkins on 8th May 2014 but had to be adjourned for the preparation of a Special Guardianship report of the aunt. At this stage the aunt was putting herself forward to care for E alone. The final hearing was re-listed to commence on 28 July 2014. It was adjourned on the first day as the mother had suffered a deterioration in her mental health and as a result lacked capacity; for some reason no-one had seen this coming and no litigation friend had been appointed.
23. Meanwhile, on 22 nd October, B's foster carer had issued an application to adopt B. By this time the aunt had changed her position with regard to B and wished to be considered as a carer for him too. She raised issues regarding the lawfulness of the decision making process with regard to B's placement for adoption and issued proceedings in the High Court for Judicial Review, amongst other things. Those proceedings were heard by Hayden J and were compromised. It was agreed that the adoption application for B and the care proceedings for E would be heard together. The parents would effectively be given permission to oppose and the aunt through that means would be able to make her application to care for B together with E. The hearing would allow a full welfare analysis to be conducted in respect of both children.
24. The final hearing took place in December 2014. HHJ Atkins decided that the children should be placed with their aunt in Belgium. At that point the children had only met her once, in October 2014. The adoption application in relation to B was therefore refused, B's placement order revoked as a result of which his care order revived. B reverted then to a child subject to a care order placed with his foster carer, Y. So far as E was concerned the applications for a care order and a placement order were dismissed; E remained in the care of the local authority under an ICO awaiting a further hearing. I am not clear why final orders were not possible. It does not matter. The foster carer, Y, issued her appeal on 2 nd January 2015.
25. A confusing history then follows in which it appears that the transition plan for transfer of these children to the care of the aunt was progressing in parallel with the appeal. I note that Y applied for a stay. It was opposed by all of the parties save the mother and refused by the court. What is clear, and I hope that I will be forgiven for saying is that the appeal proceeded at a snail's pace coming to a hearing on 24 th April with the judgment handed down on 11 th June 2015. The Court of Appeal overturned the decision of Judge Atkins - Re M'P-P (Children) [2015] EWCA Civ 584.
Current proceedings
26. The case was sent to the Family Division Liaison Judge to allocate for hearing. The matter was allocated to me in July 2015.
The law
27. I have taken some trouble to ensure that the law as it applies to the applications now before me is agreed by all of the parties. I am grateful to all Counsel in the case for their hard work on this. What follows then has been agreed by all Counsel in the case.
28. Threshold: the first issue for the Court to determine will be whether, in respect of E only, the threshold is crossed.
29. If the threshold is crossed then with respect to E, I have to consider whether or not to make care and placement orders to the local authority, or a special guardianship order to the aunt or Y. In making that decision the paramountcy principle applies and the no order principle applies. The Children Act (CA) 1989 s1 checklist applies. Further, because the care plan is one of adoption, so too does the Adoption and Children Act (ACA) 2002 welfare checklist.
30. With regard to B, I am considering Y's application for an adoption order and the aunt's application for a special guardianship order. As a result of the compromise reached in the High Court I proceed as if the parent's have been give leave to oppose the adoption. Therefore, the paramountcy principle applies and the no order principle applies. Both the CA 1989 and the ACA 2002 checklists apply.
31. In line with Lord Justice McFarlane's comments on appeal, the Court must be careful to address all issues in each of the checklists.
32. The ACA 2002 checklist is relevant also in determining whether to dispense with the parents' consent - something that I need to consider in relation to E before making a placement order and in relation to B before making an adoption order because leave to oppose is effectively granted. I can only dispense with the consent of the parents' if the welfare of each of the children demands it, pursuant to s52 ACA 2002.
33. I have been reminded of the case law on adoption. In particular that following the Supreme Court decision of In re B (A Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 2FLR 1075 and the Court of Appeal decision in Re B-S (Children) (Adoption Order: leave to oppose) [2013] EWCA 1146, [2014] 1 FLR 1035, the legal principles pertaining to care cases (and specifically those with care plans of adoption) have been definitively set out.
"An order compulsorily severing the ties between a child and her parents can only be made if 'justified by an overriding requirement pertaining to the child's best interests'. In other words, the test is one of necessity. Nothing else will do"
Re B (per Hale, para 215)
34. I do not intend to repeat the references set out for in the cases of Re R (A Child) [2014] EWCA Civ 1625, Re M-H (Placement Order: Correct Test to Dispense With Consent) [2014] EWCA Civ 1396, Re M (A Child: long term fostering) [2014] EWCA Civ 1406; [2015] 2 FLR 197. Suffice to say that I have read them all and bear them in mind. The cases support the contention, set out in the document in which the law has been agreed, that in essence in conducting a welfare analysis of what is in the best interests of the child, the Court must keep front and centre of its thinking the importance of family ties and must only sever those ties where the correct welfare analysis reveals it is necessary to do so.
35. Holistic analysis - The Court must conduct a:
"global holistic analysis of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare"
Re G (care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1FLR 670] . I note also the comments of McFarlane LJ para 50 in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882.
36. The parents have Article 8 rights to respect for family life with the children. Family life for the other protagonists in these proceedings is obtained by 'close personal ties' [ Singh v Entry Clearance Officer, New Delhi [2005] 1 FLR 308]. Y and the children have a family life and therefore their Article 8 rights are engaged; equally the children and their siblings have a family life and Article 8 rights are engaged. Whether the aunt has close personal ties and therefore a 'family life' is a matter of fact and one which I have not been invited to decide. I endorse the approach of HHJ Atkins (not criticised by the Court of Appeal) that Article 8 adds nothing to the domestic law already to be applied.
37. That summarises the law as agreed between the parties. I should add that nevertheless, just prior to the receipt of submissions I was delivered of a Bundle containing over 450 pages of authorities. I have not read them all and have limited myself to reading the excerpts of cases provided to me, going only to the cases where necessary to consider factual context.
38. I must make mention of Mr Geekie's submissions, on behalf of aunt. His written submissions devote the first 5 pages to a consideration of a number of authorities on adoption - some mentioned above and others not. I do not wish to do a disservice to his erudite argument, drawing upon international themes in order to emphasise the implications in a case like this of the non-consensual or forced nature of our regime for adoption. However, it seems to me that the thrust of the argument is simply that when a court is about to sever the legal relationship between a child and its family it must look carefully and cautiously at the impact on that child's life "over the coming decades". His argument re-emphasises that the "family" card is a strong one. Though he accepts that there is no presumption in favour of family.
39. To the above I add this:
i) The LA brings this case and it is for the LA to prove it on the balance of probabilities;
ii) In making my decision I must have regard to the whole of the evidence.
iii) The assessment of the witnesses is a matter for me.
40. I intend to summarise the essential evidence by reference to the facts/issues for determination in the case and within the welfare analysis. I will resolve any disputed facts at the same time. I turn first, however, to the threshold.
The threshold in respect of E
41. The threshold is uncontroversial. This applies in respect of E alone. The relevant date for consideration of the threshold facts is 18 th November 2013 when E was made subject to an EPO. The local authority schedule of facts and the parents' replies are to be found at A64-9, A82-7 of the Bundle.
42. The local authority founds its case on likelihood of harm as at November 2013 as a result of the following:
i) The mother suffers from an enduring mental illness which has a poor prognosis in terms of relapse particularly when non compliant with medication or abusing alcohol;
ii) As a result the mother has been admitted to hospital on at least 5 occasions since 2007 - March 2007, July 2010, September 2010, October 2013 and November 2013;
iii) When unwell the mother's behaviour is disturbed, she can be aggressive, her presentation is frightening to a child and she is unable to provide care;
iv) Both parents have abused alcohol - findings were made in that regard in B's proceedings - yet neither parent accepts the severity of the problem and has not sought treatment;
v) The parent's relationship is volatile and violent as demonstrated by the findings made in 2010 and mother alleges that she fled the father who was controlling and abusive toward her;
vi) Parents have failed to engage with the LA considering that they do not need assistance and they do not pose a risk to their children.
43. Both parents accept that the threshold is crossed on the basis of likelihood of harm at the relevant date. I confirm that I am satisfied that there is a clear evidential basis for those facts and that as a result the statutory threshold is crossed.
The evidence on welfare issues
44. The threshold sets the scene as at November 2013; over 2 years ago now. I turn then to the evidence gathered during the course of that 2 years concerning the parents and any changes that they have made, their current ability to provide care for B and E or either one of them and the ability of other carers to do so and crucially the effect on B and E of any move from the secure placement that they have been in for the whole of their lives.
Parents' relationship
45. There is no evidence of police call outs or referrals regarding incidents of violence since those leading to the findings already mentioned. However, when these proceedings commenced the parents were separated and the mother filed several statements accusing father of domestic violence and controlling behaviour towards her [eg C85-88, C121]. In the earlier statements she makes generalised comments and appears to be referring back to a time prior to the relevant date. However, at C214-217 she makes a specific allegation regarding a fight shortly after the hearing in December 2014 during which he was mocking her about the fact that the children were to go and live with his sister. She admits throwing water in his face. Mother has since suggested that they were actually reconciled by this time and she was a little confused and was over-reacting [C349/50].
46. The parents were certainly reconciled by summer 2015 when they asked the local authority for joint contact. However, the local authority asserts that outside court on 13 July the mother informed the parties and social worker that they had separated a few days before as a result of father's refusal to engage with marriage guidance and anger management [B279], a fact reflected in the separate contact arrangements drawn up [B288].
47. In her evidence the mother told me that the general allegations that she made against the father that he was a volatile, abusive and controlling man were untrue. Effectively her evidence was that she was separated from him at that time and her purpose in lying was to gain an advantage in the proceedings. The problem with that so far as the December 2014 incident is concerned is that it was she who was the aggressor so it seems unlikely she was making it up to make him look bad.
48. Father's evidence was that he has never been abusive to his wife. He insists that in spite of findings that he has kicked the children in the back he has only ever slapped L once because she came home late. He also seemed to deny saying in his evidence to Judge Atkins that he has punched his wife a couple of times.
49. The findings made earlier in the history of this case suggest that mother's generalised statements about the past were actually true. That means that she is not being truthful before me at this hearing. I caution myself that the fact that she is not truthful in this regard does not mean that she is untruthful throughout her evidence. Indeed, I consider it likely that mother was being truthful about the Dec 2014 incident in her original statement. It may seem a minor incident but it is an indication of how they continue to negotiate their relationship at times.
50. I am also quite satisfied that the parents continue to minimise the domestic abuse between them as evidenced by the father's denial of the facts already found and the mother's seeming retraction of historical matters and later position concerning Dec 2014. Indeed during her evidence mother joined with father's denials regarding past events by suggesting that he had not (as has been found) caused her to break her ankle. They continue to lack insight and betray no understanding of the potential impact of such behaviour on their children. In this regard they have not changed in the two years since the relevant date.
Parents' alcohol use
51. The parents both have historic positive tests from earlier proceedings and both had positive alcohol tests from January 2014 [see E25-47]. Both failed to file updating tests in April 2014 as ordered [B73].
52. Their current tests were received just prior to the hearing. Neither has filed hair strand testing as their hair was too short. I made it very clear at a previous hearing that liver tests alone were not sufficient.
53. Father's hair strand test is again positive for elevated CDT and GGT - the accompanying letter reports that the CDT result shows biochemical evidence of recent excessive alcohol consumption and the GGT result could be due to chronic excessive alcohol consumption.
54. Mother's result showed CDT at the normal level but very elevated GGT. There is no accompanying report. Dr Jones commented upon the significance of the GGT in her evidence stating that this could be explained by the mother's medication. However, she also made it clear that absent any hair strand tests the liver test alone is not supportive of a reduction in consumption.
55. The mother told me that she has not been abstinent but has drunk only occasionally and not to excess. The father states that he has not drunk to excess and denies the test results.
56. I am troubled by the lack of hair strand testing to accompany the liver tests. In circumstances in which I am satisfied that she was aware that it needed to be of some length for testing, the mother's explanation as to how she came to cut her hair causes me to question whether she is truthful about how much alcohol she has consumed of late. She is vague about how much she has drunk often emphasising that the children are not in her care - the implication being that it does not matter. On her own evidence she is not abstinent though maintains that she can be so. That is significant because the evidence of Dr Jones is that in order to avoid triggering her mental health problems alcohol should be avoided altogether. My clear impression is that she has little appreciation of the potential impact of alcohol and to that extent little has changed since she and the father returned to St Michael's intoxicated during their assessment to care for B.
57. So far as the father is concerned I am satisfied that the liver test alone indicates a continued misuse of alcohol. It is troubling that he is drinking at all when living with the mother. In the past it is something they have shared and it puts her at risk of doing the same with serious impact upon her mental health. In my judgment this shows a lack of insight on his part into the serious nature of her condition and the part that alcohol can play in her susceptibility to relapse.
Mother's mental health
58. The mother's mental health continues to be fragile. Following E's birth, and during the proceedings before Judge Atkins mother was again detained under the Mental Health Act in March - May 2014. A final hearing before HHJ Atkins was adjourned on 28 July 2014 as a result of mother lacking capacity. She was released on 4 August 2014.
59. On 17 January 2015, mother was sectioned again as a result of "non-compliance with medication as well as psychosocial stressors in her life" [E457]. It is not clear when she was released from hospital, but I do know she was in hospital under section but had capacity on 11 February 2015.
60. So it is then that the mother has lost and regained capacity and been detained under the Mental Health Act at least 3 times during the life of these proceedings. There has been no suggestion that she has lost capacity since proceedings were transferred to ELFC in July 2015.
61. There are two assessments by Dr Llewellyn Jones, adult psychiatrist, in these proceedings [E48-59, E204-8]. Mother is diagnosed with schizo-affective disorder by Dr L-J. Although the mother seemed well when assessed by Dr Llewellyn-Jones in early 2014 she remained, in the opinion of Dr L-J, vulnerable to relapse:
"[Mother's] condition is more than likely to persist. She has a severe mental health problem and has always struggled to engage with her treating team. She becomes behaviourally disturbed when she is unwell. She also has a drink problem and a history of a violent relationship that she struggled to leave for many years. I could not see that she would be well enough to care for a child as a single mother; she is extremely vulnerable herself." [E53]
On 18 June 2014, Dr Llewellyn Jones filed a response to written addendum questions of mother [E204-208] reiterating her position that mother is not able to care for E and that her mental health is again likely to deteriorate in the future.
62. Currently, she seems well, although the social worker, Ms Dafinone has given evidence that there was a period when her behaviour was suggestive of her becoming ill again [C323-4]. This was in July 2015 and coincides with a period during which she had not had her depot injection on time. This is confirmed by the CPN [E626-627].
Dr Jones
63. A new psychiatrist, Dr Jones, reported on the mother's mental health on 2 November 2015. She comments that when mother is unwell "this can globally and catastrophically affect her parenting ability" [E623] ; "her psychotic illness is incompatible with parenting" [E622].
64. She agrees with the diagnosis of schizo-affective disorder but also diagnoses her as suffering from 'harmful use of alcohol' [E622]. It is highly significant that when mother is non-compliant with medication she relapses fairly quickly and takes a long time to recover. In her oral evidence Dr Jones commented that although the mother has been medication compliant of late her engagement is erratic. The CPN evidence shows that there are frequent occasions when she has to be chased to have her injection. Dr Jones said that 13 days late for her depot injection was enough time to relapse. In respect of father, Dr J felt that the fact that he was drinking showed he has no insight into her condition.
65. I am satisfied then that the mother's fragile mental health means that she is at significant risk of relapse. Whilst she is medication compliant that compliance is erratic and even a delay in taking her medication can lead to relapse, especially if there is a series of cumulative delays. Father lacks insight into her condition as demonstrated by his drinking and the fact that he is seemingly unable to ensure that she attends for her depot appointments. Once again then little has changed since the relevant date.
Continuing lack of insight and inability to work with LA
66. Finally, it was clear from the evidence from both parents that they harbour a deep dislike and distrust for Croydon social services. The mother sought to suggest in her evidence that there were no problems identified in her parenting until she moved to Croydon. The history shows that this is not the case. The father made constant references during his evidence to Croydon social workers not being trustworthy. They both suggested that they have not been given any chance to show that they have changed by Croydon.
67. The inability of this couple to work openly, honestly and co-operatively with social services has been a constant feature of this case. The parents have struggled to take on board the criticisms of their parenting, largely because they still do not think those criticisms are warranted. This too has not changed.
The children: the evidence of Dr Bailly
68. Before turning to the evidence about the other potential carers for these children let me pause to re-focus on the two people who are central to my decision making and what the evidence tells me things look like from their perspective.
69. B has been with Y since he was 7 weeks old. Prior to that he lived with his parents in St Michael's. Y has described behaviour which may have been a heightened startle response following his placement with her. That may have been as a result of early trauma according to Dr Bailly but in any event that behaviour resolved by the time he was about 7 or 8 months old as a result of the stability, consistency of care and love that she has provided to him. So far as he remembers he has lived nowhere else. E has been with Y since she was 1 day old. She has therefore lived with Y and her brother for the whole of her life.
70. Dr Bailly, is a child and adolescent psychiatrist of some considerable experience. He has the advantage in this case of himself being a native French speaker. His report covers a number of areas including the nature and strength of the attachments of the children to all significant adults in their lives and with each other, their placement needs, and the advantages and disadvantages of a move in placement. His evidence has without doubt been extremely persuasive. His report is clear and detailed. He explains in the simplest and yet most powerful terms what the true implications of this move will be for these children and frankly how difficult it would be to deal with it.
71. At this stage I want to concentrate upon his evidence about the children, their attachments and the impact of severing those attachments. Dr Bailly has been criticised by the aunt and her legal team. In my view, without basis. However, I understand that criticism to extend to his evidence regarding the aunt's so-called attunement to the children. I will deal with those criticisms when I come to my own assessment of the aunt.
72. At E526-7 Dr Bailly gives as clear an explanation of attachment that I have seen for some time.
"Attachment describes the affective bond developed between the baby and its principle care giver, typically the mother, who in the best case provide the baby with the comfort, security and attentive responsiveness to its needs that make it able to interact appropriate with its environment....."
"When the carer's responses to the infant are consistently appropriate and helpful, the infant develops a secure attachment style - a feeling of security, of being understood and an ability to trust in others: a securely attached infant experiences their attachment object (carer) as a secure base from which to explore the world.......attachment style depends upon the infant's subjective experience of the carer, and not on the carer's qualities in an abstract way and continues to evolve over the course of the child's dependent life."
"Attachment style will become established as time goes on, provided it is not seriously disrupted. Disruption would constitute an emotional trauma for the child and his/her recovery from that will depend upon many different factors, including the age of the child, his/her psychological constitution and environmental factors"
73. Applied to these children he says this:
i) The central attachment figure for these children is Y and they are both securely attached to her - from their perspective she is their "mother" with whom they have lived safely and happily for the whole of their lives;
ii) The children have a "strong" bond and sibling attachment (which is different) to each other which should not be broken;
iii) The children did not begin to have contact with their aunt until a little over a year ago. That contact has been roughly once a month. During that time the children have developed a good and positive bond with JM but there is no evidence that they have an attachment to her.
This evidence is beyond dispute.
74. What would be the impact of severing this secure attachment to Y? In his report Dr Bailly says that this would be experienced by these children as an "extreme emotional disturbance", akin to "suffering a bereavement". This is not just any bereavement, however. We are contemplating the equivalent of the death of their mother and the only carer that they have known.
"Losing [Y] would represent a major emotional shock in the immediate sense and a major bereavement in the longer term; it will be the imposition of a trauma, that of losing one's mother, and working through this will be a major emotional task."
75. Dr Bailly emphasised that this trauma would be heightened by "the loss of their cultural references and the major challenge of linguistic disempowerment...". In his report he points out that the children's psychological development to date has been constituted in English. They have relatively advanced language skills and like to use verbalisation as a way of interacting with the world; this is valuable to them. He says that "they will be able to learn and function in another language but the loss to them of power and enjoyment, the effort required and the impact of the change on their capacities and development should not be underestimated."
76. In his oral evidence Dr Bailly was challenged with the proposition that the children's secure attachments will surely mean that they are better able to transfer those attachments to another carer. His answer to that was to say that this does not mean that it will be easy. That is not the way round to look at it, he told me. The severing of a secure attachment is a traumatic event for any child; the fact that a child has experienced separation in the past amplifies the trauma but conversely the fact that a child has not yet experienced separation does not remove it.
77. It was put to Dr Bailly on behalf of the aunt that there were preparations that could be made which would assist the transfer of the attachments and ameliorate the impact on the children such as - building trust between the adults, the transfer of treasured objects, careful preparation, a joint message that it is all going to be ok. Dr Bailly agreed that these seem like sensible things to do to us as adults but they do not enable the child to avoid the trauma. Telling children even explicitly that things will be ok will not necessarily mean that they will be or that they will believe it to be so or even understand the suggestion. "Attachment is not logical - like love for a partner" he told me. He certainly did not suggest that these factors would, as Mr Geekie QC submits, produce "a likelihood of a successful move".
78. On the contrary, Dr Bailly considered that after breaking their secure attachment to Y "there is a serious risk that they will be unable to re-form their attachments". This, he said was as a result of a combination of factors - the enormity of the loss, the real sense of bereavement, the additional loss of everything familiar except each other, the linguistic disempowerment and separation from their community and the lack of attunement of their new carer (to which I shall return). Accordingly, Dr Bailly also considered that there is a greater risk of breakdown of the placement in Belgium than of placement breakdown with Y under an adoption order.
79. Finally, by graphically describing what would have to happen in order to sever the secure ties between the children and Y, Dr Bailly re-emphasised the impact of the losses in my view. Post move there could be no contact, he told me. "The loss of Y will be a major trauma and this task of re-investment in someone else would be beyond most children's capacity if they remain in direct contact with this person. It will present them with a confusing situation in which feelings of mistrust, disappointment, rage, and helplessness will flourish" He told me that if I was to move these children then their new carer had to become their main object and for them to have contact with their previous object would be "almost cruel".
Y
80. Y was not just an impressive witness; she is a very impressive woman. She has demonstrated herself throughout these proceedings to be an enormously insightful parent for these children and a sensitive and open-minded guardian and promoter of their family ties. It is unusual indeed that as the person vying for their care as a prospective adopter she should be so supportive of preserving family connections; even more so given what she has been through in the last year. Since 2013 so far as she and B have been concerned he has been in her care on the basis that he was to remain there. The decision in December last year must have been devastating and yet she has shown a level of commitment to the needs of these children that is virtually unparalleled in my experience. She has consistently put the needs of the children and their welfare first in my judgment quite irrespective of the emotional impact upon her of what she has had to do. In the court of King Solomon she would be the woman giving up her child in order to save its life.
81. I do not intend to repeat the positive endorsements regarding her capabilities set out in the Annex A report, statement of Ms Royle, statements of Ms Dafinone, report of Dr Bailly and Guardian's final analysis because there is not a suggestion from anyone in this case that she is anything other than highly capable. Dr Bailly considered that Y was particularly attuned to the emotional states of B and E and insightful of their thoughts and feelings. Just as she told Judge Atkins a year ago, these children have lived as part of her family for the whole of their lives and are well integrated into that extended family.
82. I attach great significance to the efforts that have been made by Y to ensure that there has been regular contact between B and E and their natural family - particularly their siblings.
83. Much has been made of Y's late presented position regarding post placement contact for JM. Her position that she would support ongoing face to face contact post placement, even post adoption, has been clear throughout. However, it was not until the hearing itself that the precise details of her proposals were made available in writing. I intend to deal with this issue under a separate heading. Suffice to say that I do not consider that this reflects badly upon Y and I certainly do not accept the unfortunate assertions made by the aunt that Y's position on contact constitutes a "betrayal".
The aunt
84. The aunt is a young woman who has herself shown considerable commitment to these children. I accept that she is a fully competent, caring and loving mother to her own child and that she has a suitable and comfortable home. I believe her when she is recorded as saying that these children would be loved and cared for by her as if they were her own; they are her family and therefore she loves them. I agree that she has faced significant hurdles as a result of the local authority's failures as conceded elsewhere and I agree that the position taken by Mr MacDonald in cross examination regarding her "credibility" was unnecessary. What is more the suggestion that she was unable to recognise the need to impose boundaries on contact with her brother is not supported by Y whose evidence was that she accepted that the aunt had put in place what she could to ensure that the children were safe from the parents.
85. I note that she has an extensive family network. She has appended to her statement a schedule of relatives and I note that a placement with her would permit these children access to relatives to whom even their siblings have no contact.
86. Having said all of that and without wishing to be critical of the aunt who has put so much energy into securing the placement of these children with her, I am afraid that I consider that she has no real appreciation of the extent of the trauma that a move will inflict upon the children. That lack of insight means, in my view, that she is unlikely to be able to overcome the difficulties that the children will experience thereby adding to their trauma. Her inability to grasp the extent of this problem is rooted in her belief in "family".
87. JM holds "family" as "sacred" and she has a passionate belief that by simply being a member of the family she is endowed with some additional capability which will smooth the progress of these children following a major trauma. In her written evidence at C181 she sets out her views that "family and blood ties come first" ;"the long term benefit of a family placement" she says outweighs "potential short-term upheaval"
88. I refer to the evidence from Peter Horrocks (PH), ISW. In June 2014 when seeking to care for E alone she explained this by saying that she was "anxious that B's development would not be unsettled or disturbed, she also recognised that he has developed a close attachment to his current carer, who is planning to adopt him..."
89. By Nov 2014 the position had changed. PH reports her as saying then that for her "the importance of the children being looked after by family members is the most relevant factor in deciding what is in the long term interests of children - she described as "primordial" her belief about the importance of children growing up within their family and she would see this as a sacred principle"
90. They discussed possible difficulties and she agreed that they would become upset and distressed; significantly she made a comparison with the separation between a child and a parent, when the child is placed in a nursery for the first time. PH recommended that she would be able to care for B and E together.
91. In his oral evidence before me he withdrew that recommendation - largely as a result of reading Dr Bailly's report about the trauma that these children were likely to suffer on being moved. He went on to comment that he considered it significant that JM did not react to Dr Bailly's evidence by stepping away herself. He conceded that he had not given her the opportunity to comment further or seen her since Dec 2014 but maintained nevertheless that from a social work perspective it seemed to him that her very strong belief in the importance of family had become the focus for her.
92. Mr Geekie QC invites me to reject that updating evidence from PH arguing that he has stepped outside of his brief. I consider that he was entitled to revise his opinion in the light of the evidence from Dr Bailly and he was likewise entitled to comment, having assessed this lady, that her desire to continue in her applications, given what he knew about her, must be motivated by her belief about "blood ties". I do not have to accept his assessment but I have to say that the evidence supports what he has said.
93. Another example is the aunt's inability to appreciate the impact that loss of their language will have on the children. The aunt does not speak English; she has no need. Except for this, with these children comes an urgent need to be able to speak some English. So I was baffled by her failure to even embark upon English lessons in the time that we have had since the Judgment of Judge Atkins - a year. The aunt lives in the Flemish speaking part of Belgium. I can see from the email exchanges from the Belgian equivalent of social services that there is a resistance on the part of the local services to use French, let alone English. The failure to seek even the most basic language tuition will surely prevent the children from being able to effectively communicate their anguish to her and demonstrates very clearly her lack of insight into the extent of this problem.
94. Finally I have the views of Dr Bailly regarding the aunt. I am invited to reject his evidence on this issue for a number of reasons. The first is that he spent insufficient time with her and assessed her in circumstances which were "sub-optimal". The result has been unfairness to her says Mr Geekie QC on behalf of the aunt. I do not accept that has any basis at all. In the first place, Dr Bailly is an expert with considerable experience. I believe him when he tells me that he recorded the time spent with the aunt and his record shows 2 hours as opposed to the 45 mins that she suggests. More importantly, however long it was, he spent the time that he considered was necessary in order to do the job. The same applies to the conditions in which he assessed her. It is true that he was able to see Y in the comfort of her own home where the children were in surroundings very familiar to them, whereas he observed the paternal aunt surrounded by three demanding children at her Croydon hotel. Dr Bailly's response was to reject the suggestion that these circumstances were in any way "sub-optimal" by observing that one can often gain even more information about someone by observing them in difficult and challenging circumstances than in comfortable circumstances. That seems entirely logical to me and I accept what Dr Bailly says.
95. Dr Bailly comments that he had "not received the impression that she thinks insightfully about B and E". He explained that his assessment was based on what he had read about the aunt and his discussions with her. He thought that whilst she is well placed to provide warm and appropriate care for children who have not faced adversity it was unclear whether she had the necessary attunement to meet the fall-out from the disruption likely to result here.
96. He did not ask her a direct question about the trauma they would likely suffer and how she would deal with it. He quite deliberately did NOT ask the direct question considering that this was such an important issue that he would expect her to raise it herself. However, she did not and that influenced him in his assessment. He is criticised for this approach. Was it unfair? He did not think so and nor do I. PH had already asked the direct question and I have set out JM's response. This is a perfectly legitimate way of going about the assessment it seems to me. What is more, his conclusions regarding her so-called attunement to the emotional needs of these children are entirely in line with the other evidence that I have recited.
97. The guardian adds further weight to this evidence when she records her conversations with the aunt. The guardian did ask the direct question: "I asked her how she would manage - she said love would conquer all".
98. Finally JM's evidence in the witness box added weight to these conclusions. Three areas in particular. Firstly she said "I think it will not be easy for the children or for me either - they are already used to W and me - even so losing Y will have an impact - all that I know that with the love affection and safe environment - that will help them to conquer that stage -if this will not work I will have to undertake by myself - I will use professional intervention IF REQUIRED" (my emphasis)
99. Secondly, in response to questions put by Mr MacDonald she revealed her inability to really understand the strength of the attachment that these children have to Y, irrespective of the absence of blood ties, and the importance she has to them. Here is one such exchange:
Q: Do you understand from B and E's point of view Y is their mother?
A: their foster carer
Q: just a foster carer?
A: she has played the role of a mother - you can consider it like that
100. Finally in response to questions put by the local authority she was asked what contact she was seeking if the children stayed with Y. Her answer was contact "for nights and days and during the holidays. If they could come to Belgium. If I could have all of the children at Christmas to have a family party - for Xmas eve. Otherwise once a month and half of the holidays." This is an astonishing level of contact post placement - whether under a SGO or adoption. It is not reflective of the relationship she has with them now, let alone going forward should they stay with Y. This is a lady who has only known these children for a year. From the children's perspective, although I do not doubt that they have enjoyed their time with her, she is of limited significance.
The Guardian
101. The Guardian supports the LA and Y and recommends that the children should remain with Y and be made subject to adoption orders. I do not intend to rehearse the reasons she sets out fully in her report.
102. In her oral evidence she dealt largely with the issue of contact to the aunt in the event that the children remained with Y. On contact to JM she observed:
i) JM is still a "stranger" in one sense and the purpose of contact would be to allow the children to keep her in mind - hence she supported a reduction;
ii) She did not think that there was a need for an order. An order is inflexible, inviting of further litigation and simply not necessary;
iii) On the issue of continuing overnight stays she said that she had thought that this arrangement was set to continue and agreed that given the pattern of regular overnights for the last year might be confusing for the children if it does not. Nor did she think that there was an absolute need for Y to be present. However she went on to comment that once the adoption order is made it is for the adopter to decide and that contact needed to be negotiated.
iv) At the end of the day contact had to be what best serves the interests of children and Y knows them best and is committed to open adoption so it is for her to decide.
103. When pressed to make a recommendation she said that before contact there needs to be a meeting to resolve tensions which have arisen during this hearing. From there contact arrangements and possibly overnight could develop once that meets the children's needs.
The welfare assessment
104. The welfare of these children is now paramount and given that one of the realistic options for consideration is permanent separation through adoption I remind myself that when I turn to the second of the two welfare checklists, I will be considering their welfare throughout their lives. Starting with the checklist set out in s.1 CA 1989.
The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding)
105. E and B are both too young to express their wishes. However, these children view Y as their "mother"; it is the Guardian's view that they are highly likely to wish to remain in her care. I would also expect that they would wish to remain with each other.
Age, sex, background and any characteristics the court considers relevant
106. B is a 3 year old boy of Congolese and Rwandan descent. It is relevant that so far as he is concerned he has lived his entire life in London in the care of Y to whom he is now securely attached. Latterly he has lived with her in expectation of permanence in her care. He has been joined in that placement by his sister, E.
107. E is a 2 year old girl. It is equally relevant that she too has lived her whole life in a happy, secure and loving home with her brother B and cared for by one key person, Y. Y is her main attachment figure - her mother figure. Dr Bailly noted her to be happy and well balanced giving the impression of self assurance and confidence. He considered her to be possibly slightly ahead in cognitive development.
108. Both children are living as part of the extended foster family. They are English speaking and they have grown up understanding life in the English language and English culture. They are both advanced speakers and so language has real relevance for them.
109. They are part of a larger sibling group with whom they have a close relationship. It is of relevance that their relationship with their siblings - especially A and W has been supported and facilitated by Y.
110. To date they have had exposure to their Congolese and Rwandan heritage through their contact with their parents and latterly through contact with their aunt. That exposure to their culture of origin is no different to that of their siblings.
Physical, emotional and educational needs
111. B and E both need security, stability, love, attention, insight and understanding. They both need final decisions to be made as to their placements as a matter of urgency.
Likely effect of any change in circumstances
112. Dr Bailly considered that a move from Y would be devastating for these children; they would both lose their main object of attachment, their mother tongue, their "family", community and cultural references. I have already set this out at length and will not repeat the serious consequences identified by him. I accept his evidence in this regard.
113. They will also suffer a reduction in their contact to their siblings because even on her own evidence the aunt is not able to facilitate the frequent and relaxed contact arrangement created by Y for the children. The arrangements made by Y for the contact between B and E and their siblings creates a situation in which they are as close to "growing up" beside them as they can be when not sharing a home. B and E would not only lose this but there is a real risk that whatever contact is arranged by JM going forward would be of ever diminishing value as their English disappears. This is another significant loss in my view.
114. If they remain with Y there will be a reduction in their contact to their parents and to their aunt. The nature of that contact will change by virtue of the decision that I make as to their placement and the legal status afforded to it. That too will be a loss to them.
Any harm that the child has suffered or is at risk of suffering
115. E has not suffered any harm. There is a real possibility that B suffered some harm whilst in the care of his parents and exposed to their behaviour in St Michael's.
116. I consider that both children would be at risk of harm were they to be returned to the care of their parents because as set out above, little has changed in the 2 years since the threshold was crossed.
117. The breaking of the secure attachment between these children and Y will cause them harm. That harm will be compounded by loss of language and culture with the result that I am satisfied there is a real risk that they will be unable to transfer those secure attachments to their aunt. This is not a short term problem; it will impact upon them throughout their lives. With this comes a risk of placement breakdown.
How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs
118. For the reasons set out above I consider that neither of the parents is capable of providing for the needs of these children. In short, nothing of any real substance has changed for them in the 2 years since the threshold was crossed.
119. Both Y and the aunt have a proven track record of caring for children. Y has cared for these children and no suggestion is made that she would be unable to do so. She has proven herself not only able to meet their day to day needs but she is insightful regarding their emotional needs and she is respectful of their family ties. I am satisfied that she is genuine in her intent to support that connection and I consider that she will do so.
120. Whilst I have no doubt that JM is a capable mother for her own child and that she could be an equally capable mother for B and E in ordinary circumstances, I am satisfied that, for the reasons I have set out, she is will not be able to deal with the emotional fall-out from their separation from Y. In my assessment it is likely that she will not even recognise the true extent of it. This will leave these children traumatised and without their emotional needs being met.
121. I turn now to the checklist in the 2002 Act and remind myself of the need to keep in mind that in this part of the assessment I must endeavour to stare hard into the future considering the children throughout their lives.
The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding)
122. Dr B confirmed that as with all children placed outside of their natural family there will come a time when they question why that was. His evidence was that this question would come even if placed with their aunt. However, he also observed that such is the strength of their attachment to Y that if placed with their aunt they are likely to question why they did not remain in Y's care.
123. Dr B did not consider it likely that they would be troubled in the longer term by the fact that their aunt has had a positive assessment in these proceedings. Neither do I consider it likely that they will feel aggrieved that the history of these proceedings has somehow precluded their aunt from successfully applying for them to be placed with her. Whilst I do not wish to suggest that this has not been a frustrating process for all concerned, that is a very adult perspective. There is absolutely no evidence to suggest that coming from the settled and secure base which Y offers them there is any risk that this issue will disrupt their placement with her in the future.
Age, sex, background and any of the child's characteristics the court considers relevant
124. I repeat the observations made above.
The child's particular needs
125. Their needs are as set out under paragraph 111 above.
126. Later in their lives they may well have a greater need to be aware of and connected to their culture of origin. Their aunt has a strong sense of identity and the role of identity in the children's lives. It has been suggested that this essential link can only be provided by living with her.
127. Dr Bailly gave evidence on this issue. It was suggested the children would gain a sense of connection with the past and that this would enrich them. He took exception to the word "enrich" - it would be a different life, he said. He denied that he was saying that he did not attribute any importance to it but observed that the culture of origin is more important to the adults; from the point of view of the child this is not the same thing. He considered that for the child who grows up within their African culture, it is an essential part of them. That is not this case here, however. Here their African heritage is a small, though important, part of their identity. These are Black British Londoners, he said, we cannot re-write their history. Their cultural identity comes from how they have lived their lives to date. He said that they will discover their cultural roots when they are older and he was satisfied that their needs in this regard could be satisfied by them maintaining that link through contact. I accept his evidence on this.
The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become and adopted person
128. The children will suffer a loss if they are adopted, in that they will cease to legally belong to their birth family. I do not underestimate the importance of family. However, in this case the severance of those ties will not be so brutal because I am quite satisfied that the actual relationships with parents, aunt and siblings will continue post-adoption as direct contact is supported by Y. This goes a long way to ameliorating the loss of legal links. What matters is the actual relationship they have with their birth family and this will continue.
129. In the case of the siblings, there will be far more frequent and close contact if the children stay with Y which is likely to promote lifelong closeness between the sibling group.
130. On the other side, Y will become their 'legal' as well as 'psychological' mother, Y's children will become B's and E's brothers and sisters and Y's extended family will become their extended family. The children will gain from the ability to further cement their attachment relationship with Y with its attendant benefits for their development and security. They will continue to develop within their Black British culture.
Any harm which the child has suffered or is at risk of suffering
131. As I have already observed the severing of their secure attachment to Y would have life-long consequences for them.
The relationship the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including
i) the likelihood of any such relationship continuing and the value to the child of its doing so
132. I have detailed above the relationships that each of these children have with Y, JM, their parents and their siblings respectively. There can be no doubt that the primary relationships are those that they have with Y, each other and their siblings. They enjoy relationships of a different quality with their parents and JM.
133. There is enormous value to these children in those primary relationships (with each other, Y and their siblings) continuing. They will continue if they remain with Y. What is more, the relationships that they have with their parents and the aunt will be maintained through the contact.
ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and other wise meet the child's needs ;
134. The parents and JM are keen to care for the children. A placement with the parents would not be safe. A placement with JM brings risks to their emotional development as set out above.
iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child
135. The birth family feels very strongly that the children should be placed within the family. They indicate this desire has a cultural component in that children of African families unable to be brought up by their parents would always be cared for by relatives. Of course the elder 5 children are in long term foster care and are not being cared for by an extended family member.
136. Y feels equally strongly that, as a result of their attachment to her and the length of time she has parented them, it would be detrimental in the extreme for them to be removed from her care. I am satisfied that this is borne out in the evidence that I have heard from Dr Bailly.
Range of powers available
137. I move on now to my 'holistic analysis' of each of the 'realistic' placement options bearing in mind at all times the 'proportionality' of any order as regards the Article 8 rights of those affected. I need to step back and with reference to the factors set out above look at the case as a whole and determine the course that best meets the needs of these children throughout their lives. What then are the realistic options for these children?
Discussion and final analysis
Separation of siblings
138. Whilst I have examined the welfare needs of each of these children separately at every turn there can be no doubt that their welfare needs demand that they should remain together. That is one issue upon which everyone is agreed. Their relationship as siblings will be an enduring one and it should not be interrupted if it does not have to be.
139. The evidence in relation to the various realistic placement options is the same for each of these children. Crucially, the evidence of the impact of separation from Y and the extent to which the trauma which would follow could be ameliorated is the same for both of them. Add to that the importance to each of them to remain with the other and I am satisfied that it is in their interests to remain together.
Placement with their parents
140. These children cannot return to their parents; they would be at risk of harm. I have already set out why that is in this Judgment. In those circumstances return to their care is not a realistic option for them.
Placement with aunt under a SGO
141. The benefits of being cared for by their aunt would be:
a. remaining within their birth family and having access to extended family members all over the world;
b. easier access to their culture of origin;
c. continued contact to their siblings;
d. the placement is supported by the parents.
142. The disadvantages of a placement with the aunt would be:
a. inflicting a major trauma on them as they suffer the severing of their secure attachment with their primary attachment figure;
b. the loss to them of their cultural identity as Black British children, their language and the wider foster family/ community;
c. a reduction in the frequency and quality of contact with their British siblings;
d. the real risk that they will not transfer that attachment impacting upon their lives through into adulthood;
e. a greater risk of placement breakdown.
Placement with Y
143. The advantages of a placement with Y would be:
a. No major traumatic event for the children who would then continue to reap the benefits throughout their lives of having an undisrupted secure attachment to their major attachment figure;
b. The retention of everything familiar to them and little change in their lives;
c. Continued frequent, close and relaxed contact with their birth siblings and the maintenance of that relationship;
d. Continuing face to face contact with birth parents to support their identity needs;
e. Continuing contact with the paternal aunt and cousin W in circumstances in which I am satisfied Y will ensure is natural and relaxed as possible;
f. Access to their culture of origin and other languages through direct and indirect contact;
g. a lesser risk of placement breakdown.
144. The disadvantages of being cared for by Y would be:
a. Living apart from their birth family, including, if this is to be an adoptive placement the legal severance of that relationship - though in practical terms these children will continue to know their parents and aunt through direct contact;
b. More limited exposure to their culture of origin;
c. the placement is not supported by the parents.
145. Given everything set out above it seems to me that overwhelmingly the evidence points in favour of these children remaining placed with Y. Whilst I do not for a moment underestimate the value and importance of family to a child in the short, medium and long term, in the unique circumstances of this case, the harm that these children will suffer in being separated from Y considerably outweighs the disadvantages of being cared for outside of their birth family. Indeed the disadvantages of separation from the birth family are lesser here than usual because of the Herculean efforts of Y to continue the children's relationship with their natural siblings and her genuine commitment to ongoing face to face contact with the birth parents and the aunt.
Adoption or SGO?
146. How should such a placement be secured? For the legal differences between an SGO and adoption I can do no better than to refer to the table appended to the authority of Re AJ (A Child)[2007]EWCA Civ 55.
147. An SGO is the least interventionist of the two alternative methods of securing this placement. Through that means, however, the birth parents would continue to share PR with Y and it would enable the children to maintain the legal link with their natural family.
148. However, I agree with Mr MacDonald's submissions that there is no positive welfare benefit to these children for their parents to maintain their parental responsibility for them. Indeed by allowing them to retain PR there is a possible detriment to the security and stability of the children's placement with Y. The mother made it clear in her evidence that she intended to continue to pursue her agenda for the return of these children to her care. Given the fact that the parents do not support a placement with Y, I think it highly likely that they would take any opportunity to further that agenda. With nothing but an SGO in place, they may need to be consulted in respect of certain matters such as medical treatment and travel outside of the jurisdiction (see para 6 of the table referred to above). I think it unlikely that they will agree, with the result that certain decisions will require further applications to court. Such was the strength of mother's evidence on this issue that even the aunt through her Counsel recognised the difficulties in placing these children with Y under an SGO and does not press the case for an SGO over adoption.
149. A Special Guardianship order lasts until the children are 18 and the children will not become full members of Y's family. As the children grow older they may wonder why their status in this family has not been confirmed through adoption.
150. The advantages of adoption to B and E are that they will have a life long relationship with Y and her family as 'full' members of the family. Y will be the children's parent for all purposes. There will no restrictions upon Y's parental responsibility for the children.
151. In my view adoption most accurately reflects the truth of the circumstances in which the children have lived their lives until now. B's and E's existing family relationships will be maintained by contact as set out below and adoption gives the greatest chance of bringing litigation to an end. In a choice between the two adoption quite clearly offers these children the greater stability and security throughout their lives and enables them to solidify the benefits of the placement that they have now. The benefits which come through adoption again outweigh the loss through severance of the legal connection with their family, particularly if contact is to continue as proposed.
152. Before making a final decision regarding the appropriate order, however, I must consider the situation with regard to contact.
Contact
153. Y has been absolutely clear throughout this litigation that she considers contact to the birth family to be important to these children. It is part of Y's case in favour of the making of the adoption order for B and placement order for E that this contact will be honoured. In keeping with that she has maintained a commitment to face to face contact post adoption.
154. The aunt and parents seek contact orders to be made in order that their contact is guaranteed. They do not accept that she will be so committed following the making of an order. The various provisions pursuant to which I am able to make such orders - whether in relation to B or E - are set out above.
155. I am quite satisfied that Y is genuine in her commitment to post adoption contact, that she will honour that commitment and she will ensure that contact develops and grows in an entirely natural way. My reasons are:
i) Y has adhered to all contact arrangements made for these children by the local authority.
ii) So far as the children's contact with their siblings is concerned she has maintained those links beyond the arrangements currently in place for contact with the result that B and E see A and W regularly and in a very natural and informal way. As I said earlier she has constructed these arrangements so that these 4 children in particular have come as close as they can to being brought up together without living in the same household.
iii) There have been a number of occasions when she has re-arranged contact directly with JM in order to enable it to fit more easily and beneficially around the children's lives. These arrangements have led to more relaxed and better contact between the children and I was disappointed to hear JM give little credit to her for this observing that they were due contact in any event. Had she been opposed to contact she might reasonably have said to the local authority on the occasion that it was arranged to clash with a foster children's Xmas party that it was not convenient. Instead she made arrangements for JM to attend the party with W, her son, and organised for him to get a present from Santa like all of the other children.
iv) It is clear to me that her commitment to post adoption contact has its roots in a genuinely held belief that it is in the welfare interests of these children that they should maintain their link with their natural family through this means. So I am entirely satisfied that so long as contact meets their welfare needs it will continue.
156. Whilst acknowledging that Y said she would respect contact, the aunt commented that what Y says and what she does may be different once an order is made. Of course the history that I have set out with regard to contact tends to suggests otherwise. However the aunt sought to rely upon what appeared to be changes in Y's previously stated position regarding contact going forwards as evidence of this. This has become an enormous issue for the aunt and as a result I need to deal with it.
157. Beyond general frequency, Y's detailed proposals on contact had not been reduced to writing at the outset of the hearing. On receipt of the written proposals from her Counsel, Mr MacDonald, it became clear that Y did not support the continuation of overnight contact to aunt for the time being. During the course of her oral evidence she indicated that she would wish to be present at the aunt's contact to observe how it is going for a time. It is said that this is clear evidence that she is back-peddling on contact and that if this is the case I cannot be certain that it will be honoured. I simply do not accept that is so.
158. Firstly, to be fair to her, her concerns regarding the impact of overnight stays with their aunt on these children have been set out in her evidence in these proceedings. It is right that she had never expressed a wish to be present during contact with the aunt until she went into the witness box. However, the manner in which that evidence emerged gave me the clear impression that what she was articulating for the first time was her desire to satisfy herself as to the arrangements for these children.
159. Throughout these proceedings she has been powerless when it has come to contact for the children to their aunt. It was clear from Y's evidence that she has struggled with the disempowerment felt in respect of contact arrangements following the December 2014 judgment. Ms White on behalf of the local authority accepts that faced with an appeal the local authority had attempted to tread what it considered to be a difficult line between progressing contact so as to be able to implement a transition were it approved but not so much that if not approved reduction in contact would not be too disruptive. To her very great credit, Y has not only complied with those arrangements but done her best to make them work in the best interests of the children. However, it is clear to me that she wants to be able to satisfy herself that the children are comfortable with the arrangements - as any parent would. There is some evidence from her - which I accept - that they may not be entirely comfortable. However, that does not mean that she is backing away from her commitment to contact.
160. Y's evidence on contact was that what she wants to achieve is a relaxed communication between her and JM - "I believe that J and I could talk together to arrange contact." In keeping with that preferred method of communication she has some thoughtful and exciting ideas for contact events - W's birthday is close to E's when they could all do something together before Xmas - a joint holiday to Euro-Disney when J could help them as she speaks French . "Overnight is not completely out of the question but at the moment, they are still both very young; they still sometimes get up in the night, ask for things for comfort and I feel that it is still disruptive for them to be overnight with someone they or I do not know well- this is not set in stone and will change - possible by the time both children can articulate their feelings." Significantly, she was at pains to emphasise that this would not mean a reduction in the time spent - just that they would return home to their own beds.
161. Finally, she did say that when the contact resumes, initially she would like to be with them. She conceded that the aunt had cared for the children "well enough" but went on to comment "but - I actually don't know - they don't come back battle scarred - but emotionally I don't know how they cope".
162. My clear impression was that what she wanted to do was simply take charge of contact, satisfy herself that it had not progressed too quickly and take the lead in settling it into as natural and relaxed a routine as its purpose demands. So, I do not think that this is a lady who is backing away from her commitment to contact.
What contact arrangements are appropriate here?
163. If an order is made that the children are to remain permanently in Y's care, the fact is that the nature of contact to their parents and their aunt changes because the purpose of that contact changes. It is primarily about the children maintaining their sense of identity and kinship. It must not be at a level which might threaten the placement.
164. So far as the parents are concerned, I am satisfied on the evidence that the appropriate frequency for this identity contact would be twice a year. I take my lead on this from Dr Bailly. Y chooses to offer a higher level and it seems to me that this is a matter for her. For reasons that I will set out in a moment I do not intend to impose an order upon her.
165. So far as the aunt is concerned I begin with Dr Bailly's comments that : "I do not see that it would be necessary for them to have contact with J, as she has not played a significant part in their lives and they have no particularly strong attachment to her; I also see no reason why they should not see her if she chooses to maintain contact and takes it upon herself to do so".
166. Having said that, he has also commented that seeing J and W would enable the children to have contact with a member of the birth family who provides a positive picture and experience of the birth family. I consider that the appropriate level would be in the range of 2-4 times per annum. This is supported by Dr Bailly, the Guardian and of course Y. This is sufficient to enable these children to develop a sense of their cultural and family identity. The aunt has sought monthly contact and half the school holidays. This level of contact has the potential to disrupt the placement and I do not think it appropriate - nor do any of the professional witnesses.
Should there be an order?
167. Pursuant to s.1(5) of the 1989 Act and s1(6) of the 2002 Act I must not make any order unless I considers that making the order would be better for the child than not doing so. I do not intend to make any order for contact here and for the following reasons:
i) there is simply no need for a contact order to ensure contact takes place;
ii) a contact order is inflexible - the children's needs will inevitably change over time and it is unhelpful to impose any level of inflexibility over contact arrangements.
iii) The making of a contact order is in my view inviting of further litigation because as Ms White observes this stems both from an order's innate inflexibility but also from the message it sends the family, ie that the Court makes decisions about contact not the carer. This is a carer who now needs to be empowered in order to enable her to promote and protect the welfare of these children.
iv) I agree then that a contact order in these circumstances would be a disproportionate interference in her ability to exercise parental responsibility in the best interests of her children.
Dispensing with the parent's consent
168. It follows that, pursuant to section 52(1)(b) of ACA 2002, the parent's consent should be dispensed with in respect of the application for a placement order in respect of E and in respect of the making of the adoption order in relation to B because the welfare of each of them absolutely requires it.
Orders
169. Accordingly I am satisfied that it is in the best interests of B for an adoption order to be made in favour of Y and it is in the best interests of E to make a care order and a placement order in full expectation that E too will in due course be adopted by Y. There will be no contact orders for the reasons given.
170. The local authority has offered to convene one or two mediation meetings between the Aunt and Y, with a social worker present. The local authority will, I am told, pay Aunt's travel to and from the UK. It is hoped that such a meeting will allow Y and Aunt to air any differences and focus on the best way forward for the children. I hope that this will be successful as it was once before.
171. Mr Geekie QC began his submissions with a quote from the aunt from November 2013 - "Tell me what it is that I have to do for E and I am prepared to give my everything for her". I have no doubt that this decision will be upsetting for the aunt but she does continue to have a role in the lives of E and B. However, it is a supporting role and if she wants to secure the future of these children the time has come for her to throw her support behind the person who will finally become their adoptive mother.