England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT MOLD
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF C (A CHILD)

		18th November 2015

JUDGMENT 18^th November 2015

HIS HONOUR GARETH JONES:

1. I have before me an application made by X County Council [name of Council given] for a Care Order with regard to a child I shall identify as C. He was born on 5^th November 2007 and he is therefore eight years of age.
2. The parties to the application I shall identify as follows:

(i) The Local Authority is represented by Mr Sellars today;

(ii) C's mother (whom I shall identify only as "the mother") has not been present in Court today and is represented by Miss Parry;

(iii) C's father (who has been present in Court earlier today when I announced my decision) is represented by Miss Anslow; and

(iv) C himself is represented by his Guardian Miss Fozzard and by his solicitor Miss Cracroft.

3. So far as this application is concerned, proceedings started in May 2015. An Interim Care Order was made from 22^nd May 2015 and initially C (following the making of that Order) lived with members of the extended family. More recently, that position has altered and he has moved to live with Local Authority foster carers. Indeed it is proposed (and it was always understood) that the Local Authority's Final Care Plan for C would involve a placement with those long-term foster carers to whom he was introduced comparatively recently.

The background to this case

4. It is obvious from reading the documentation filed, that this is in many respects a sad case where C's parents ideally would wish to care for him throughout his minority, but they are precluded from doing so on the one hand because of physical disability and on the other hand because of behavioural difficulties and mental health difficulties. It is obvious that C's parents have historically had much to offer him. They have been in the past professional individuals each following a teaching career being individuals of intellect and of discrimination. Their circumstances have changed and changed considerably during their married life, as explained by the mother in her final statement. I am grateful to her for providing such an insight with regard to the background of this case.
5. The father is seventy-two years of age, the mother is younger and is forty-nine years of age. As indicated, they have been in a relationship for some twenty years. They were initially both teaching at the X High School in Z [name and location of school given]. The mother was a teacher of Mathematics and the father was teaching at the school also. They were married and C was born in 2007.
6. The mother unhappily developed problems with her health and she lost her employment as a teacher. So far as the father is concerned, he suffered a stroke in 2013 which caused (in the mother's words):

"…a catastrophic turn of events in our home life."

As is obvious from the mother's statement (the father although he gradually recovered physically) things were never the same within the family and the mother struggled to cope with her circumstances.

7. The mother (as is apparent from her statement) acknowledges that she developed a number of difficulties and problems with her mental health. She says:

"My ability to cope with everything deteriorated."

8. With the father's disability and he not being able to make up the shortfall, it was unavoidably the case that the care of C offered by the parents and C's upbringing more generally was affected by these circumstances insofar as they related to the parents. The mother's circumstances deteriorated markedly in the months leading to the inception of the current application.
9. As I have indicated already, following the intervention of the Local Authority, extended members of the family stepped up to the mark (at least to some extent) and offered respite or provisional care for C. However, they are unable to care for C throughout his minority, and the Local Authority's assessments of both the mother and the father have concluded (and I accept) that the mother and the father either singly or collectively cannot offer appropriate care for C either.
10. I should indicate that the mother and the father have separated. The father is cared for by a daughter from an earlier relationship with whom he now resides. The mother's circumstances appear to be far more fragile. There was an episode at the time of the IRH hearing on 23^rd October 2015 when she had either been admitted to hospital or only recently discharged from hospital with an episode of self-harming. It has been indicated to me today by Miss Parry on her behalf that while the mother is obviously aware of today's hearing (having been informed thereof), her health (even as late as this Final Hearing) is still uncertain. Miss Parry having spoken to the mother by telephone formed the view that the mother's presentation did not by any stretch of the imagination approximate with what might be termed as an appropriate and reasonable presentation by a litigant in a final application.
11. I am told by Mr Sellars on behalf of the Local Authority that from recent episodes where a social worker has telephoned the mother, the mother's presentation again appeared to be uncertain and she may or may not have been under the influence of some kind of substance (be that alcohol or something else).
12. There is greater detail about the mother's difficulties set out in a report prepared in these proceedings by Dr Mair Edwards. The summary (see E78) sets out in terms the identifiable and diagnosed condition which Dr Edwards has confirmed. Suffice it to say that because of these behavioural and mental health difficulties combined perhaps by misuse of alcohol from time to time, the mother could not provide the stability and security which C as a child of only eight years of age is entitled to expect through the remainder of his minority. That is now I think appreciated and accepted by the mother. That was not always the position, but it is the position presently at this Final Hearing.
13. The father for his part appreciates that while he again would like to care for his son, he accepts that the physical disability attendant upon the ill health which I have identified already means that he cannot do so appropriately. He has a greater appreciation and understanding than the mother, and he has accepted that position for some time but would wish to remain very much part of C's life and would wish to retain frequent contact with him.
14. That then in general terms is the background to the parents' circumstances. As I have indicated already, various members of the extended family have looked after C over recent months. For example, the maternal aunt and uncle have done so and C's half-sister has done so, i.e. the father's daughter from an earlier relationship with whom he has been living more recently.
15. In any event, it has been known for some time that this care cannot be provided on a longer-term basis. The Local Authority, therefore (having regard to C's age) appreciates that it would not be appropriate in this case to place C permanently outside the birth family by way of adoption. He is too aware of his place within the wider family and his birth origins and his age precludes a successful transfer of attachment on that kind of basis. It is obvious, therefore, that since the parents cannot look after C properly and neither is there a member of the extended family who can do so, the only realistic alternative available to the Local Authority is to search for long-term foster carers who could care for C during his minority.
16. Happily, the Local Authority have identified such individuals. Again, as recently as the IRH it was appreciated that this was the position and the Court on that occasion effectively sanctioned a change in C's residential status so that upon his return from a holiday to Turkey with his maternal aunt and uncle, his care could be transferred to the long-term foster carers who are presently looking after him. That happened earlier in November 2015.
17. The Guardian has seen C in his placement more recently. I am happy to say that he has made the adjustment appropriately. He appears to be settled and it is to be hoped that this happy position will continue.
18. The Local Authority's Final Care Plan, therefore, for C (see D26 to 42) confirm that long-term placement with Local Authority foster carers and makes provision also for continued contact between C and members of his family.
19. I can indicate that the provisions with regard to contact as proposed by the Local Authority are as follows:-
20. The mother presently enjoys fortnightly contact. The Local Authority have proposed curtailing that contact to a monthly frequency.
21. So far as the father is concerned, the Local Authority proposes that his contact with C takes place on a weekly basis and there are particular arrangements which have been set up by way of providing the practical support which undoubtedly the father will require.
22. In addition, there are other family members who have a relationship with C which is recognised by the Local Authority. The maternal aunt and uncle (whom I have mentioned) already undoubtedly would wish to have contact with C from time to time and the father's daughter (to whom I have referred already) also has a relationship with C which merits recognition and continuation. That is recognised by the Local Authority and appropriate arrangements can be made.
23. So far as these arrangements generally are concerned for the father and the other members of the extended family, they are relatively uncontroversial and they are accepted, and the Guardian supports and recommends that the Local Authority's Plan in that regard should be approved.
24. There is dissent with regard to the mother's contact. The mother instead of accepting the Local Authority's proposed frequency of contact on a monthly basis, maintains a position before me today that she would wish her fortnightly contact to be retained. That issue (which is the only issue in dispute in this case) has been resolved on the basis of the documentary evidence and the submissions made on behalf of the parties (to which I will turn in a moment).
25. Apart from that issue, I should indicate that the Guardian in general recommends that the Local Authority's Final Care Plan should be approved. The father does not dissent from that position and does not oppose the making of a Final Care Order. I can see that the mother in her final statement, although not giving her formal consent to the making of a Final Care Order makes it plain that there is no active opposition to this either and effectively adopts a stance of neutrality.
26. Accordingly, the matters to which the Court is to have regard under section 31(3A) Children Act 1989 (namely the "permanence provisions") are uncontroversial in this case.

The legal provisions which have to be applied in an application of this kind

27. Before the Court can make a Final Care Order it has to be satisfied that the so-called "threshold of significant harm" under section 31(2) Children Act 1989 is established. If such a threshold is established, the Court then goes on to consider the Local Authority's Final Care Plan having regard to the paramountcy of a child's welfare, applying the appropriate "checklist" provisions under Section 1 of the Children Act 1989.
28. The Care Plan has to be a proportionate and a necessary response to the risk of harm, and it is appreciated that a Care Order which deprives a parent of his or her care of a child is a particularly serious step when contemplated by the Court.
29. There is no dispute with regard to the existence of the threshold in this case. There is an agreed Threshold Document before the Court today which makes reference to those background issues to which I have already referred. In particular, the mother's difficulties (behavioural or psychological difficulties, as they are defined) and the father's physical disability and inability consequently to offer appropriate care for C, and at times the difficult relationship there has existed between the mother and the father and the behavioural issues which have occurred between the two of them historically in this case.
30. Accordingly, there was an indication given at the IRH that I would find the Threshold Criteria to be established on the basis of the Local Authority's documentation. Today that finding can be made on the basis of the agreed document before me on a balance of probabilities.
31. Next, I have to consider the Care Plan but I only need to give active consideration to the permanence provisions thereof (to which I have already referred).
32. Insofar as the contact arrangements are concerned, I do of course have to consider those and invite representation from the parties with regard to them under section 34(11) Children Act 1989. Any judicial dissatisfaction with the Local Authority's proposals in that regard as set out in the Final Care plan could not of itself form the basis of the Court's refusal to accede to the approval of the Care Plan by the making of a Final Care Order, but the Court of course would retain the jurisdiction to make a Defined Contact Order if that were thought to be appropriate.
33. In this case, it does not seem to me that there is a need for a formal "pros" and "cons" analysis. The Local Authority do not propose a permanent placement outside the birth family by way of adoption and as indicated by the Court of Appeal in the case of Re R [2015] 1FLR 715, the Court need only give consideration to those options which are considered to be realistic. As was said in Re R at paragraph 59:

"Re B-S does not require that every conceivable option on the spectrum that runs between 'no order' and 'adoption' has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are "realistically possible"."

34. Similarly, at paragraph 62 the judgment continues:

"In many, indeed probably in most, cases there will be only a relatively small number of realistic options. Occasionally, though probably only in comparatively rare cases, there will be only one realistic option. In that event, of course, there will be no need for the more elaborate processes demanded by Re B-S … the task for the court in such a case will simply be to satisfy itself that the one realistic option is indeed in the child's best interests and that [the Plan can approved under the Children Act 1989]."

35. In this case, although some of the documentation does undertake a "pros" and "cons" analysis referred to in the above judgment, this application falls within the rare category of case where at the Final Hearing it is apparent that there is only one realistic option. The parents' care (as I have indicated already) is not appropriate; any placement permanently outside the birth family is not realistic; and the care by extended members of the family has been tried and is not available in the longer term. Accordingly, the only Plan which affords to C the prospect of a "normal" family life is long-term foster care as proposed by the Local Authority.
36. I am, in these circumstances, quite satisfied that this does represent C's best interests and I am heartened by the information from Miss Fozzard that C has begun to make his emotional home with the foster carers (to whom I have already referred).
37. I need to consider the proposals with regard to the mother's contact because they are disputed on her behalf. The Local Authority indicates that in this case the principles underlying such contact should be:

(i) the mother's contact with C should promote the relationship between them, the Local Authority maintaining that this will be provided by a monthly frequency;

(ii) any contact which is proposed to a child in Care must obviously support the child's placement and must not undermine that placement;

(iii) it is said (and it is undoubtedly the case) that the Final Hearing in this case coincides very shortly with the change in C's placement and the "settling in" period. Accordingly, there would in any event be a requirement for C to have an opportunity to put down roots with his new carers and to form the appropriate attachments there.

38. Accordingly, the Local Authority maintains that the level of contact proposed for the mother would be appropriate at this juncture in any event, but it is supplemented in this instance by a further factor identified by the Local Authority, and that is the mother's potential hostility towards and tendency to undermine any foster care, not necessarily because she consciously wishes to cause C any distress, but rather because of her own behavioural limitations and she fails to properly give consideration to the affect which her conduct might have upon C and the stability of his placement.
39. The Guardian raises this at page E107 of her report. She indicates that the mother has already taken steps to identify the foster carers concerned and their whereabouts and more than that, that she has begun contacting the foster carers directly. For example, there was a telephone call only yesterday. This kind of conduct, if it is persisted in, is likely to be disruptive at best and at its very worst could potentially lead to the breakdown of the placement following its destabilisation.
40. I suspect the mother in her heart of hearts does not really wish to secure such an objective. Indeed, if she thought about it carefully she would see that this was not possibly in C's best interests, but she may be able not to help herself from this impulsive behaviour over which she seems to have very little self-control.
41. The Local Authority have hinted in a case summary that they would be minded to pursue an application for an injunction to manage and control the mother's behaviour in the future. During the currency of these proceedings she has given an undertaking to a separate effect, which has now lapsed.
42. I indicated to the Local Authority earlier that if an application of that kind were to be made in the High Court under the inherent jurisdiction of the Court, that application would have to be made formally and on notice, bearing in mind the background to this case and the mother's difficulties. That is not the kind of order (bearing in mind the possible penal consequences) which could be made on a 'without notice' basis in the circumstances of this case. Nevertheless (as I indicated earlier), whilst the Court may be presently precluded from making an injunction because of the procedural deficiencies, the factors which may give rise to such an application can properly be taken into account by the Court particularly where they are raised on C's behalf by his Guardian.
43. The mother for her part through Miss Parry indicates that the fortnightly contact should be retained. Firstly, because the quality of that contact has improved since the mother has taken on board advice recently offered by the Local Authority. Generally speaking (with the exception of a contact session missed yesterday), I am informed by Miss Parry that the mother has been assiduous in her attendance at contact. Further, it is maintained that there should be an opportunity for meaningful contact between the mother and C, as is generally recommended by the Guardian in her report.
44. The Guardian for her part supports the modification in the mother's contact, largely for similar reasons as advanced by the Local Authority itself.
45. The father is neutral with regard to the mother's contact.
46. I am persuaded that the Local Authority's position on contact in the mother's case at this juncture is entirely an appropriate one. The purpose of the contact is indeed to maintain relationships and the contact should be supportive of the placement rather than potentially undermining of it. The current change in placement to long-term foster care has been recent and while the early indications are promising, this does not mean in any sense that the transition has successfully been completed and managed. This could be the "honeymoon" period and it may be that C's behaviour could become more unsettled until the transition is completed.
47. Furthermore, I am concerned about the mother's conduct both historically and more recently as identified by the Guardian in this case. She now (knowing of the foster carer's location and indeed appearing to have details about telephone numbers and so on) is unavoidably in the position that she could, if she wished, cause considerable difficulty for the foster carers and (through the foster carers) difficulty to C as well. I would simply be adding to the problems if I were to permit a greater level of frequency if the mother is intent on disruption.
48. It seems to me if that is her stance, the safer course would be to permit a lesser and longer period between contact on a monthly basis as proposed while waiting to assess the mother's actual reaction in the longer term to C's placement, to see whether her behaviour is modified and to see whether she accommodates herself to the new realities. If she does, it may be that the Local Authority will consider during the statutory review process whether any alterations are required. If she does not, and if she persists in her conduct, it is likely that she may find herself very shortly as a Respondent in an application issued on behalf of the Local Authority. I make no observation about that.
49. I hope, if Miss Parry has the opportunity of seeing the mother after today, she will attempt to persuade the mother that it is in C's best interests that his placement with these new foster carers continues as a secure and stable placement for the longer term. That is obviously in C's best interests. The mother must appreciate that she cannot care for C and that there is no family member who is able to do so either (including the father), then surely (I ask rhetorically) as a responsible parent she would wish C to be as settled as soon as possible with his foster carers? Far from causing difficulties she would (I would have thought) be more intent on supporting such a placement in C's longer term interests. Time will tell what the mother's position is with regard to these arrangements. I am satisfied that the Care Plan proposed by the Local Authority pitches contact at the appropriate level and I make no order for defined contact.
50. Accordingly, for these reasons, I make the Orders which I announced prior to the luncheon adjournment. I find the Threshold to be established on the basis already indicated. I approve of the Local Authority's Final Care Plan and I make a Final Care Order. I am satisfied also with regard to the contact arrangement which are proposed. The practical arrangements agreed between the father and the Local Authority are entirely appropriate and the frequency of contact proposed for the mother is also appropriate for the reasons stated and I make no order for defined contact.
51. Save for the usual provisions with regard to costs, which may need to be added to the Order, I have read the draft Oder prepared by Mr Sellars and unless anybody invites my attention to any particular changes, I approve that draft Order and I make that Order accordingly.

End of judgment