England and Wales Family Court Decisions (other Judges)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: BS14Z00151

IN THE FAMILY COURT SITTING IN BRISTOL

 

 

 

Before :

 

HIS HONOUR JUDGE WILDBLOOD QC

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Between :

 

	Gloucestershire County Council	Applicant
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	AB	First Respondent
	-and-
	CD	Second Respondent
	-and-
	EF	Third Respondent

 

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Claire Rowsell for the Local Authority

Christopher Peake for the mother

James Cranfield for the father

Richard Ellis for the guardian.

 

Hearing commenced 2^nd March 2015

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JUDGMENT

 

 

HHJ Wildblood QC :

1.                  Foreword – Of course many cases reveal a few points of bad practice. However it is very rare that so many such points should be gathered into one case. It has taken two years and five months for these proceedings to be resolved. The case was listed in front of me (even though I had had no previous dealings with it save for a short procedural directions hearing 18 months ago) because there were such difficulties with it that it was thought necessary for it to come before me as the Designated Family Judge. I can see why.

2.                  This is an application for a placement order in relation to a little girl who is 4½ years old and who is already subject to a care order. It is a case that reveals multiple failures. The principal failures have been those of the Local Authority but there have also been failures within the court led process and by those who represent the parties. The delay speaks for itself but, in this judgment, I will set out what has happened. Despite what is said in Re W [2014] EWFC 22 orders of the court have been ignored. In one instance the Local Authority chose to ignore an order of the court (i.e. it declined to carry out an assessment of the father despite having been ordered to do so). In another instance the Local Authority failed to do what it had agreed to do (i.e. issue a placement application within a timescale agreed on the face of an order – by 30^th October 2013- choosing to leave it for another four months before the application was issued on 18^th February 2014). There has been sequential presentation of applications, as to which there are now the authorities of Surrey County Council v S [2014] EWCA Civ and Re R [2014] EWCA Civ 1625 [para 20]; here a care order was made in October 2013 with a view to the child being placed for adoption and, seventeen months on, I am hearing the placement application. This is the fifth listed hearing of this application for a placement order with each adjournment being necessitated by the inadequacy of the evidence that the Local Authority has provided. The analysis of options is inadequate (and does not analysis to any sufficient degree the benefit to the child of maintaining contact with her natural family). The professional assessments do not weigh up adequately the pros and cons of the competing options for this child (and the experts both gave evidence about the negatives of the father’s position without being asked to consider the negatives of adoption, such as the loss of family contact). The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court). The authority has had permission to investigate available foster and adoptive carers since September 2013; it has not investigated long term fostering as an option at all (despite saying that it would on many occasions – see e.g. page 38 of the transcript of the evidence of the social worker Ms Morley) and despite its apparent searches has had one expression of interest from a couple who know nothing about the specific details of the child. There has been no judicial continuity.

3.                  I realise that the Local Authority management will be as deeply disappointed as I am that a case comes before a court in this area in this condition. Criticism is often far from helpful and I would much prefer to work with authorities to improve matters rather than deliver criticisms from the bench. However, if I make a placement order I cannot attach conditions to it; as examined in helpful closing speeches, the power to attach contact provisions to a placement order under section 26 of the Adoption and Children Act 2002 bears a large number of practical difficulties (e.g. contact until when?). As Ms Rowsell said in her realistic and helpful closing speech – the Local Authority asks you to have confidence that it will operate appropriately under a placement order but accepts that the past means that there is little reason for it to do so. For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.

4.                  Introduction - Gloucestershire County Council applies for a placement order in relation to a girl who is now aged 4 ½ and to whom I refer in this judgment as EF (or simply as ‘the child’). Her mother, to whom I shall refer as ‘the mother’ in this judgment, is nearly 27 years old. Her father, to whom I refer ‘the father’, is 32 years old. Her guardian is Jean Charlesworth.

5.                  On the 1^st October 2013 (i.e. 17 months ago) a District Judge made care orders in relation to this little girl and her two brothers; there is a transcript of his judgment at C63. Her two brothers, who are both under the age of ten and are 16 months apart in age, now each live in separate foster placements that are also separate to that in which EF has been living. So, the result of the care proceedings has been that the three children are being brought up separately from their parents and from each other. Inexcusably, it has taken this length of time to sort out whether EF should be placed for adoption. She was aged 3 years and 3 months when the care order was made in relation to her. The application for a placement order was made on 18^th February 2014, some four months ‘into’ the care order and some 13 months ago.

6.                  EF has now been with the same foster carer (who has been saying for the past six months at least that she is not able to retain the care of EF indefinitely and would like EF to move on) for the same period, that is 13 months [C9], and so faces the major and inevitable disruption now of moving from that home. This is her second foster home since the care order was made; she was previously with different foster carers from October 2013 to February 2014 [C3]. Whatever orders I make there will be a delay before EF moves to what will hopefully be her final home; she will have to move from her current carers by a date in August because they are leaving the country in September [D5].

7.                  The Local Authority - The initial Local Authority intervention arose due to the violence that was occurring between the parents (who are now separated), the neglect that the children were suffering, the parents’ misuse of alcohol and other substances and the lack of engagement of the parents with those who were seeking to improve the standards of care that the parents were offering to the children. At the time of intervention the children had already experienced years of poor parenting and so the delay within these proceedings is just the unseemly tip of a slow moving iceberg. As the social worker, Mr Gray himself says at C178 of the time before the making of the care orders in October 2013: ‘prior to this [EF] had experienced uncertainty and placement moves within the care proceedings, both in her maternal grandmother’s care and in foster care. Since leaving her grandmother’s care [EF] has had two subsequent foster placements and significant work with her to assist in comprehending her circumstances and permanence has not been possible due to ongoing delay. This will have impacted on [EF]’s relationships with her carers and peers, her perceptions of her family and her development of identity, self esteem and communication abilities’.

8.                  The positions - The position now is that the Local Authority pursues its application for a placement order. The parents oppose it and both contend that EF should live with her father. The father’s secondary position is that I should dismiss the placement application and leave the care order in place; this would have the effect of leaving this child in long term foster care with contact taking place to the mother, father and her siblings.

9.                  Before the case started the guardian filed two reports in which she supported the Local Authority’s application. As the evidence developed however she became increasingly lacking in confidence in the Local Authority’s performance and the consequences of making a placement order. Having considered the position overnight with Mr Ellis (and thankfully the guardian and Mr Ellis are both very able and experienced) the guardian’s position became that she did not support the return of EF to the father but felt that the balance between long term fostering and placement was so fine that she did not wish to advance any recommendation as between the two and as to the Local Authority’s application. She said that on the one hand she would have liked a reliable authority to have had the benefit of pursuing a twin track approach of i) long term fostering and ii) adoption, her unsurprising view being that EF now needs a permanent home urgently and adoption, supported by inter sibling contact, would be the optimal solution. On the other hand she felt that a placement order would lead to the Local Authority ignoring the benefits of the child’s relationship with her natural family (especially her siblings) and would also lead to the authority ignoring the need to investigate long term fostering; thus the very likely result of a placement order in the hands of this authority would be that a) there would be more delay whilst the authority tried to find adopters for this complex child, a search that will not be easy as the past seventeen months of unfruitful searching have shown; b) the authority would close its mind to fostering as an alternative (despite it being a realistic alternative) and c) the authority would not promote the child’s relationship with her siblings adequately.

10.              Applications - The only application before the court is that of the Local Authority for a placement order. There are no actual applications by either of the parents. On the scale of things involved in this case, I advance this point as one of mild criticism only and primarily for the purposes of clarifying what I am dealing with. But there should either have been applications setting out the orders sought or at least a record on the face of orders as to what applications are being pursued. The nearest that one gets is to look at the order at B128 that states that ‘the father wishes EF to be placed with him. The mother wishes for EF to be placed with her. The paternal grandmother wishes for EF to be placed with the father but if not with him then with herself’. On behalf the father I was told that he seeks a child arrangements order. I hope that it is not just legal pedantry to say that the nature of the orders sought should be identified not just for the purposes of clarity and definition but also because some applications involve different procedural requirements – for instance I had no idea whether the paternal grandmother might be seeking a special guardianship order in default of placement with the father.  Of course no judge wants to see money and trees wasted in making unnecessary paper applications and it is often acceptable to record that parties are deemed to have applied for orders. But there must be some attempt at formality in establishing who is seeking what orders.

11.              Therefore, the father seeks a child arrangements order by which EF should live with him. The effect of that would be discharge the existing care order – section 91 (1) of The Children Act 1989 and I have proceeded on the basis that he is deemed to have applied for such an order. He suggests that there should be a transition period in which EF moves to his full time care. He complains, rightly, about the quality of the assessments of him by the Local Authority and, to a lesser extent, an independent social worker but recognises that this case will not be adjourned again. Four final hearings of the placement application have been adjourned already; two by District Judges (May and August 2014) and two by a Recorder (September and December 2014) due to the inadequacy of the Local Authority evidence.

12.              The mother, who has been having monthly contact, was not present at the start of the hearing either, having been advised by her solicitor that she did not need to attend [sic]. I was told that she did not consent to adoption but had decided not to attend because she ‘had nothing to play for’. On the second day of the hearing she sent a message to her solicitor saying that she did not intend to attend the hearing at all and has not done so. I was told that she supported the father and, in relation to contact, would accept whatever the Local Authority proposes in relation to contact if a placement order is made. I was told that, if the child goes back to the father, he had told her that she would have ‘generous contact’; I was then told that the father’s case was that, if the child was returned to the father he would be guided by the Local Authority about contact with the mother. On the second day I queried why the mother’s solicitor was present at all and he decided to leave.

13.              The father’s mother, the paternal grandmother, was not present at the start of this hearing and the father’s advocate was not able to answer for her. She has been advised to seek legal advice but has not done so. She has not been joined as a party. As matters turned out she attended on the second day and said that she did not wish to pursue applications on her own behalf; that had not been her position earlier on in these procedures and the position that she expressed on that day might be regarded as fortunate since it avoided other procedural difficulties.

14.              Options  - Therefore the options for this child that I have considered are fourfold and are as follows:

i)                   That she becomes subject to a placement order with the parents consent to her being placed for adoption being dispensed under section 52(1)(b) of the 2002 Act on the grounds that her welfare requires her to be so placed;

ii)                 Dismissal of the placement application which would leave her subject to a care order;

iii)               A child arrangements order in favour of the father.

iv)               Adjournment. Despite the weaknesses in the evidence that course of action was not pressed upon me by any party. There would have had to be a very good reason indeed to adjourn this fifth listing of the final hearing.

15.              The Part 25 experts Two experts have given reports and evidence for this hearing. Dr Mair Edwards, a clinical psychologist whose evidence and commitment to this case impressed me enormously, reported in relation to the mother, the father, the paternal grandmother and also on whether EF should be placed in the same foster home as one of her brothers. She did not support the placement of EF with any of those family members and her evidence was strongly supportive of the Local Authority’s position that EF should not be placed with her father. However, she accepted that, in being instructed to comment on family members only, she was not asked to compare the competing pros and cons of adoption or of fostering (e.g. she was not asked to comment upon the effect that it would have on this child now to lose her relationship with family members, especially her siblings). In her report at E118 she said this: ‘On the basis of the information gathered, and my observations, it is my opinion that there is potential for the sibling relationship between EF and [one of her brothers] to develop and in my opinion it will be important for them to retain knowledge of each other. They are full siblings and in later life / adulthood, having a sibling who is aware of their experiences and who shares memories is likely to be reassuring and beneficial’.

16.              A Ms Cheryll Chapillon wrote a report on 12^th February 2015 as an independent social worker on whether EF should be placed with her father. The guardian expressed her disappointment about the quality of her report; Ms Chapillon was asked to report over a very short timescale and her report was limited in its depth. She saw the father for two sessions of one hour. Much of her report echoed what had already been said by Dr Edwards.  She concluded that EF should not be placed with the father and made particular reference to the father’s continued consumption of alcohol, lack of social support, emotional difficulties arising from his troubled background and lack of insight into the needs of EF and the harm that she has suffered in the past. Again she was not instructed to consider the competing merits of adoption (or fostering) as the only other options to EF living with her father; neither she nor Dr Edwards should be criticised for the fact that their analyses were linear. They did what they were instructed to do.

17.              Weighing up of options - As it is the attempt to weigh up the competing options within the paperwork  has to be taken from Mr Gray’s final statement. There are any number of difficulties with that document. Firstly, there has been no Local Authority assessment of the importance of contact between the siblings; the arrangements for this have largely been left to the three sets of foster carers. Secondly, the only assessment of the father (including three contact sessions) that Mr Gray wrote was the positive viability assessment; the quality of contact with the father and the importance of his role are not analysed when considering the options. Thirdly, the difficulties in finding adopters was not considered (the Local Authority has already had 17 months to do this). Fourthly, the fact that the Local Authority has not looked for foster carers at all is not mentioned.

18.              The care plan – The care plan states that the Local Authority would plan to search exclusively for an adoptive placement for six months following the making of a placement order. That amounts to a departure from what was being said in September and October 2013 where the case was to be twin tracked between fostering and adoption and permission was given for this to occur. Further, the Local Authority was again given permission to seek adoptive and long term fostering placements in September 2014 (i.e. six months ago) with the intention that it would pursue a triple track analysis – adoption, fostering and placement with father. It did not pursue fostering at all, failed to assess the father properly despite being ordered to do so and can offer one tentative enquiry about adoption from a couple who expressed interest ‘before Christmas’ and have not been investigated further.

19.              If an adoptive placement is not found in six months the Local Authority says that it would give further consideration to long-term foster care. In six months time EF will be five and in her second year of school education (she is just ‘rising five’ for this school year – C10). Thus her start at school in September 2014 took place from interim foster care 11 months after the care order was made and seven months after the placement application was made.

20.              The care plan is non-specific about contact between the three siblings; at C179 the social worker says: ‘direct contact would be promoted [between the three siblings] if this was assessed as being in EF’s best interests and risks associated with their ongoing contacts with the wider birth family could be mitigated. Adopters open to promotion of direct contact would be recruited by the agency’. The guardian said this about inter sibling contact in her oral  evidence: ‘The contact between EF and one of her brothers has included an overnight stay. There has been inter sibling contact three times a year with all three children together but there is also separate monthly contact between EF and one of the her brothers and less frequent contact between EF and her other brother. Ideally, if EF is placed for adoption, an adopter would have to accept inter sibling contact although this will not be easy because the parents will continue to have contact with the boys and adopters might find that difficult’.  Having considered matters overnight, and after a period of adjournment for reflection, the guardian through her solicitor and in her presence said that one could not have any confidence that the Local Authority would deal with this issue of inter sibling contact appropriately and there was a very risk that it would not press for or find adopters who would tolerate inter sibling contact. Thus there was a very real risk that a placement order would result in this child losing all contact with all of her family members.

21.              The care plan also proposes indirect (i.e. written) contact between the children twice a year (which is not easy to envisage given the ages of the children) as well as cards at birthdays and Christmas. As to the parents, maternal grandmother and paternal grandparents the care plan suggests that they should have indirect contact only, once a year and Mr Gray, the social worker  suggests at C179 that ‘this enables the continued development of [EF]’s identity and comprehension of her birth family story within safe parameters’. When considering the proposals for contact nothing is said about the quality of the father’s contact to date. It was agreed in closing speeches (on my enquiry) that the contact between this father and this child has been ‘good and loving’. The contact notes are at enclosure F.

22.              The care order and delay - The care proceedings had taken a year to come before the District Judge. The first statement in the care proceedings was dated 30th October 2012. So, those proceedings took twice the period that would now be regarded as the permitted maximum (section 32 of The Children Act 1989). These were not complex proceedings albeit that they are of such fundamental importance to the children concerned. The very last sentences on the last page in the current, non Practice Direction compliant, bundle [G390], is written by a social worker in her statement dated 3^rd September 2013 ( the month before the hearing before the District Judge).

23.              Those sentences read as follows: ‘It is the view of the Local Authority that a full care order is the only appropriate order that the court can grant to safeguard [the children] and meet their need for consistent carers who can offer a stable, secure and warm permanent adoptive [my emphasis] family throughout their childhood.  The Local Authority therefore respectfully requests that the court grants a full care order in respect of [each of the three children]. If a care order is granted by the court then the Local Authority intends to seek placement orders in respect of all three children’. In his October judgment the District Judge said this [C66]: ‘the plan for the placement of these children is outside the family home. There will be, in so far as the eldest two children are concerned, twin track planning that may lead to their adoption. In so far as the youngest is concerned, the primary focus is going to be on adoption’. The first document in enclosure C of the current bundle is a minute of a meeting on 29^th November 2013 in which the Local Authority stated: ‘Kate confirmed that a legal planning meeting will be set up soon to discuss a placement order application. There is no reason to delay and no need for further assessments…’.

24.              There can be little doubt that, if the District Judge had been asked to make a placement order in October 2013 he would have made one on the basis of allowing a twin track approach as between fostering and adoption. At the time, the father had disengaged with the proceedings and had not co-operated with the assessment by Dr Edwards, the mother’s life was in chaos, the maternal grandparents were withdrawing from the care of EF and the paternal grandmother was not considered to be a suitable carer. Although, as I go on to explain, the Local Authority had failed to present adequate evidence in those proceedings as well, the entrenched nature of their failings was nowhere near as apparent as it is now.

25.              In my opinion it is inexcusable that placement proceedings were not before the court in October 2013. The reason for that is apparently that the Independent Reviewing Officer took the view that there had not been sufficient investigation of whether the maternal grandparents might be potential carers. That led to the maternal grandparents being joined to the proceedings on 27^th August 2013 (an order that is stated to be the seventh case management order ‘in this matter’ and is repeated in another order dated 3^rd September 2013). The first stage of the final hearing began on 9^th September 2013 before the District Judge. Since the grandparents were caring for the children at the time I cannot understand how it could be that they had not been assessed beforehand.

26.              On 9^th and 10^th September 2013 the District Judge heard evidence from the social worker, Dr Mair Edwards and the mother. His order records that ‘neither the children’s father nor the maternal grandmother’ put themselves forward as carers of the children. The court found that the mother was not able to meet the needs of the children. It also records that the Local Authority would seek ‘experienced foster placements for each of the children which will be bridging placements to prepare the children for permanency’ and that, once such foster carers were found, the children would be prepared for the move away from the care of the maternal grandparents (with whom they then lived); that did not happen – EF was found an interim foster carer who was replaced by another interim carer in December.

27.              The hearing was adjourned in September to a three hour appointment before the District Judge on 1^st October 2013 for the order to be finalised and the care plan to be amended. There was a list of matters that were to be included in the amended care plan, including: ‘…b) how the children are to be told that they are to be moving to bridging placements, c) life story work with each child, d) the timescale for a search for bridging and permanent placements,…h) twin track planning, i) preparation of the children for adoption, j) the level and type of contact when the children are in permanent foster or adoptive placements’.

28.              In that order of 10^th September 2013 (which is not in the current bundle) the court also ordered ‘that the children have adoption medicals…permission to the local authority to advertise all thee children for adoption…the Local Authority shall file and serve the advertisement and/or pen picture for each child as it relates to adoption / permanency’. It could not have been clearer that the court was approving potential adoption despite the fact that there was no placement application.

29.              In my respectful opinion it would have been far better to have ordered that the case should come back part heard with a placement application having been filed.

30.              In Surrey County Council v S [2014] EWCA Civ, the following was said: ‘There was no reason why the Local Authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement proceedings to run concurrently with the care proceedings. That would have been fairer to the mother. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making…In care proceedings where the Local Authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed.’

31.              In Re R [2014] EWCA Civ 1625 the following was said: ‘Although it does not affect the substance of his evaluation in the present case, I would, however, question the judge’s decision to analyse the issues in the case first under the welfare checklist in CA 1989, prior to making a care order endorsing the care plan for adoption, and before moving on to conduct a second analysis using the welfare checklist in ACA 2002. There was one issue in this case: should the child be returned to the mother or go forward for adoption. That is an adoption question to which the factors in the 2002 Act directly apply. In the circumstances it was necessary, and necessary only, to analyse which outcome was to be chosen, by giving the child’s welfare paramount consideration throughout her lifetime through the lens of the welfare checklist in ACA 2002, s 1(4). There was no need to conduct a preliminary, lower level, analysis using the CA 1989 checklist or to make a care order in the middle of the judgment; if the adoption plan was ultimately chosen then a care order would readily be justified and made at the conclusion of the hearing.

32.              Those authorities came into being after the decision of the District Judge. In defence of the District Judge, there was a period after the Family Court modernisation programme began where judges were considering separate hearings of care and placement applications in order to try to keep cases within the constraints of 26 week disposal. However it bore these difficulties:

i)                   If a court is approving a course of adoption it should consider the welfare provisions and checklist under the Adoption and Children Act 2002 which is not the same as the equivalent provision under The Children Act 1989.  The 2002 Act stresses the lifelong consequences of adoption and subsections 1(4) (c) and 1(4) (f) are important welfare checklist provisions which are different to those found in the 1989 Act;

ii)                 There is an enormous advantage in all issues relating to children being dealt with in one composite hearing;

iii)               The delay in this case would have been short. It would only have needed a brief adjournment particularly because the Local Authority proposed putting the case before the Agency decision maker very shortly after the care order was made (a point to which I return)

iv)               By dealing with only the care application it left the door open to this Local Authority to delay. Thus control of the adoption process was taken out of the court arena. No court could have foreseen that the Local Authority would make such a mess of procedures after the care order as this authority did but control was lost.

v)                 Litigation strain is a very real feature of cases like this. It is stressful and costly for there to be separate procedures.

vi)               Following the making of the care order the guardian’s role ended and so she lost any role to intervene until the Local Authority made its placement application.

33.              The October 2013 order of the District Judge was also not in the bundle but the court file shows me that the order specifically stated ‘Upon the Local Authority agreeing to issue its placement applications for all three children by 30^th October 2013’. The District Judge very correctly gave directions about what should happen in the event of the placement applications being issued (the same guardian to be appointed and the case was to be listed for directions before the District Judge on the first available date after 20^th November 2013). The District Judge was plainly correct to give anticipatory directions. The Local Authority has acted in breach of its agreement with the court and the other parties – quite simply it did not do what it had agreed to do and it is inexcusable for a public authority to behave in this way. It has still not issued any placement proceedings in relation to the other two children and so I must assume that it does not intend to do so; if such proceedings were to be issued they would have been heard in tandem with these.

34.              It is inexplicable that it took four months for the placement proceedings to be issued where the care plan that was before the court in September and October (and the Local Authority evidence in support of it) communicated that the Local Authority had already decided to pursue adoption. It is inexcusable that adoption and fostering were not twin tracked as they were intended to be. It is inexcusable, in my opinion, that it has taken thirteen months for the case to come before a court for final hearing where the court had already given its approval to a care plan for consideration of placement for adoption (even if that approval had not been based on analysis of the 2002 statutory criteria).

35.              Delay for the child - From the point of view of this child the delay is the delay over the whole period of these care and placement proceedings (and indeed before). The delay in these proceedings is therefore from October 2012. EF was aged two years and three months then. Since then two years and five months have elapsed – that is more than half of her life. When the proceedings started she lived with her maternal grandparents after experiencing the neglectful upbringing that her parents provided for her. She then moved into short term foster care before returning to her grandparents. She was then placed with one set of foster carers in October 2013 and remained with them for four months before moving to her current foster carers.

36.              In his judgment the District Judge recorded the views of the expert, Dr Edwards that ‘if everything remains as it is, [EF] is likely to develop an insecure effect-driven attachment pattern’. Given her upbringing prior to that date and the fact that she faced separation from her family (including siblings) the expression of that opinion may have been no more than stating the obvious. Since then she has been in two foster homes and has not known where she will live in the future, where she will go to school or what relationship she will have with her natural family. If her difficulties were as described by Dr Edwards (and there is no reason for me to think that they were not) there is all the more reason why every effort should have been made to find her a secure and settled home as soon as possible; as it is she has been in two foster homes and may have to leave the present one before moving to any long term placement. It is unsurprising but pitiful that the attachment difficulties that Dr Edwards foresaw are now said to be manifest.

37.              Court orders – Following the issue of the placement proceedings the case came before a District Judge for directions to be given on paper on 5^th March 2014 [B66]. Directions were given by that same District Judge on 1^st April (she was not the judge in the care proceedings and arranged for future listings to be before that care judge); they included directions for an IRH on 20^th May 2014 and a final hearing on 27^th and 28^th May 2014. On 20^th May 2014 the District Judge who had made the care order heard the IRH and vacated the final hearing because there were no assessments at all of the parents and relisted it on 4^th August 2014 [B124]. On 9^th July 2014 another District Judge vacated the final hearing in August due to the lack of assessment and listed the final hearing on 2^nd and 3^rd September 2014 [B125].

38.              On 2^nd and 3^rd September the hearing started before an experienced Recorder; she heard evidence and recorded on the face of the order that ‘the reason why the hearing has been adjourned is because it is recognised by all parties that the evidence submitted by the Local Authority is inadequate’. The agency social worker had given evidence and the Recorder was particularly troubled by the lack of assessment of the father and paternal grandmother. There is a transcript of the social worker’s evidence, which I have read.

39.              Therefore the case was adjourned on the basis that the Local Authority would assess the father and that there would be assessments of the mother, father and paternal grandmother by Dr Mair Edwards, the psychologist. A further final hearing was listed before the Recorder on 15^th and 16^th December 2014. Assessments by Dr Edwards followed on 24^th October 2014. By now everyone must have realised that it was essential to avoid further delay.

40.              There was also a preliminary parenting assessment of the father at C108 by the social worker, Mr Gray, dated 22^nd October 2014. It suggested that further in depth assessment of the father was necessitated and that this would take two months to complete [C111]. The preliminary report was positive in its assessment of the father and suggested at C110 that a good attachment had been observed between the father and EF (a suggestion that Dr Edwards doubts to be correct – E37); however, at C111 Mr Gray said that there were a number of matters not covered by the assessment such as home life, providing EF with appropriate clothing, getting her to and from school, managing her behaviour and providing her with a stable environment. What is more, the person writing the assessment is Mr Gray, who has never met the father except when attending court hearings (again I say more about this later).

41.              Notwithstanding the positive nature of Mr Gray’s initial report, there was then a statement filed on 6^th November 2014 by Mr Tyrrell of the Local Authority child permanence team (C131); in it Mr Tyrrell stated that the Local Authority did not intend to assess the father because the ‘timescales for EF would not allow them to do so’ [C135]. The order of the Recorder of 3^rd September 2014 states at paragraph 14: ‘The Local Authority shall carry out a parenting assessment of father and this shall be filed and served by 17^th October 2014’. The Local Authority accepts on the face of Mr Tyrrell’s statement that it did not carry out a full assessment in accordance with that order [C135]. That is inexcusable. The order to carry out a parenting assessment means that the Local Authority should carry out a proper parenting assessment; on the very face of Mr Gray’s statement his work was not a parenting assessment, as he himself accepted in evidence.

42.              The Local Authority’s decision not to assess the father properly was deliberate and considered; since that decision was in direct contravention of a court order I do not see how I can describe it other than as contemptuous. Nor do I accept that an assessment of the father would have taken two months; it would have taken as long as those involved chose.

43.              In his oral evidence Mr Gray said this. When he carried out his parenting assessment he did not see any of the case papers from the care proceedings. He did not meet the father when preparing it (and has never met him even now despite having been the social worker for EF since the end of October 2014 and being called as the only witness for the Local Authority at this hearing). Is it acceptable for a social worker to prepare care plans and file Local Authority evidence, including evidence of options and services, without ever meeting the one member of the family who seeks to care for the child concerned? One can never say ‘never’ to that question but, on the facts of this case, it was obviously inappropriate for Mr Gray to come to give evidence without ever meeting this father.

44.              Mr Gray said that, since his involvement, the Local Authority has discounted the parents and so it was not thought appropriate for him to meet with them. He was not aware that the court had adjourned a final hearing because of the inadequacy of the Local Authority evidence particularly in relation to the assessment of the father. He accepted that his assessment was not a complete parenting assessment and said that he told the legal department that there needed to be a full assessment of the father.

45.              There is no analysis of the contact that has taken place between the father and this child save for the three contact visits that Mr Gray did not himself observe; Ms Griffiths, who did observe them, said this at C110: ‘in general, the nature of all three observations does suggest a good attachment between EF and her father. Indeed, there was one poignant moment shared by them both when they discussed how much they missed each other’.

46.              The Recorder, who had formed the view at the hearing on 3^rd September 2014 that the Local Authority’s evidence ‘is inadequate’ (and had recorded as much on the face of her order at B128), ordered an assessment by an independent social worker at a hearing on 15^th December 2014 [B168]. The fact that it was necessary (to use Part 25 language) to order that assessment by an independent social worker of itself underlines the Local Authority’s failure to carry out the assessment that it had been ordered to do.

47.              The effect was that the order for the father to be assessed by the independent social worker came ten months into the procedure (i.e. the order was made in December in relation to an application that was made in February) and the assessment report of the independent social worker came into being a year after the application was made (12^th February 2015 – E124). The order for Ms Chapillon’s report led to the fourth listed final hearing being adjourned (leaving me hearing the fifth such listing).

48.              Further, in December 2014 the guardian learnt that there was a possibility of the foster carers of one of the boys offering to care for EF. That suggestion had arisen in September 2014 but the guardian was not informed until shortly before the final hearing in December was due to take place [A8].

49.              None of the important documentation from the care proceedings was in the court bundle and so I called for the court file to be retrieved from the basement of the court office. It is from that file that I found the order of the District Judge of 1^st October 2013. I also found the care plan that was made on 20^th September 2013 which states that ‘a search to identify a suitable adoptive placement for her will be made; alongside this a long term foster placement will be sought as a fall back position’. No long term placements have been identified. The care plan states that the child ‘is due to be considered by the agency’s decision maker on 16/10/13’ (i.e. 15 days after the final care hearing – why? – the care plan proposed adoption).

50.              Threshold – Plainly for the District Judge to have made a care order the threshold criteria under section 31 of The Children Act 1989 were found to have been fulfilled. Since there is a possibility that this judgment may be read by people who are not acquainted with the full terms of The Children Act 1989 I need to explain that the fulfilment of those statutory criteria is a legal requirement before the court can continue to consider whether a care order is in the paramount welfare interests of the child and compatible with Article 8 of the European Convention on Human Rights; the criteria contain the manner in which it is being said by the Local Authority that the children were suffering or were likely to suffer significant harm at the time of the Local Authority’s intervention. Thus it is essential for me to have a proper understanding of how they were fulfilled in this case.

51.              There is no record within the bundle about the terms in which the threshold criteria were fulfilled for the purposes of the making of the care order. Indeed, on my exploration of the two large court files there was no copy of a threshold document on file. I had to ask for it to be produced and it came into being on the second day of this hearing.

52.              Further, the District Judge said this in his October 2013 judgment: ‘I incorporate into this judgment by reference two important documents, firstly the agreed final threshold document that set out the agreed facts as at the time that the application was brought and, secondly, the findings of fact that I have already made on the previous occasion’. When I asked ‘what findings were made and on what previous occasion’, there was some confusion because, within the court file, there was a schedule of findings that the Local Authority was seeking with responses from the mother. I asked: ‘Had there been a fact finding hearing?’ It appears that there was not. The District Judge did deliver a judgment in September and stated that his October judgment was a continuation of that earlier judgment. I do not have a transcript of what he said in September.

53.              It is very unfortunate that I do not have a transcript of what the District Judge said in September because it was in the September that the Judge reached the conclusions that I have already set out above.  Plainly it is important for me to understand the welfare basis for that. I would have thought that the Local Authority would have wanted such a transcript also so that it could guide their work.  Emphasising the importance of a judgment is not judicial pique or self importance. A judgment is given after everyone has had an opportunity to have their say and it represents the rule of law in practice. If judgments and orders are just ignored, as they have been here, what follows? Further, the judgment allows people to distinguish between what is established fact and what is no more than allegation. It also explains why people are being ordered to do things.

54.              The threshold document relates to the time when proceedings were started – that is 2012. Therefore it does not record the issues that were contemporary at the time of the care order and led to the conclusion that only care with a view to adoption would do. Further the document suffered from many of the deficiencies identified recently by the President in Re A (a child) [2015] EWFC 11 (the Darlington case); for instance: ‘there are concerns as to the rough handling of the children ….there are concerns as to the general care of the children’. The threshold criteria were fulfilled on the basis of the violence between the parents, the neglect of the children, the parents lack of engagement with an assessment, the social hostility towards the parents, the parents misuse of drink and drugs and the parents’ failure to seek medical advice for the children after they suffered ‘unexplained injuries’.

55.              However, in relation to the father, it is clear that the District Judge accepted the report and evidence of Dr Mair Edwards. I retrieved her 2013 report from the court file. It spoke of the father’s troubled background, disengagement with the children, rejection of the assessment process, excessive drinking, lack of insight and work related priorities. From the evidence before me it is plain that those aspects of the father’s functioning were very well established. His absence from the hearings was a clear signal of his disengagement. The District Judge said this in his judgment of October 2013: ‘throughout the course of these proceedings, the position of the children’s father (who is absent again) has been to support, if he supports anybody, the return of the children to their mother. But he has been largely silent in these proceedings and it is important that it is understood that he does not offer himself as a carer. So in so far as the long term care of these three children is concerned, he does not put himself in the position of being somebody who can care for his children. He is clear about that and his continuing absence throughout these proceedings bluntly speaks eloquently on that point’.

56.              The mother - In his judgment in October 2013 the District Judge said the mother is not able to meet the needs of the children [C64]. At C65 the District Judge said that the children each had complex needs and required specialist carers and would have to be placed separately from each other for those needs to be met. He accepted the evidence of Dr Edwards to that effect [C66].

57.              Dr Mair Edwards, the clinical psychologist said this in relation to the mother at E19:

i)                   She saw no improvement in the level of the mother’s ability to understand how her own emotionally traumatic childhood had affected her as an adult.

ii)                 She recorded that the mother had not sought any therapy or other remedial assistance with her emotional difficulties.

iii)               She expressed the opinion that the mother has ‘long standing /chronic low mood, reflecting the impact of her childhood experiences on her cognitions about the world and her life’.

iv)               She recorded that the mother continues to smoke cannabis on a daily basis.

v)                 She said that the mother could not identify any good reason why EF could not be placed with her, leading Dr Edwards to say that it remained her ‘opinion that [the mother] lacks insight into her difficulties and finds it very difficult to consider her children’s needs as separate from her own wishes’.

vi)               She said that the mother gave a ‘highly conflicted opinion on whether or not EF could be safely placed with her father’.

58.              After the care hearing before the District Judge the plan was for the mother to have contact under supervision once a month [C12]. She has done so but, it is suggested, she continues to live in the same chaotic lifestyle as before. Since she takes no part in these proceedings and, with the benefit of legal advice, does not seek to put any competing arguments before the court, it would be unnecessary and unkind to spell out why she cannot care for EF. Having read everything that is said about her I accept that she cannot. If she ever does read this judgment I use it to express my hope that she will find a way of sorting her life out and will find happiness despite the many profound difficulties that she has had to face.

59.              The father - He now lives on his own. He works full time in the hotel trade. It is now said of him that he has made some improvements in his lifestyle. He has worked with (i.e. received help from) a Children’s Centre in relation to ‘developing relationships and play with children, learning through every day experiences and healthy eating for children and how to encourage this’ [C154]; the worker there says that ‘his attendance is extremely good...[the father] is reflective and keen to ensure that everything that he does will have the best possible outcome’. It must have taken a great deal for this father to attend parenting courses when his children were in care and to make efforts to improve his lifestyle.

60.              However, he still binge drinks having misused alcohol since a young child (i.e. he said that he started when aged seven or eight, according to para 3.7.1 of Dr Edwards’s report in April 2013), lacks insight, does not understand the demands that would be placed upon him if he cared for this now very troubled young girl, lacks social support and, after years of not showing commitment to his children there is a significant risk that he would fail to sustain commitment to EF if she were to be in his care. Therefore the Local Authority and guardian both say that, whatever may be the inadequacies in the process of this case it is manifestly contrary to the welfare of this girl to be placed with her father and that long term alterative care is the only option.

61.              Contact between the father and EF – There was some confusion about the precise level of contact that had taken place between the father and EF and I am very grateful to Mr Cranfield for the help that he gave in clarifying this. Following the separation of the parents he did maintain fairly regular contact with the children until March 2013 when there appears to have been a gap until 3^rd July 2013. Then there was some contact in July and a further contact visit on 18^th September 2013. Then there was a gap in contact until February 2014 (when, it appears, the father ‘gave up’). Contact resumed on 17^th February 2014 and there have been eight contact sessions since then. Contact has had to be fitted around his work as this father has a very strong work ethos which has left some observers suggesting that his work takes priority. The contact has been of one hour’s duration only and occurs under supervision.

62.              Assessments of the father - In June 2014 the Local Authority carried out a core assessment which noted that the father had made some positive changes but felt that he did not have the experience, commitment or insight to care for EF adequately. There was then the assessment of Mr Gray to which I have already referred.

63.              He has been assessed by Dr Edwards and also by the independent social worker, Cheryll Chapillon.

64.              In relation to the father Dr Mair Edwards said at E33:

i)                   The father has started the process of reflecting on his life to date and demonstrated a better ability to consider other perspectives. However she thought that, the father having previously been dismissive of the opinions of others, he would now need ‘reassurance and affirmation from others’. She expressed the opinion that ‘the complex family dynamics, and ability to resolve interpersonal difficulties, remain vulnerability factors’;

ii)                 The father now has full time employment and his line manager reports positively on his behaviour at work. Dr Edwards says that ‘in relation to maintaining a relationship with the children, the father prioritised work ahead of contact’;

iii)               She considers that the father remains ‘vulnerable to mental health problems’ but notes that, based on self reporting, he does not experience depression now.

iv)               The father states that he no longer takes cannabis but accepts that he binge drinks. Dr Edwards says that ‘his risk of relapsing into problematic alcohol misuse is still present’.

v)                 There is no evidence that the father has engaged in criminal conduct since her previous assessment but, she says, ‘the antisocial attitudes and cognitive biases tend to remain, and as parents they may not therefore recognise or correct emerging antisocial attitudes or behaviours in their children’.

vi)               He still has a very weak understanding of the impact of his behaviour on his partners and children.

vii)             She regarded his parenting skills to be weak, with limited knowledge or appreciation of child development.

viii)           She concluded (at E35) that ‘although the father is currently more stable than he has been in the past, his own attachment difficulties will make it extremely difficult for him to provide the consistent emotional environment within which EF will be able to form secure attachment strategies…his early influences and experiences will continue to influence the choices he makes and impact on his responses, particularly when stress levels are increased’.

65.              At E37 she says as follows: ‘It is my opinion that the father still lacks insight into his parenting difficulties and still minimises the impact of his behaviours on his relationship and the children’s experience of him. I therefore have significant reservations about the father’s abilities to consistently meet the child’s emotional, social and intellectual development’. At E39 she said: ‘the main risks presented by the father are also related to his attachment difficulties but particularly his ability to meet the children’s emotional needs consistently. There are additional risks associated with alcohol misuse with the main risk now coming from binge drinking. It appears that the risk from future substance misuse has decreased significantly’.

66.              Ms Chapillon’s report is at E124 and is dated 12^th February 2015. She says that she accepts that the father has made some changes to his lifestyle but does not consider that he has changed sufficiently to give her ‘confidence that he could parent EF safely and consistently and meet all of her developmental needs.’ She considers that further assessment of the father is not necessary and would cause unwarranted delay. She regards it as significant that the father did not put himself forward at the time of the care proceedings as a potential carer of EF and regards the gaps in his contact as significant (although she thought that the gaps were longer than they actually were). She records that the father told her that, on his days off, he drinks alcohol and that ‘this could be eight cans of Stella or Fosters’. She thought that he was vague about the support network that he has, did not understand the extent of the responsibilities that he would be taking if EF came to live with him and did not recognise his own contribution to her current circumstances.

67.              The maternal grandparents - They were joined as parties to the care proceedings. Until the time of the care order in October 2013 all three children were living with them. The District Judge recorded their position up to the time of the hearing at C65 as being that, until that point, they wanted the children either to be cared for by them or by their daughter, the mother. However, at C65 he said: ‘they no longer support the mother’s application for the return of the children. They no longer offer themselves as carers’.

68.              Initially they had contact with EF once a fortnight after the care order was made. Then, in January 2014 their contact was reduced to once a month [C14]; there were reports that EF reacted aversely to this contact [C14].

69.              It appears that it was in about July 2014 the maternal grandparents decided that they should withdraw their offer to care for EF. They did so in the context that they had been ‘devastated’ by the removal of the children from their care at the time of the care orders and were not willing to undergo the distress of further assessment [C71a]. They have not featured at this hearing at all.

70.              The paternal grandmother - She is in her early 50’s. She suffers from osteoarthritis of the spine but is in full time employment and is fully mobile. She is a woman of a limited IQ and does not have legal representation. Her statement is at C156 and is dated 24^th November 2014. In it she said: ‘ I wish to put myself forward as a carer for EF should my son fail in his application to have EF returned to his care’. When she attended on the second day I was told that she accepted that she could not realistically oppose the Local Authority’s case that EF should not live with her; thus she did not seek orders in her own favour. I was told that she puts herself forward as someone who would support her son, the father, in his wish to care for EF.

71.              On 30^th July 2014 the Local Authority social worker carried out a ‘viability assessment’ of the paternal grandmother. The author of the report thought that she could provide for the basic needs of EF, including health and education but doubted that she could provide the security and stability that EF needed. The social worker was concerned about the amount of conflict within the parental family, the manner in which the grandmother had cared for the father, the lack of contact between her and EF since 2012, her negative attitude towards the parents and her ability to control contact between other family members and EF (C75)

72.              Dr Edwards considered that most of her psychological ‘scores’ relating to mental health were within normal range although she did have an elevated score on the ‘interpersonal sensitivity dimension’ (which focuses on feelings of inadequacy and inferiority, particularly in comparison to other people’ – E54) .  She also had a very elevated score on the paranoid ideation dimension which ‘appears to have arisen from her perception that others are to blame for most of her troubles’ [E54]. She has been assessed as having a ‘performance IQ’ of 82-91 but a verbal IQ of 64-73 [E52].

73.              The grandmother has been married three times and now lives with her fourth partner. Her first marriage was to the father’s father. They have three children. Their eldest is in his mid 30’s, lives in the north of England and is not in communication with the grandmother. The father is their middle child; the grandmother told Dr Edwards that she had no idea why he had gone off the rails and that she had placed him in care at the age of 11 or 12 after difficulties had arisen between him and her new partner [E57]. Their youngest son is nearly 30 and is studying at a college. The grandmother then married again and there were two children from that both of whom are in their 20’s and are now independent. She separated from her second husband who was violent [E59]. Her third marriage did not bear children and only lasted two years (she told Dr Edwards that ‘I’ve had three arseholes in my life – none treated me right’). She does not live with her fourth partner but, she says, may do [E60].

74.              The Local Authority carried out a ‘negative viability assessment’ of her which she does not accept. Dr Edwards carried out an assessment of her and the resultant report is at E44. It is dated 26^th October 2014 (i.e. over four months ago). In it she said:

i)                   The paternal grandmother has good practical abilities and could provide EF with appropriate physical care.

ii)                 Although the paternal grandmother is ‘limited in some aspects of her cognitive functioning’ it is Dr Edwards’s opinion that she does value children’s education and would therefore support EF’s learning to the best of her ability. It is also her opinion that the grandmother would be willing to accept additional help to support EF as she progresses through school.

iii)               The grandmother would ‘wish to provide EF with a home environment that would also promote EF’s emotional and social development’. However, Dr Edwards is concerned that the grandmother lacks insight into her own patterns of interacting with others and does not readily recognise or feel any sense of responsibility for the impact her choices in the past had on her parenting of her own children, or her relationship with them in adulthood. There is a risk of repeating patterns of behaviours which will not provide EF with an appropriate template of how to manage relationships.

iv)                Dr Edwards’s deepest concerns are in relation to the grandmother’s ‘ability to understand that if EF was placed with her she comes with a complex history that has already caused disruption to the development of secure attachment strategies and therefore EF will require more sensitive, insightful parenting than a child without such a history’. Dr Edwards goes on to say [E69]: ‘EF will require parenting that puts in place consistent, predictable boundaries and in our discussions the grandmother struggled to explain how she would do this. I am conscious however that the grandmother functions better in her practical skills as compared to verbal skills and it is therefore possible that her practical skills are better than her ability to describe what she would do in different circumstances’.

75.              The guardian – The guardian has filed two reports, which are at D1 and D11. I wish to stress that, since she filed them and, indeed, after she gave evidence, she considered the option of dismissing the placement application and leaving the care order in place further. As I have already said, so finely balanced did she and Mr Ellis (the child’s solicitor) regard the balance between adoption and fostering to be, she was unable to advance a recommendation and left it to me to decide which of the two would better promote the welfare of the child.

76.              In her first report the guardian had supported the Local Authority’s proposals for indirect (i.e. ‘letterbox’) contact only between the parents and EF following the making of a placement order saying at D5: ‘the paramount consideration must be to provide EF with the best opportunity to establish herself in an adoptive placement and the parent’s ability to positively support an adoptive placement. This does not preclude arrangements being reviewed in the future in the light of EF’s changing needs’. She was also supportive of there being continuing contact between the three siblings but says at D5 that she is ‘mindful that [the older children] have ongoing direct contact with their parents and at some point this is likely to have implications with regard to both the confidentiality of EF’s placement and the children’s understanding as to why they have different arrangements. Arrangements would need to be kept under review’.

77.              In her second report the guardian said at D19: ‘The father has made some personal changes and his home life appears to be more stable than it has been in the past. He has participated in three parenting assessments albeit there have been issues about the depth of the assessments undertaken by the Local Authority. Ms Chapillon…has reached the same conclusion as Dr Edwards and the Local Authority that the father could not provide EF with the level of care that she requires or ensure her future safety and welfare. I support that view’.

78.              In her first report the guardian also says at D3 ‘the issue is what, if any, changes has either parent made that indicate the safeguarding issues evidenced on 1^st October 2013 have been satisfactorily resolved subsequent to the conclusion of the care proceedings’. With respect to the guardian, that is not the issue. The issues, which could not be more important to the future welfare of this child, are to be found in the judgment of the President in the case that has been reported as  In the matter of A (A Child) [2015] EWFC 11:

‘It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have A adopted, to establish that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. See also Re R (A Child) [2014] EWCA Civ 1625. As Baroness Hale of Richmond said in re B, para 198:

“the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

79.              In Re B-S (ibid) the President had said: ‘The language used in Re B ([2013] UKSC 33] is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215’.

80.              In her first report the guardian expressed her recommendations in this way:

·                Whilst it is positive that both parents report that they have been able to make changes in their respective lifestyles there is no evidence to indicate that either parent has engaged in therapeutic interventions, or indeed identify the need to address the underlying factors identified by Dr Mair Edwards that impact on their personal functioning and significantly compromise their parenting capacity. Whilst I accept that caring for EF would not present the same challenges as managing the competing needs of all three children I do not consider that [the mother] or [the father] would be able to provide EF with the sensitive and emotionally attuned parenting she requires and their respective attachment styles identified by Dr Edwards are not conducive to promoting EF’s emotional wellbeing. I am unable to support instruction of an expert to undertake further assessment of the parents as has been put forward or any other further assessment of them. I would have significant concerns about the delay this would cause for EF.

·                There are some outstanding issues arising from the Local Authority’s assessment of the viability of a placement for EF with her paternal grandmother…These need to be resolved before I would be in the position to support a placement order.  The grandmother is aware that she has the opportunity to put her position to the court and the court can hear evidence from the social worker. Should the court decide that further assessment of the grandmother is warranted then this would cause delay. My recommendation is subject to the outcome of evidence that the court may hear in relation to the grandmother.

81.              The child - EF has not lived with her mother or her father since 2012. She went then to live with her maternal grandmother and remained there until the care orders were made in October 2013; at D4 the guardian says of the placement with the grandmother ‘the placement ended quickly with what appears to be limited preparation beforehand, a lack of direct work with EF following the move to assist her to manage the change and some delay in setting up contact with her grandmother after the move’. At D5 the guardian says that EF ‘has an understanding of her identity and significant family relationships. Whilst EF would achieve permanency should she be adopted and have the opportunity to develop lasting secure emotional attachments she is also likely to experience a sense of loss in relation to her birth family’.

82.              The care plan for the children at the time of the care order provided that the children would have weekly contact together [C14]; however, by December 2013 that had changed to an arrangement for contact to take place every school holiday [C14]. The reports from the carers have been that this child enjoys her time with her brothers, particularly one of them [C15]. What happened in relation to contact appears to have been this. A commitment was given within the care plan for there to be weekly inter sibling contact (i.e. 52 times a year). The Local Authority then reduced that to six times a year. The organised contact appears now to be at a level of three times a year with the rest of the contact between the siblings being left to the foster carers to organise. It is an immense credit to the foster carers that they have organised matters as they have, allowing the children to have significant amounts of contact together (as I understand it EF sees her brothers on average once a month).

83.              The psychologist, Dr Edwards, comments at E41 as follows: ‘It is of concern that EF has had two different foster placements after being removed from her maternal grandmother’s care, and that the insecure attachment pattern that I predicted if her situation was not stabilised has in fact developed. From the documents…EF presents as a young child with significant emotional and behavioural difficulties, associated with attachment difficulties, that are making her a more difficult child to parent’. Given the matters that I have already set out it is hardly surprising that that should be the case. How could a child who has experienced this background and this delayed planning be other than affected in the way that she has been? Dr Edwards goes on to say, as is again foreseeable, that EF’s difficulties now mean that she requires skilled parenting. (‘she will therefore require a carer/ parent who has better than average parenting skills, with solid knowledge of child development, and an ability to work collaboratively with services and therapists over the years to assist her to re-organise her attachment strategies and patterns’).

84.              An assessment was also carried out by Dr Edwards as to whether EF might be placed with one of her brothers. The report, which was not ordered until 15^th December 2014 [B169], was written on 5^th January 2015 [E90]. The Local Authority’s account of why there was this delay is contained in a case summary prepared by their counsel on 7^th December 2014: ‘[The current social worker’s] statement of 5^th December 2014 sets out the offer by the brother’s foster carers…to care for EF as a well as the brother. The foster carer informed [the previous social worker] of this in September 2014 by email. The previous social worker was about to leave the L.A. so she advised the foster carer to contact [another social worker] directly, which did not happen. The children’s guardian first heard of this offer on 2^nd December 2014’. Again, the Local Authority did not deal with this issue appropriately. It was surely obvious that, when considering options for this child, there should be enquiry as to whether any of the children could be reunited. The issue should not have been left to the foster carers to sort out.

85.              The report about reuniting EF with her brother of 5^th January 2015 is at E90 and contains the following two particular passages:

·                On the basis of the information gathered and my observations it is my opinion that there is potential for the sibling relationship between EF and her brother to develop and, in my opinion, it will be important for them to retain knowledge of each other’.

·                Having taken an objective, measured analysis of the information I have gathered about each child, I sadly conclude that it would not e in the best interests of either child to be placed together…they both retain the underlying difficulties that I identified in my previous assessment. It is my opinion that they both require individual placements’.

86.              Ms Chapillon - In oral evidence she remained of the same opinion. She said that the father did not give her confidence that he would put EF’s needs before work and it was very difficult to get an understanding about what he intended to do about work. She was concerned about his alcohol use as she considered his current drinking pattern to amount to binge drinking. She was concerned that if he became stressed when caring for EF he would resort to drinking as in the past. She said that she did not get the sense that the father had any understanding of what EF would need. He seemed to blame the mother and the number of social workers who have been involved in EF’s welfare.

87.              Therefore Ms Chapillon did not feel that he had any understanding of the professionals’ concerns and felt that he did not take any responsibility for what had occurred. She felt that work was very important to his self esteem and that he would find it very difficult not to work.

88.              She accepted that she had not been asked to assess the father in the light of the pros and cons of placing EF elsewhere. Thus she had not been asked to look at the competing merits of what would happen if EF were not to be placed with him – and therefore, although she expressed her concerns about the father she did not address, for instance, the effect of this child losing all connections with her family.

89.              She said that she believed that she had carried out the assessment that she was asked to do but she did not think that the assessment could have gone further without placing the child with the father and testing out his parenting in that way; I don’t accept that at all. She could have asked to see him for a succession of contact sessions, for instance. She saw the father twice for an hour each time; she said that she did not ask to see the father with EF during contact because of ‘EF’s timescales, the number of professionals that had been involved with her and the fact that she did not think that viewing one hour of contact would be helpful’.

90.              Asked whether the assessment that she had done was a sufficient basis for saying that this father cannot care for this child and she thought that it was. On its own this would not have been a sufficient parenting assessment but it has to be taken as part of the overall evidence that is now available. In fact there is now a great deal of evidence available.

91.              Dr Edwards – Because the video connection between here and Caernarfon failed she drove down from North Wales at very short notice on the first day of the hearing and gave evidence on the second day from the witness box.

92.              Since preparing her first reports in October 2014 she had seen the child again on 16^th January 2015 [E92]. She said that EF remains a child with emotional difficulties. She has not yet formed secure attachment strategies. Her behaviour, when Dr Edwards saw her, was more settled than when she had seen her previously because they are being managed very well by the foster carers and the school. She is in the very early stages of being able to manage her emotions. She will need very careful and skilled parenting. It is a tragedy that she will now have to move from her current foster carers. Her behaviour can be very challenging and it will take a high level of insight from her carers if that is to be controlled.

93.              Dr Edwards thought that the father shows little insight into her needs. He has stabilised his life since the care order was made but he does not have insight into how he contributed to what happened to EF and has no insight into how he would deal with the demands of caring for her.  He does not understand that EF has been traumatised. EF has not been in his care since June 2012 and the father does not understand the reasons for this; he tends to blame the mother.  

94.              When she first met the father for her first report (undated but dated April 2013 and retrieved by me from the court file) he ‘presented with an air that it was an inconvenience for him to attend the assessment’ (para 3.1.2 of the report) ; Mr Cranfield suggested that the father had deliberately sought to sabotage the assessment, leading to the question from Dr Edwards: ‘why should be have wanted to do that?’. She felt that he did make some greater effort in relation her current assessment but the same background difficulties (from the father’s past and his lack of insight) remain. His low verbal IQ cannot explain on its own his lack of insight – his behaviour (e.g. in not seeing EF for so long and not involving himself in the care proceedings) is particularly informative.

95.              Dr Edwards said that the father was difficult to engage. He found it very difficult to discuss emotional issues because he was very defended and needed to voice his self-reliance. He said that he did not engage in the past proceedings because of his workload and the views of his then partner. Dr Edwards said that there are an awful lot of single parents who care for children; however the father’s social network seems weak and he did not seem to know a lot about the people that he was proposing as supporters. The relationship between the father and the paternal grandmother is one that has been fractured in the past and one cannot have confidence that it will not recur, Dr Edwards thought; the rejection that arose when the father was put into care as a child will not be lost easily. Dr Edwards agreed with Ms Chapillon that, if the relationship between the father and his previous partner had not broken down, it is very unlikely that he would be wishing to care for EF now.

96.              As to the paternal grandmother, Dr Edwards was particularly concerned that, when her then husband started to physically abuse the father, the response of the grandmother was to place the father in care as a teenager. The grandmother also takes offence easily and she foresees difficulties between them as there have been in the past.

97.              Even though the father is drinking less, it is very clear that he is binge drinking Dr Edwards said. He is therefore very much at risk of abusing alcohol in the future.

98.              It would be manifestly harmful to test out whether the father could care for her by placing her with the father by way of interim assessment.

99.              She accepted that she had not been asked to carry out a comparative welfare assessment where the pros and cons of adoption as against placement with the father were weighed up. She said that she recognised that this is an important exercise but felt that, where the father is demonstrated to have such a lack of parenting skill, it is very difficult to rule in that option in the comparative exercise. She also stressed the importance of skilled life story work if EF is placed for adoption and also of her maintaining contact with her brothers. She was not asked her opinion on the competing merits of fostering and adoption.

100.          Mr Gray, the social worker – He became the social worker in this case on 24^th October 2014, he said (although he wrote the initial parenting assessment on 16^th October 2014 when he was not the child’s social worker).

101.          He said that a family was identified ‘before Christmas’ who might provide suitable adopters for EF. He said that it is in its early stages and, if a placement order is made, he would go to the next stage of meeting the people proposed. The court ordered on 3^rd September 2014 that ‘the Local Authority have permission to advertise EF anonymously for adoption or a long-term fostering placement’[para 21]; Mr Gray said that the possibility of a long term foster placement had not been followed up. Para 15 of the order provided that the Local Authority shall file and serve its final evidence by 5^th November 2014, this shall include evidence regarding placement options.

102.          He said that EF is hyper vigilant, controlling, has explosive tantrums and difficulties with her peers. She needs a very skilled placement.

103.          The father – He said that he does not think that he has been assessed properly by the Local Authority. He accepted that he absented himself from the care proceedings. He was asked why he had done so and could not give any real answer for this. He said that he had thought that the children should not have been taken away from the mother. He thought that it was better if he took himself out of the situation. He had to work and could not take off work for contact. He was drinking and, he said, taking drugs when the children were first taken into care. None of that answers why he did not have any contact at all with EF from September 2013 to February 2014 and did not participate in the care proceedings, this is strongly suggestive of a lack of commitment to the children.

104.          As to drink, he said that he does have a drink after work and on his two days off. He can’t drink during the week beyond a single drink because of his responsibilities at work. When he does drink on a day off he drinks eight cans on average. He does not think that drink would be a problem if EF was in his care as he would not have any drink in the house. I am left of the very clear opinion that drink has been a chronic problem for this father and that he remains very vulnerable to a return to very excessive drinking, particularly if he were not to be working. In the first report of Dr Edwards there is this passage: ‘The father stated that he began to drink alcohol and misuse drugs from a very early age – he thought around seven to eight years old. He stated that at this young age he would drink ‘whatever I could get my hands on’…he reported drinking until he passed out or spewing up and reported that he would start drinking around noon and then continue throughout the day. He acknowledged that he had been drinking heavily right through although decreased his intake when he was in employment’.

105.          He would not need any support with the care of EF but if he did when he went to work, he would ask his mother to help. He said: ‘I could not say what EF would need because I have not had her in my care since 2012’. He said that he had an excellent relationship with his mother. He would give up work if EF came to live with him; however he then went to say that the reason why he had not participated in the care proceedings was because he did not want to be on the ‘dole’. I do not think that the father would maintain his stance of not working. He spoke of how much he had learnt by doing the parenting course referred to at C154 (and supplemented by an email at C155A).

106.          The guardian – She was the guardian in the care proceedings. She remained of the opinion that EF could not return to live with her father. She regarded the Local Authority’s approach to this case as having been entirely unsatisfactory. The approach should have been to try to find a placement with an open mind to seeking foster carers as well as adopters.

107.          She thought that the Local Authority’s assessments of the father were inadequate and that the report of the independent social worker was not of the quality that she had expected.

108.          Law – I am grateful to the eminent Bristol barrister, Zahid Hussein, for helping me formulate this single sentence of principle: Nature, law and common sense require that it be recognised that the best place for a child to live is with her natural family unless, exceptionally, proven and proportionate necessity otherwise demands. That reflects the jurisprudence of Re B [2013] UKSC 33 and the well known judgments by Lady Hale, Lord Wilson and Lord Neuberger. Of the dicta in Re B the President said in Re B-S [2013] EWCA Civ 1146: ‘The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215 [22]’.

109.          The fact that a care order is currently in place does not in any way dilute the importance of those principles. If, consistently with her welfare,  EF can return to the father, she should do – it is not just a question of weighing up the competing merits of the three remaining options (father, fostering and adoption) and seeing which I, on balance, consider to be best. The options of fostering and adoption only arise if, consistently with her welfare, it is not possible for EF to live with her father. The court should put in place the welfare based arrangement that least interferes with her right to respect for a family life with the one member of her family who seeks to care for her, her father.

110.          Article 8 of the European Convention on Human Rights is heavily engaged in this case. It states that: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …for the protection of health or morals, or for the protection of the rights and freedoms of others.’

111.          The father’s application falls under The Children Act 1989. He seeks a child arrangements order under section 8 which would discharge the care order under section 91(1). That application is governed by the welfare provisions of  section one of that Act and must be applied in accordance with the principles of Article 8 of the Convention (which are entirely consistent with the Convention). Thus the welfare of EF is the paramount consideration and the court must consider the checklist in section 1(3) of the Act (which I will run through shortly).

112.          Before I could make a placement order I would have to dispense with the consent of the parents to adoption on the ground specified in section 52 (1)(b) of the Adoption and Children Act 2002 – that is on the grounds that the welfare of the child requires me so to do. In considering the provisions of section 52 I must consider section 1(4) of the 2002 Act. The word ‘requires’ in section 52 is plainly chosen as best conveying the essence of the Strasbourg jurisprudence; that is, it implies an imperative rather than something that is merely optional or desirable - EH v Greenwich [2010] EWCA Civ 344. Ryder LJ summarised the position in the case of Re R [2013] EWCA Civ 1018: ‘So far as section 52 of the 2002 Act is concerned, the judge had to be satisfied that the welfare of each of the children required their parents’ consent to be dispensed with. In other words, their welfare necessitates adoption and nothing else short of that will do. That formulation is derived from the terms of section 52 as explained by this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 CA at paragraphs 113 to 119 inclusive and, most recently as reiterated by the Supreme Court In the matter of B (A Child) [2013] UKSC 33’.

 

113.          If I do not make the order that the father seeks I must consider the application for a placement order by having regard to the terms of the 2002 Act. The relevant parts of Section 1 of the 2002 Act provide as follows (I have not included ss 5):

(1)          This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

 

(2)          The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

 

(3)          The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

 

(4)          The court or adoption agency must have regard to the following matters (among others)—

 

(a)              the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

 

(b)              the child’s particular needs,

 

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

 

(d)             the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

 

(e)              any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

 

(f)               the relationship which 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,

 

(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 otherwise to meet the child’s needs,

 

(iii)             the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5)          …

(6)          The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7)          In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

(a)          coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)         coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.

(8)      For the purposes of this section—

(a)     references to relationships are not confined to legal relationships,

(b)     references to a relative, in relation to a child, include the child’s mother and father.

 

114.          I also remind myself, consistently with the Darlington case that I have already cited, that it is for the Local Authority to justify its applications and to substantiate its proposed care measures on evidence. This is also made plain in the European case - P, C and S v United Kingdom [2002] 2 FLR 631.

115.          Fostering / adoption –Black LJ said as follows in relation to the distinction between fostering and adoption in the case of Re V [2013] EWCA Civ 913:

·                [95] My difficulty with that is that I do not think that fostering and adoption can, in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue.

·                [96]. With that caveat, I make the following observations:

i)                   Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.

 

ii)                 Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.

 

iii)               Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. 

 

iv)               Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).

116.          Options – Child arrangements order to father. This would have the very real and important advantage of allowing EF to be brought up by her father, who loves her and wants to care for her. He has had limited but good contact with her. He has pulled his life round, to an extent, and has shown commitment to the parenting classes that he has taken. He is an industrious father who has the current support of his mother. A placement with him would mean that EF ceased to be in institutional care and maintained the possibility of contact with her brothers, her mother and other family members. She would retain her natural identity.

117.          Against that is that for many years this father failed in his commitment to EF –he absented himself from the care proceedings, did not co operate with the assessment by Dr Edwards in 2013 and maintained a lifestyle that was alien to that of a responsible parent. Prior to 2012 he offered her a home life where she experienced very significant neglect. He also has limited understanding of what EF now needs, despite attending parenting classes and has very little understanding of the demands that she would place upon him. 

118.          In my opinion there is a very real risk that his commitment to her would once again fail and she would suffer significant emotional harm. I also accept the evidence of Dr Edwards that the father binge drinks and, given his past history of chronic and excessive drinking, I think that there is a very real risk that he will revert to that, particularly if he did give up work. I do not think that the relationship with his mother is such that he could work in association with her in the long term to promote the welfare of EF. Finally I can well understand why Dr Edwards says that the father’s own background will make it extremely difficult for him to provide a consistent and child focussed environment.

119.          Thus I think that it is highly unlikely that he could meet the emotional needs of this demanding girl and there is a strong risk that she would suffer emotional harm in his care.

120.          Placement for adoption – This would allow EF to become integrated within a new family and secure within it. It would allow her to experience lifelong commitment from her new found family. It would mean that she remained a part of that family in adulthood and would not be involved in institutional care as a child. She would be protected against applications by her parents to disrupt her placement.

121.          The disadvantages of placing her for adoption would be that she has an important and established relationship with her brothers and, to a lesser extent, her father. Despite having been given permission to seek prospective adopters over the past seventeen months the Local Authority has not found any (beyond the preliminary enquiry that it has received). EF will not be an easy girl to place. Given the difficulties that the Local Authority has already had in finding any adopters and also its past mishandling of EF’s case, there is a very real risk that the Local Authority would not search properly for adopters who would promote contact between the siblings and, in any event, adopters might well find such contact difficult to accept (due the boys’ continued contact with the parents). A placement order would leave the Local Authority in sole control. An order for contact under section 26 of The Adoption and Children Act 2002 could only sensibly continue until placement (since otherwise any adopters would be directly involved in any applications to vary the contact) and, further, an order for contact would make it very difficult to find adopters in any event (according to the Local Authority).

122.          Further, a placement order would lead to the Local Authority continuing to abandon any investigations of long term foster carers. The suggestion that they would twin track this case between adoption and fostering is a repeat of the assurances that the Local Authority has so dishonoured for the past seventeen months. Thus, I cannot make a placement order on the basis that this would then allow the Local Authority to twin track between fostering and adoption. The result would be that fostering would not be investigated – the Local Authority does not support it and a placement order would be seen as a green light to the Local Authority continuing as it has been doing over the 17 months.

123.          Fostering – Fostering would mean that EF was brought up by skilled and trained carers who would have the support of the Local Authority through the care order. It would mean that, although EF was not living with her father, she could continue to see him, her mother and the boys. She would retain her natural identity and, if the father does continue to improve his circumstances, fostering would allow flexibility within that relationship.

124.          The disadvantages of fostering are those identified in the judgment of Black LJ. EF would not have a permanent place within her new family and would be in the care of an institution and not a family. She would be susceptible to applications by her family members and, in late adolescence, may well have to leave her foster family as part of pathway planning. The Local Authority would remain in control of her arrangements since it would retain the dominant parental responsibility under section 33 of The Children Act 1989

125.          My analysis – This case has caused me immense anxiety. It is the most extreme example of institutional failure that I can remember. I have given it a lot of thought.

126.          I cannot return this child to her father in accordance with my duty to place her welfare as the paramount consideration. I recognise the efforts that he has made but I accept that he cannot meet her emotional needs and that a change in her circumstances so that she lived with him would leave her exposed to the significant risk of emotional harm through neglect. I do not think that the father has really thought through the responsibility that he would bear for her. I do not think that he would maintain his commitment to her or to not working, despite what he currently states. If he did not work he would be likely to drink more. I do not think that the support of his mother or of his network of helpers could mitigate these detriments to the extent that would allow it to be in the interests for EF to live with him.

127.          I find the balance between making a placement order and dismissing it very difficult indeed and so I have turned to the welfare checklist in section 1(4) and worked through it.

128.          EF cannot express her wishes but she has strong feelings for one of her brothers in particular and has an existing relationship with both of her brothers and with her father. She also has contact with her mother. She will suffer the distress of moving from her current foster carers and I am very concerned about the number of important relationships that she stands to lose. Not only has she moved from her home with her parents. She then lived with foster carers for a short period but spent a long time with her maternal grandparents. She then lived with one set of foster carers before moving to the current ones. I am concerned about her now losing all of her familial relationships as well. I have absolutely no confidence at all that the Local Authority would take any effective steps to support any family relationships if a placement order were to be made. Owe could I say otherwise on the strength of the history that I have set out?

129.          EF needs a permanent home at least during her childhood. She could find a home through fostering but that would not continue into her adult life. An adoptive home would. She will also need skilled carers who are able to meet her complex demands. I have very real doubts about whether the Local Authority would ever find an adoptive placement for her; they have been trying for seventeen months and have not done so despite having abandoned any attempt at finding a long term foster home as an alternative. Like the guardian I think it highly likely that the Local Authority would continue to make some enquiries about an adoptive placement but allow the issue to drift. If they could not identify potential adopters over the past seventeen months (from when EF was aged 3) the chances of them doing so now are very slim indeed.

130.          EF also needs to maintain her family relationships if possible especially with her brothers. I think it highly unlikely that the Local Authority would promote this. Like the guardian I think that it is highly likely that, if they did find adopters, it would lead to an ending of all direct familial contact.

131.          The effect of her becoming an adopted child would be that she had a permanent home and secure family life, if it could be found. However, later in life she would also know that she had lost all of her natural family ties. The court is required to consider the welfare of the child throughout her life and the effect throughout her life of being adopted. If a placement order is not made it would mean that she would preserve those relationships and also her own identity. The Local Authority would be at least as able to find long term foster carers for her as it will adopters, probably more so.

132.          EF is now 4 ½ and has the background that I have described. Although it may very well be that the court would have made a placement order in 2013 if that application had been before the District Judge, things have now moved on. She has established a pattern of regular contact with her brothers and now sees her father for good and loving contact. The father has re-engaged in her life.

133.          She is at risk of suffering harm through continued delay and from loss of her family relationships. She is also at risk of suffering emotional harm if she does not find a secure and skilful home soon.

134.          I have already described the relationship that she has with her family members. Those relationships are important.

135.          Conclusion –  I do not consider that it has been demonstrated to me that the welfare of EF requires that she be placed for adoption. I do not consider that it has been demonstrated to me that the less interventionist solution of fostering is inconsistent with her welfare. I think that the detriments of adoption outweigh the advantages as matters now appear.  I think it highly unlikely that the Local Authority would twin track the case between fostering and adoption if a placement order were to be made. I think that such an order would be highly likely to result in all contact between this girl and her family ending. I do not consider such an order to necessary or proportionate and I do not consider that the making of such an order would place her welfare as the paramount consideration throughout out her life.

136.          I therefore dismiss the application for a placement order. The effect is that EF will remain in care and will continue to have contact with her natural family. I will hear submissions if necessary on another occasion as to the arrangements for contact.

HHJ Stephen Wildblood QC

4^th March 2015.