England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NORTHAMPTON
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF P and A (CHILDREN)

		11.2.2015

JUDGE HUGHES:

Introduction and Parties

1. The children with whom I am concerned and whose welfare is my paramount consideration are P, who was born on 12 February 2013 and therefore very nearly two years old, I think two years old tomorrow, and A, born on 8 August 2014, who is six months old or thereabouts. The children are represented in these proceedings through their Guardian, Michele Lowe, by Mr Turner of Counsel. Both these children were made the subject of police protection orders on 18 August 2014 with interim care orders being made on 20 August 2014. This is local authority's application for care and placement orders in relation to each child. The local authority are represented by Mrs Paige of Counsel.
2. The mother of the children is MH. The mother lacks capacity and is represented through the Official Solicitor by Ms Walsi of Counsel. The mother has learning difficulties and the Official Solicitor on the mother's behalf does not oppose threshold and the applications for care and placement orders. The court recognises that the mother would, under normal circumstances, wish to care for her children.
3. The father of the children is RS. He is represented by Ms Gooderham of Counsel. His position until the first day of the hearing and until after the hearing the evidence of the jointly appointed expert Dr Jo Stephenson that he opposed the local authority's application and opposed threshold in part. During the course of the first day of the hearing threshold was agreed and I shall come to that in due course.
4. Father has a history of drug abuse, criminality and imprisonment. Historically he has not co-operated with his drug support agency and has not been collecting his methadone prescription. He tested positive for heroin and cocaine in June of last year and tested positive for cocaine, crack cocaine and heroin in January of this year. The period of this latter test covered by hair samples was approximately October 2014 to the beginning of January 2015.
5. His opening position was that he wanted the proceedings to be adjourned and for the children to remain in foster care so that he could complete a detoxification programme and therapy in relation to his psychological problems and drug addiction. As I have said, his position, to his enormous credit, changed after hearing from the expert in the case. Clearly he feels that he cannot consent to the orders sought, but does not actively oppose them and the court recognises what a truly heartbreaking situation this must have been for him and of course the mother.
6. I have mentioned the Guardian at the start of this judgment. She supports the local authority in relation to their applications for care and placement orders.

Applications

7. The applicant applies for care orders and placement orders in respect of both children. On 28 August 2014 a Part 25 application was made on behalf of the mother for a cognitive and capacity assessment. A certificate as to capacity was filed on 8 October 2014 and the local authority subsequently applied for placement orders.

Chronology of Proceedings

8. Following police protection of the children proceedings were issued on 19 August and directions were made on the same day with interim care orders granted on 20 August. The case has been subsequently timetabled to final hearing with very little delay.

Key Issues in the Case

9. The key issues in the case have been the effect of the mother's learning disability upon her parenting;

Whether the children can be parented by either or both parents;

The father's history of serious offending and imprisonment;

The father's drug use;

The nature and dynamics of the parents' relationship;

The ability of the parents to meet the children's needs and keep them safe;

I record, for the avoidance of doubt, that these issues have been comprehensively dealt with in the evidence.

Background Circumstances

10. The parents have lived together since the summer of 2012 following father's release from prison, where he served a sentence for robbery. He was sentenced to nine years in prison, but released after serving six years of his sentence.
11. P (and later A) became known to Northamptonshire County Council in October 2012 as an unborn child following mother reporting that RS had come out of prison, was on probation and was using crack cocaine. There were reports of him controlling MH by not allowing her out and said that if she dared to leave him she would not see her baby.
12. It was evident at the outset that the mother had learning difficulties and at that time was 21 weeks pregnant with P. An initial assessment completed by the local authority on 26 October indicated that the mother suffered from asthma, hayfever, anxiety and cancer, which was in remission.
13. The mother's own history is a sad and troubling one. Apparently as a child she suffered from low self esteem and would always go out of her way to please everybody, which made her susceptible to exploitation. At the age of 13 she was the victim of sexual abuse perpetrated by her brother and suffered domestic abuse while in a previous relationship which involved attempted strangulation by her partner at that time. As a child she attended a special school due to her moderate learning difficulties. These difficulties are still apparent and the mother is unable to read or write.
14. Health professionals were not notified about her pregnancy with P until she was approximately 21 weeks and following P's birth on 18 February 2013 midwives reported that the mother was unable to take up advice and instructions given and failed to understand the needs of the newborn baby. As a consequence RS is reported to have been P's main carer whilst at the same time being mainly on methadone and accessing support from a drug service provider.
15. Father's background and history is also a sad and difficult one. He grew up in the care of his maternal grandmother until he moved back with his mother when he was 16 years old. He had a troubled time at school and later at college in Nottinghamshire, where he was permanently excluded for assaulting a member of staff.
16. He then graduated into a life of crime when he joined a local gang. He was sentenced to three years in prison for robbery when he was only 17. It seems that there was a brief period of stability after this initial prison term and he entered into a relationship and fathered a child, but that relationship ended in 2002. Shortly thereafter he resumed his criminal activities, fuelled by his drug habit, and was later imprisoned for robbery with violence in 2006 serving, as I have said, six out of nine years and being released on 1 March 2012.
17. On his release he moved to Northampton where his brother C lives. It seems that C is the father's only confidant and support, they having shared difficult childhood experiences.

Summary of Events Leading to Proceedings

18. On 2 July 2014 the Community Midwife, Justine Watt, made a referral to the local authority in which she raised concerns regarding the welfare of P, the mother and her unborn child. She was concerned that at 34 weeks pregnant mother was suffering verbal and emotional abuse from her partner while he was under the influence of heroin. She has learning difficulties and was being told to leave the family home and leave P in the care of the father. Mother was isolated, vulnerable and a victim of father's control and manipulation. The home conditions were cramped and sparse and the family was in financial difficulties. The mother struggled to keep appointments and the parents had refused to engage with the CAF which had been offered during the early stages of pregnancy.
19. An initial assessment was carried out with the social worker recommending that a core assessment be undertaken. The case was transferred to the Child in Need team, allocated to the current social worker on about 18 July 2014.
20. The current social worker attempted to contact the parents by telephone, but without success. He made an unannounced visit on 28 July. On entering the home he noticed that P came to him straight away and without any awareness of stranger danger. Father responded to all the questions and mother was virtually silent. Father informed the social worker that he was using heroin at the cost of £20 a day. The social worker formed the view that the father was the main carer for P and in full control of household.
21. The local authority contacted Marple Access, which is an organisation providing support for those who misuse drugs. The key worker informed the local authority that RS tested positive for heroin and cocaine in June, had relapsed, was no longer on methadone and had ceased engaging with the service.
22. In late July the local authority contacted the midwife and health visitors, who expressed concerns regarding the welfare of P and the unborn baby.
23. On 8 August there was an initial child protection case conference which both parents attended. The father's behaviour during the meeting was concerning. He was described as disruptive and controlling. Mother admitted to the conference that she was scared of him. The conference concluded that P and the unborn baby were at the risk of significant harm and they were made subject to a child protection plan under the category of neglect.
24. On 8 August A was born. Father then informed the local authority that he had secured a two bedroom property in Duston and planned to move by 12 August.
25. On 11 August the father failed to keep an appointment with Spring House for a methadone prescription. Spring House was contacted and informed the local authority that the father had failed to engage with the service since he was referred to them on 1 August. The local authority requested an emergency appointment for father. He was subsequently seen by a doctor on the same day, given a methadone prescription, but failed subsequently to collect his prescription.
26. The local authority were so concerned about the situation that they carried out daily visits. P was left alone in the living room with the door shut, the TV on and a wet nappy. He looked sad. On the occasion of the visit father and his brother were in the kitchen. Father's presentation was described as erratic, aggressive and unpredictable.
27. On 14 August the matter was presented to the panel of senior management requesting the initiation of proceedings. The panel concluded that the case did not meet the criteria and advised that the child protection plan should continue. I comment that in view of the state of knowledge at that particular time that seems a surprising decision.
28. On 15 August 2014 a family support worker visited the Duston address. No-one was at home. She went to the old address and found the family there. A was left in a bedroom with the door closed. She was on a pushchair. P was on his own in the main living room with the door shut and a dripping wet nappy. Father and his brother were in the kitchen smoking. Two social workers visited later in the day. The parents were challenged about their lack of co-operation and honesty. The father became aggressive and threatened to walk out of the relationship. The social workers believed that he was at that time under the influence of drugs and that P and A were at risk of harm.
29. The parents were asked to give consent for the children to be placed in foster care. The father refused and asked the social workers to leave the house. He put the mother and the children in the car and drove off to an unknown destination. This prompted a police search. The family were finally located on 18 August when their car was seen in Northampton, the children were police protected and, as I have said, interim care orders were granted on 20 August 2014.
30. There is a report which I have read from the children's foster carer which deals with the physical and emotional state of the children when they were first placed with her. I am bound to say that it makes for sorry reading as the children were clearly in a neglectful state.

Expert Evidence

31. Jo Stephenson is a consultant clinical psychologist, has assessed both parents comprehensively and prepared a lengthy report dated 25 October 2014. In addition she has provided written answers to questions filed after the issues resolution hearing. Her extensive qualifications are set out in her report and I am entirely persuaded that she has conducted a thorough, comprehensive, but sympathetic assessment of the parents' respective parenting capacities.
32. She records at the outset of her report that the mother was found to lack capacity at the time of her assessment, but both parents presented with learning difficulties, complex mental health needs, personal trauma histories and a very limited support network. She says:

'As a result they have tried to care for their family, but experience a number of difficulties, many of which they lack insight about regarding their impact on the children.

33. In particular in relation to RS she identifies that he has an avoidant attachment style, that is 'angry – dismissive'. She says:

'This style is characterised by an angry avoidance of others with high mistrust, high self reliance and a low desire for company. Its key characteristic is high anger. Individuals with this style usually need a high level of control over their lives, are extremely self reliant and typically argue with those around them and are denigrative of others. They will have problems making relationships, but will interact with others through their anger. Individuals such as RS with this style often have interaction with close others and family involving anger and resentment.'

34. She also identifies the father has learning difficulties and a lower IQ in the borderline range. His problem solving regarding parenting is negatively affected by his lower verbal functioning and processing speed difficulties. As a result he has struggled to effectively parent.
35. So far as mother is concerned, she reported to Dr Stephenson a number of risk factors that have negatively affected her mental health to date to include significant learning difficulties; child sexual abuse; child physical abuse; child emotional harm; domestic violence; sexual traumas in adults; unemployment; and within family abuse or trauma. As a result:

'She describes a history of unprocessed trauma and difficulties. MH also reports difficulties regarding her level of functioning.'

She says in relation to the mother:

'Young children are stressful to care for and demand a high level of practical and emotional attention. If an adult such as MH with severe learning difficulties feels unable, unsupported and depressed they are not going to be able to meet the children's needs. This will create a cycle of unmet needs for the parent and child and a dangerous situation regarding levels of risk. MH has struggled to recognise, understand or process her emotional needs for many years. As a result she is not going to be able to understand the constantly changing expression of developmental need by a child to regulate her own mood.'

36. All this leads to her conclusion, which she reiterated in the witness box, that neither parent was capable of providing adequate care for the children in the future and clearly it was an issue for her that the father has learning difficulties, mental health concerns and personality traits that have made it difficult for him to engage with services in a different way.
37. I record that in her answers to additional questions posed after the issues resolution hearing she was asked whether father would benefit from therapeutic intervention and it was clear from both her written and oral evidence that she felt that he would, making it clear that detoxification and him ceasing abuse of drugs was an essential pre-condition. She says in terms:

'If RS were able to cease using substances and maintain a level of stability in his life he would be eligible for mental health services and therapy. Unfortunately, in the United Kingdom individuals are required to be abstinent from substance use before deeper and more meaningful therapy can take place. This is because of the need to work with emotional wellbeing, monitor use of strategies, explore reflective thinking, remember work completed in sessions and prevent further neurological impairment.'

38. In oral evidence she made it clear that the father's capacity to care for children could only be addressed if his own needs were addressed first and she saw the timescale broadly as follows; firstly, drug rehabilitation for at least six months; secondly, therapeutic intervention for at least 24 months. RS has, to his enormous credit, made contact with an organisation called S to S (That is to say Substance to Solution), which appears from the correspondence to be offering him a chance of a residential rehabilitation after some preliminary work which will be due to take place after April 2015. Dr Stephenson's view is that this will take at least six months due to the severity and longevity of his drug addiction. She has, I note, some experience in this field and has experience on planning pathways to recovery. Thereafter she said he will need at least two years in therapy. In assessing this, as she told the court in oral evidence, she has to look at the whole of his life experiences, which include not only his very tragic upbringing and background but also the probability he has suffered head injuries that may affect his neurological performance. She remained concerned that anger was a feature in his life and there was no reason, she said, why he could not commence some sort of anger management therapy in the meantime. After attending a drug rehabilitation centre he would, of course, be monitored in the community by a drug support worker. He would be likely to find therapy difficult and she said that there was a high risk that he would slip back into drug use.
39. In summary the prognosis for change within any child's timescale is bleak. In fact, she said in her letter of 6 February 2015:

'It is unlikely that RS will be able to achieve the change that is required in the children's timescales. This is a result of the complex and long term nature of his difficulties, cognitive difficulties, social isolation, ongoing substance misuse and personality difficulties, citing ...' as she does '... his long and complex history.'

40. She was cross-examined as to whether any of the timescales that she set out could be foreshortened in any way, but she was adamant that they could not and the timescales that she expressed, she said, were the minimum timescales. I accept her assessment in this regard.
41. It is right that I should also record for the sake of completeness that both parents were subject to a parenting capacity assessment by Sarah Lowe, an independent social worker who has experience in re-unification and complex case work. She was not called to give live evidence, but I record that her work was thorough and she, in common with the other professionals in the case, made it abundantly clear that both these parents love their children very much. It was a measure of her balance that she was able to record positives in contact and her recommendation nevertheless was a negative one in relation to any aspiration the parents may have to care for their children.
42. Although I have only heard from one live witness I have read all the assessments of the parents and the filed evidence in relation to the case, including the parents own statements. I have also seen the final amended threshold document, which is an agreed document between the parties. Threshold criteria under Section 31 of the Children Act 1989 is therefore crossed and the making of orders in accordance with the local authority's application are not opposed, although not conceded.

The Guardian's Evidence

43. I have read with care the final assessment of Michele Lowe, the Guardian in this case, and I accept her assessment of the risk of significant harm to these children if they were cared for by their parents and her analysis of their capacity to meet the children's needs. She says:

'They have neglected the needs of the children on a number of occasions as documented and do not appear on some occasions to recognise their needs. They have failed to act on social work advice in relation to the safety and care of the children, failed to engage with services to assist them and their parenting.'

44. She says that the children, now in foster care:

'A is developing age appropriately and there are no concerns in respect of her. P demonstrates some developmental delay but has made significant progress in foster care, suggesting that when he has the correct level of stimulation and care his development progresses.'

45. Crucially of course in her report she recovers the realistic placement options. It is her assessment, which I accept, that it is not safe for the children to return to the care of their parents and she did not support the father's original suggestion of a delay while therapeutic interventions and drug rehabilitation took place. Obviously as a consequence of what the court heard in evidence the timescales make this suggestion out of the question and delay, as she said:

'Could harm their ability to form new attachments with prospective adopters.'

I agree with her in relation to that observation.

46. She examines in her report the relative advantages and disadvantages of long term fostering and adoption and it is her clear recommendation that the welfare of these children will best be met by them being placed for adoption. It is her firm view that adoption is the only satisfactory option for these children in these circumstances and I agree with her observations.

Law

47. I remind myself that Hale, LJ (as she then was) said in Re C and B (Children) (Care Order: Future Harm) [2000] 2FCR 614 at paragraph 33:

'... under Article 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that then are there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be "necessary in a democratic society."'

There is an overwhelming provenance of evidence in relation to the necessity of the court intervening in this case.

48. I have firmly in mind that under normal circumstances the best person to bring up a child is a natural parent and the powerful remarks of Mr Justice Hedley in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 and the toleration that society must have to the very diverse standards of parenting:

'... including the eccentric, the barely adequate and the inconsistent.'

49. I also adopt and agree with the propositions advanced in Re MA (Care Threshold) [2010] 1 FLR CA 433 that the significant harm that I should have regard to must be sufficiently high to justify the momentous step of taking children away from their parents and the risk must be an unacceptable one.
50. I have also had regard to the decision in Re B-S (Children) 2013 EWCA Civ 1146 and the guidance from the President in relation to the need for "proper evidence" to be before the court. In that judgment Sir James Munby, President of the Family Division, at paragraph 22 made reference to the earlier Supreme Court decision of Re B and said that:

'... 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 the plan for adoption, placement orders and adoption orders "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 best interests and they are "the most extreme option", a last resort when all else fails to be made only in exceptional circumstances and where motivated by the over-riding requirements pertaining to the child's welfare, in short where nothing else will do.'

It is also plain from the more recent judgment in Re R (A Child) [2014] EWCA Civ 1625 that I must confine myself to consideration of the realistic options. In this case that is either long term fostering or adoption, neither parent being in a position to care for either child.

51. I keep all the above considerations firmly in mind.

Judicial Task

52. My judicial task is clear; firstly, I must establish that there is proper evidence from the local authority and the Children's Guardian which addresses all the realistically possible options for the children and the necessary analysis. In my judgment that evidence is before the court and it arrived before the court by a combination of written, oral and expert evidence, including of course written evidence from the parents themselves. However
53. Having reviewed all the written and oral evidence in the case it is my task to ensure that this judgment grapples with the relevant factors and contains adequate reasons. I have clearly in mind that my task is to evaluate all the realistically competing options and undertake a global holistic and multi-faceted evaluation of each child's welfare which considers the negatives and the positives of such action.
54. My task is made easier in this case by the courageous position of the parents and their child-centred and dignified approach, but I hope I have been no less rigorous in my approach in relation to the matters upon which I should satisfy myself.

Findings and Conclusion

55. I turn again briefly to the amended threshold. It is a sad and troubling document which prays in aid the father's long-standing drug use and risk of neglect to the children as he is the main carer. The parents have a dysfunctional relationship. Sadly, the mother also had severe learning difficulties. There has been a failure to engage effectively with professionals to safeguard these children. The children, although subject to child protection plans under the category of neglect, were removed by the parents to an unknown location on 15 August following a visit from social workers and the police had to be involved to locate the family. There is, in my judgment, cogent and detailed evidence of neglect of these children. This is a very sad case. I accept unconditionally that these parents love their children and are devastated about the prospect of losing them.
56. Mother's position is quite straightforward in that the Official Solicitor has recognised on her behalf that the only orders which will safeguard and promote the children's welfare interests are care and placement orders.
57. In relation to both parents every realistic avenue has been explored in terms of alternative carers and the expert reports have been obtained in a timely fashion in these proceedings to establish whether there is a prospect of rehabilitation.
58. It is of course to the father's credit that he wishes to deal with his substance abuse. I fear it will be a long road and the evidence is clear that he must first address those issues before moving on to dealing with his complex psychological difficulties. This, taken together, could take a minimum of three years and the children cannot be expected to wait. I hope that the father however persists with this work for his own sake as this represents a powerful opportunity for him for rehabilitation in terms of his drug use and psychological needs.
59. My first task is to make a care order and in doing so I have applied the provisions of Section 1(3) of the Children Act 1989. Of particular relevance, given the circumstances in this case, are the children's physical, emotional and educational needs, the likely effect on them of any change in their circumstances, the harm that they have suffered or are at risk of suffering and the capacity of each of their parents to meet their needs. It is, of course, apparent from the evidence in this very sad case that the needs of the children cannot be met by their parents because of their own difficulties. There are no alternative carers and adoption for them represents the very best option. I approve the care plan for adoption.
60. There has been a dispute in this case as to the nature of post-order contact set out in the care plan. I am entirely persuaded in this case by the Guardian that the correct course will be for contact to be reduced to fortnightly for an hour to continue until four weeks before any matching panel for adoption. The father, in an emotional plea, asked for this contact to be for two hours. However, with the making of a care order with a plan for adoption the process of change for these children will have already begun and it is right, in my judgment, in order to help them to adjust to seeing less of their parents that an hour is an appropriate time.
61. Equally, the father asked for photographs every six months so that he and the mother could see the children growing up. It has been rightly submitted to me that if I imposed a condition of this sort it may deter an otherwise exemplary adopter and it is of course a matter I would leave to the adopters in any event as to whether as a process of indirect contact they will be willing to provide a photograph of the children say once a year. Of course this carries with it a potential risk of identification, but it is, in my judgment, a matter for them.
62. Having made a care order and approved the care plan I go on to consider the placement application. The Guardian's helpful analysis addresses the welfare checklist under the 2002 Adoption and Children Act. Central to the consideration of that checklist (and I paraphrase this for the sake of brevity in this judgment) is the loss of natural family and the effect that that will have on the children throughout their life. By adoption these children will lose not only a relationship with their parents and these of course are material losses of relationship for any children, but that has to be balanced against the need for stability for these children throughout their childhood, the risk of harm already having been identified and for them to be brought up by their parents will expose them to an unacceptable level of risk of harm.
63. I cannot make a placement order without parental consent. The parents do not consent and of course there is no reason why they should. They love these children and in an ideal world would want to care for them throughout their childhood. It is important that the children are brought up in the knowledge that their parents love them and wanted them, whatever their identified shortcomings. I have read the statements of facts and I am satisfied that the parents consent should be dispensed with on the grounds of the welfare needs of the children. I therefore make care and placement orders in relation to each child. The agreed threshold findings should be annexed to the final orders please.
64. That concludes the judgment.