England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF H (A CHILD)

		The Quayside Newcastle upon Tyne NE1 3LA
		23rd January 2015

Her Honour Judge Hudson:

Introduction

1. I give this judgment in respect of the local authority's application for a placement order in respect of A, who is now almost eleven years old. A's mother is M, who is the first respondent. A's father is named as F. He does not have parental responsibility for A, has not played an active part in her life and has not participated in the three sets of legal proceedings concerning A. A's Children's Guardian is Barbara Hewitt, who also represented A in the second set of proceedings. A's solicitor, Mr Goodings, has represented A throughout the various court proceedings.
2. The local authority seeks a placement order in respect of A, with a view to her adoption by her long term foster carer, with whom A has lived since April 2012. The application is opposed by M, but supported by the Children's Guardian.
3. There was some initial delay in progressing the application, which was made on 19^th June 2014, as M's whereabouts were not known. On 22^nd September 2014 I timetabled the case to a contested hearing which was listed in November 2014. I later acceded to an application to re-timetable the case and re-list the hearing at the joint request of the parties, albeit with significant reservations about the impact of delay on A. The contested hearing took place on 16^th January 2015.
4. It was not possible to give judgment on that day because of other court commitments. I therefore agreed to give judgment today, which was expected to be the first opportunity which was convenient to M's counsel, Ms Callaghan, whose attendance I considered to be desirable. Unfortunately, in the event, Ms Callaghan has been unable to attend today's hearing. There has been no request that the hearing is delayed; it is, in my judgment, important for A and her mother that the outcome of this application is known.
5. In accordance with my case management directions, the case papers have included the relevant documentation from the earlier proceedings, together with the placement application itself, the statement of facts in support, the annex B report, a statement from the social worker (Patrick Hope) a statement from M and two reports from the Children's Guardian. During the course of the hearing I heard oral evidence from the local authority social worker and from the Children's Guardian, who were both cross examined on behalf of M.

The Background

6. A is the second of M's six children. None of them remain in her care. A's older brother, B, was born in 2002 and is now just thirteen. A has a younger brother, C, now aged eight. A's sisters are D (now six), E (aged five) and F (aged four).
7. There is a long history of social care involvement with M regarding her parenting dating back to 2003. In about 2005, M became involved in a relationship with P, who was considered to pose a significant risk to her and the children as a result of his violent behaviour and domestic abuse in the relationship between him and M. There were other wide-ranging shortcomings in the care of the children, whose needs were significantly neglected. P is recorded to be the father of the four youngest children.
8. In 2009 the eldest five children were made the subject of child protection procedures. MARAC procedures were invoked as a result of the risk that P was considered to pose. In early 2010 M and the children were relocated to the North East to refuge accommodation.
9. In March 2010, M agreed to her then five children being placed in foster care. Care proceedings were issued in March 2010 and were before the court until August 2011, when final orders were made in respect of those five children and the youngest child, F, who was born during the course of the proceedings.
10. The case papers reveal a wide range of assessments which were undertaken in the proceedings. As well as local authority social work assessments, the case papers included a report from an independent social worker. Paediatric and psychological assessments were also undertaken. A was the subject of a psychological assessment by Jessica Brown, completed on 24^th April 2011, to address a number of identified issues concerning A, including the most appropriate placement for her.
11. Jessica Brown's opinion was that A had an attachment disorder, emotional difficulties and exhibited challenging behaviour. Jessica Brown gave her opinion about the placement orders at paragraphs 5.5.7 to 5.5.9 in her report, at E138 of the care papers. She reported as follows:

My main area of concern in relation to pursuing an adoptive placement is the extent of the lack of selectivity demonstrated by A within her attachment relationships. At present, A's focus appears to be on ensuring her immediate needs are met, rather than on the differentiation between intimate and non-intimate relationships. Given that many adoptive parents are seeking to claim children into their own family, this may lead to a mis-match between A's needs and the adoptive parents' needs.

A lacks an understanding as to the reasons that have led to her being placed in foster care. She did not appear to recognise or accept the concerns in relation to her mother's parenting of her, which resulted in her being placed in foster care. I believe that the result of this is that A still feels a sense of loyalty towards her birth mother and that this may impact upon her ability to accept being claimed by an adoptive family.

In my opinion, a long term foster placement may be more appropriate to meet A's needs, therefore I would not recommend searching solely for an adoptive placement for A. However, there may be value in undertaking a dual search for adoptive parents and long term foster carers and then matching on the basis of which best meets A's needs.

12. The local authority's final care plans for B and A were for placement in long term foster care, placed separately, and for the youngest four children to be placed for adoption.
13. A five day final hearing took place before District Judge Jackson, during the course of which M sought the return of the children to her care. District Judge Jackson gave his judgment on 4^th August 2011. The District Judge records the written evidence of A's then social worker, Lesley Baldry, that:

A has a high degree of vulnerability; she needs a high level of consistency and security, together with further assessment for possible disorders.

14. The judgment went on to record A's progress in foster care. The District Judge concluded that A required a standard of parenting which is 'better than good' together with professional support to ensure her needs were met. The judge found that M's relationship with P continued and that she failed to recognise the significant shortcomings in her care of her children. He made wide-ranging findings about violence in the relationship between M and P and found that neither was reliable or honest in the evidence they gave.
15. The District Judge approved the local authority's care plans for the children. He made care orders in respect of each of the children and placement orders in respect of the youngest four. The care plan for A envisaged continuing direct contact between her and her mother. In the event, that contact came to an end in January 2013.
16. In April 2012 A had moved to the care of her long term foster carer, following the matching process. She had settled quickly in that placement, but the ongoing contact was considered to be damaging to her overall wellbeing and her emotional needs.
17. In March 2013 the local authority issued an application pursuant to section 34(4) Children Act 1989, seeking authority to refuse contact between A and her mother. By the time of the contested hearing in October 2013, M had issued an application seeking direct contact with B, over and above the reduced level of once per year proposed by the local authority. She also opposed the order sought by the local authority in respect of A.
18. Once again, the final hearing was fully contested. On 15^th October 2013 His Honour Judge Wood made an order pursuant to section 34(4) in respect of A and he approved the reduction in M's contact with B to once per year. The local authority's evidence in support of the application recorded the very positive progress that A had made in her placement and that long term foster care was no longer considered to be the appropriate legal framework for her placement. It was recorded that consideration was to be given to either special guardianship or adoption.
19. The statements also recorded the local authority's conclusion that contact between A and her mother was emotionally harmful to A. At C18, the social work statement recorded M's inappropriate behaviour in contact, covertly involving P, and the negative impact on A of the contact with her mother. M's statement recorded her intention that B and A should return to her care, although she acknowledged that it was then, as she described it, 'early days' and she needed so show she had changed over a longer period.
20. The Children's Guardian supported the making of the section 34(4) order in respect of A. Her report, dated 3^rd October 2013, recorded her view that:

A will continue to have complex educational and social needs as her years advance and that stabilising her routine and family life in her foster placement needs to remain a primary consideration.

21. In making the section 34(4) order His Honour Judge Wood approved the plan for M to participate in a farewell contact DVD, which was considered to be a safe, appropriate and emotionally supportive way of bringing contact to an end for A. M did not cooperate with the arrangements for this, as a result of which it was not done.
22. A legal planning meeting in July 2013 recommended an adoptive assessment should be undertaken. Patrick Hope (who was A's social worker from April 2013 until a matter of days before this hearing) said that this proposed assessment resulted from discussions with A's foster carer about the placement options for A and the decision of the foster carer and the local authority that the security of adoption would better meet A's needs, as well as according with A's expressed wishes.
23. The assessment of the foster carer as a prospective adopter reached a positive conclusion. On 12^th May 2014, the agency decision maker approved the plan of adoption. A is very clearly aware of the plan for her adoption. The local authority's evidence is that A has, to some extent, led this in articulating her wish to be adopted. Although she is a young girl, A does have a greater experience of adoption than most children, in circumstances in which, following the conclusion of the care proceedings, she was supported to understand a plan of adoption for her four younger siblings and their placement in 'forever families'.
24. A continues to have contact with B, which is a positive experience for them both. She also has some limited direct contact with members of the extended maternal family, approximately three times a year.

The Legal Framework

25. The judgments of the Supreme Court Judges in Re B (A Child) [2013] UKSC 33 stressed the significance of a plan for a child to be placed for adoption against the wishes of the birth family. The court emphasised that adoption is an extreme outcome of last resort. Such orders cannot be made unless both necessary and proportionate, bearing in mind the requirements of Article 8. Lady Hale described the test for severing the relationship between a parent and child as:

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.

The test is one of necessity, therefore.

26. The welfare of the child is paramount. The welfare evaluation is to be undertaken in the context of section one of the Adoption & Children Act 2002, so that the welfare of the child throughout his or her life is the court's paramount consideration. As Lord Neuberger said in Re B:

The interests of a child, self-evidently, require the relationship with a natural parent to be maintained, unless no other course is possible in the child's welfare interests.

27. The enhanced welfare checklist in section 1(4) of the 2002 Act includes the likely effect on a child, throughout his or her life, of ceasing to be a member of the birth family and becoming an adopted person. It also includes consideration of the relationships the child has with the birth family, the likelihood of those relationships continuing and the value to the child of such relationships being maintained, as well as, of course, taking account of the wishes and feelings of the child's relatives.
28. In accordance with Re G (A Child) [2013] EWCA Civ 965 and the authorities that followed, the court is clearly now required to undertake a proper, thorough and holistic evaluation of the placement options, balancing the pros and cons to the extent that is appropriate in each case. In Re B-S (Children) [2013] EWCA Civ 1146 the President again stressed the degree of necessity before a plan of adoption is approved. He said that family ties may only be severed in exceptional circumstances.

The Welfare Analysis

29. A's welfare throughout her life is my paramount consideration. I have had regard to the full welfare checklist in section 1(4) of the 2002 Act and consider the following matters to be of particular significance in respect of A. A is now nearly eleven years old; she was just six when she and her siblings were removed from her mother's care. She lived with three different foster carers, before she moved to her current foster placement in April 2012. She has been living in that placement for approaching three years.
30. A is part of a large sibling group of six. The youngest, F, was born after the children were accommodated, but A and the other children lived together at home until March 2010. A, therefore, has a good knowledge of her birth family. After their accommodation, A continued to live with B until January 2011. A and her siblings were exposed to neglectful parenting and instability in their mother's care. They were also exposed to the violent and abusive relationship between her and P.
31. At the time of the accommodation of the children, A presented as the child with the most significant needs, who had been particularly badly affected by her experience in her mother's care. Despite the progress that A made in local authority foster care, at the time of the final hearing of the care proceedings in August 2011, A was still described as the most concerning child in the family with a high level of vulnerability. She was assessed as needing a particularly good standard of care and security, to achieve her potential. The plan of long term foster care reflected the evidence which indicated, at that time, that A's assessed difficulty in attaching, combined with the usual needs of those seeking to adopt children, would be unlikely to provide a successful placement.
32. A's relationship with M continued until January 2013 through direct contact, at which time that direct contact was brought to an end because of the detrimental impact of it on A. There has been no direct contact for two years. M did not cooperate with the recommended goodbye contact DVD, which was considered to be the most beneficial way for direct contact to be brought to a conclusion.
33. A has maintained a relationship with B, which is positive for them both. She also has continuing relationships, through limited direct contact, with other members of her extended maternal family. A is described as young for her age. She requires additional support in many areas of her life. I accept the evidence I heard from both the social worker and the Children's Guardian that she is a child in respect of whom ongoing support will be required beyond her minority.
34. In addition to the significant emotional harm suffered by A as a result of the wide ranging shortcomings in the care she received, A has also experienced the significant loss of her four younger siblings from her life. She has been helped to understand that they have been provided with permanency through adoption, with placements in 'forever families'.
35. It is not in question that A says she wants to be adopted. She has been saying this for at least eighteen months and, I am told, is frustrated at the delays in the court's decision-making process. She is said to be 'desperate' to be adopted. A is not yet eleven, and young for her age at that. I have had regard to her wishes and feelings in the context of her age and understanding. I am told, and I accept, that she has been provided with an age appropriate understanding of adoption and she is very clear that this is what she wants. On the evidence, she understands that it is adoption that has provided her younger siblings with their permanent homes.
36. At her age, A cannot begin to have a complete understanding of the ramifications of adoption - in terms of the changes to her relationships with her birth family and the long term impact of that throughout her life. Nor can A have any real understanding of the differences between adoption and special guardianship, the two forms of permanency I am asked to consider.
37. The evidence of the local authority and the Children's Guardian is that A's behaviour and progress would be likely to regress if adoption does not proceed. A has made very considerable progress since she moved to her long term placement in April 2012. She has made attachments that were considered unlikely at the time of the care proceedings. She has made this progress subject to a care order, albeit for the last eighteen months her stated wish to be adopted has, at the very least, been under consideration.
38. A's direct contact with her mother ended in January 2013. The cessation of contact received court approval in the making of an order pursuant to section 34(4) of the 1989 Act in October 2013. M contested that order, as she had the final care orders, and her statement revealed her intention and belief and A and B would return to her care in the future.
39. M is clearly opposed to the plan of adoption. She considers that A's future is appropriately secured at this stage by the making of a special guardianship order together, if it is A's wish, with an order permitting her name to be changed to that of her foster carer.
40. The making of an adoption order, in due course, would alter A's legal relationships with her birth family so that she would cease to be a member of her birth family. That would meet her current wishes; it also, of course, has lifelong consequences for any child.

The Placement Options

41. The realistic placement options in this case are either special guardianship or adoption. Of course, A could continue to be a 'Looked After' child, subject to a care order, but M does not argue this as an option for consideration. Her case focused on the option of special guardianship and her argument that placement for adoption could not be said to be necessary, nor could it be said that nothing else will do.
42. These two options are considered by the local authority and Children's Guardian in their respective reports and the oral evidence. A special guardianship order would achieve permanence for A in her placement with her long term foster carer, so that she would cease to be a 'Looked After' child (with all the ramifications that that brings with it). Parental responsibility would be granted to her foster carer so that it could be exercised to the exclusion of M, were that required. M would continue to be a member of A's birth family, so that those legal relationships would continue (although A's relationships with her younger siblings have, of course, already been terminated by their adoption). At eighteen, A would be entitled to support from the local authority through the 'leaving care' provisions. As the social worker said in his evidence, he would expect the kind of support that is provided through this framework to be provided by her carers in any event. An order could be made pursuant to section 14B(2)(a) of the 1989 Act, permitting a change in A's surname.
43. A special guardianship order is not the order that A and her carer both seek. It does not have the permanency of adoption and it lasts only during a child's minority. There remains the potential for further court applications by M. M would retain parental responsibility, albeit the exercise of that parental responsibility would be circumscribed by section 14C.
44. A placement order, paving the way for an adoption application, would meet A's wishes and those of her carer. Adoption provides the greatest legal security as A would become part of her foster carer's family. The reason that adoption was not supported as a care plan at the time of the care proceedings was because of the view, at that time, that A would not form the necessary attachments and that the prospective adopters needs may run counter to A's.
45. The disadvantages of adoption are well recognised. Ending a child's relationship with the birth family has lifelong and potentially negative implications. A child can experience loss and confusion about the circumstances which resulted in their removal from their birth family. Ms Callaghan said in submissions that adoption is not a panacea and the risk of breakdown should not be discounted.

My Welfare and Proportionality Evaluation

46. On all the evidence, A's welfare is best met by her continuing placement with her foster carer. The foster carer has demonstrated how well able she is to meet A's care needs in every respect. A has settled extremely well, is flourishing and making progress in all areas of her development. She remains a damaged little girl as a result of her early life experiences. A has now demonstrated a capacity to attach and form relationships, which was previously in doubt. It is vital that her progress is maintained and her potential maximised for the future.
47. Happily, the risk of this placement break down is, in my judgment, low - whether as an adoptive placement or otherwise. I am satisfied that A's foster carer is committed to her. The foster carer's wish to adopt comes from her commitment to A. I have concluded that A is likely to receive continuing support from her foster carer in the long term, whatever the legal framework within which that placement continues.
48. M has not accepted the planning for A or for her siblings. There were contested care proceedings, followed by a contested section 34(4) hearing in October 2013. By this time there had been no contact for nine months, because of the adverse impact on A and the professional consensus that further contact would be damaging to A. M was then clear in her plan for B and A to return to her care.
49. I have taken account of the circumstances in which, despite her challenge to the orders when sought, M has not herself initiated applications. Any legal framework short of adoption, however, carries with it the real risk, in my judgment, that M would seek to involve herself in A's life through further court applications.
50. In reaching this conclusion, I have also taken account of the potential of bolstering such a argument by the making of an order pursuant to section 91(14) of the 1989 Act. There remains the risk, in my judgment, of disruptive court applications which have the potential to involve both A and her carer.
51. A wants to be adopted. On the evidence, she understands that this will make her foster carer's family her own family. She has an understanding of adoption in the context of the adoption of her younger siblings, who each achieved permanence and their 'forever families' through adoption.
52. I have concluded that A's security and stability is likely to be compromised if the plan of adoption does not proceed. For A, with the adverse life experiences she has had and with the unhappy impact they have had upon her, the risk to her stability and her security is, in my judgment, a significant one.
53. I have concluded that A will require support from her 'family' beyond her minority. I expect her foster carer will provide that for her, in any event, whether she is adopted or not. There is, however, an important difference in my judgment for A in belonging to a family in these circumstances, not only legally, but also - and equally importantly for A - emotionally. That belonging, in my judgment, can only fully be achieved by the plan of adoption. A is a young girl for whom I consider that will be particularly important as she grows into adulthood.
54. I have approached this balancing exercise (as I always do) looking to the least intrusive order that can meet the child's welfare interests, both during childhood and life, where appropriate. Any plan of adoption is a last resort and is to be approved only where there is no alternative that can meet the child's welfare; where nothing else will do. I have taken account of the Article 8 rights of all those involved: A, her mother and her wider birth family. The plan of adoption in this case will not in fact involve A losing all of those relationships, despite the legal implications, as contact with B and - it is hoped - the wider maternal family would continue. The interference with the Article 8 rights is nonetheless of great significance; there can be no clearer case than in a plan of adoption.
55. Having approached this decision with these considerations at the forefront of my mind, I have weighed the placement options in the light of my welfare analysis of A and her needs and circumstances. I have concluded that only the plan of adoption can meet A's welfare interests throughout her childhood and throughout her life. Nothing else will do for A. This course is necessary and is a proportionate response to A's circumstances and the issues in the case. I am satisfied that the making of a placement order is the order that will meet her welfare interests at this stage, allowing the plan of adoption to proceed.
56. M does not consent to the application. I can only make the order in these circumstances if I dispense with her consent, on the basis that A's welfare requires it, in accordance with section 52 of the 2002 Act. Having reached the conclusions I have set out in the course of my judgment in favour of the plan of adoption for A and the making of a placement order, and in circumstances in which M does not consent, I have further concluded that M's consent must be dispensed with, on the basis that A's welfare requires it.
57. I therefore dispense with M's consent to the making of a placement order. I make a placement order. I direct a transcript of my judgment which will be prepared at the shared expense of the three parties, with the request for the transcript to be made by the local authority. In accordance with the President's transparency guidance, I will direct that the transcript should be published in an anonymised form on BAILII.
End of judgment

We hereby certify that this judgment has been approved by Her Honour Judge Hudson.

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