England and Wales Family Court Decisions (other Judges)

 

 

Case No: LS14C00246

IN THE FAMILY COURT SITTING IN LEEDS

IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

Date:  27.2.15

 

Before :

 

HHJ Lynch

 

 

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Between :

 

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Sara Anning for the Applicant

The mother appeared in person

The father appeared in person

Katherine Stephenson for the Child

 

Hearing dates: 26 – 27 February 2015

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APPROVED JUDGMENT

 

 

 

 

 

Introduction and background

1.      In these proceedings I am concerned for a child who was born on 20 July 2014 and so is seven months old.  She is the child of the mother and the father and they both have parental responsibility for her. The child has never been named by her parents so the local authority have had to register her birth just with her surname; for the purposes of this judgment I will call her ‘the child’, not wishing to use her surname or its initial to avoid any possibility of identification.  The child's heritage is black, her mother being of Black Caribbean or Black African heritage (I have seen both referred to in the papers) and the father is of Black African heritage.  The child has two older half siblings, a sister on her mother’s side and a brother on her father’s.

2.      The child’s older half sister, J, the mother's elder daughter, is now aged twelve.  J was removed from the care of her mother and stepfather after disclosing her stepfather had indecently assaulted her. She now lives with her father. What is key from those proceedings is that findings were made that J had suffered significant physical and emotional harm due to sexual assaults perpetrated by her stepfather and her mother’s failure to protect her.  The parents seem to have taken a similar approach to the proceedings regarding J as they have to proceedings regarding this child, failing to engage fully including not attending the hearing when the findings were made, despite immense efforts being made by the court to engage them. The mother was of course a party to those proceedings; the father was invited to intervene but never did so.  It is my understanding that the father has been arrested and charged in relation to sexual abuse of his stepdaughter but he continues to deny the offences. I am told by the local authority the criminal case was listed in Leeds Crown Court recently and the father attended that hearing. I would anticipate given the nature of the charge and the current listing situation those will be protracted proceedings.

3.      The child was born prematurely only a matter of weeks after the final hearing regarding J. Given the findings made in respect of her older half sister and the fact that the parents had failed to engage with the pre-birth assessment, care proceedings were issued on 22 July, just two days after her birth. At the first hearing the following day, before the judge who had had conduct of J’s case throughout, an interim care order was made and has remained in place ever since. The child has been in foster care since the second hearing on 28 July. The parents have had contact with her each week, the mother four times a week and the father joining at least one of those sessions each week depending on his work commitments.

4.      The parents were initially represented in these court proceedings, the mother I think changing solicitors once. However in the latter part of the proceedings they have represented themselves and have done so very ably in this hearing, the parents conferring together and then the mother asking questions of witnesses. I should say the parents have also clearly researched the law in this area and have properly drawn my attention to very relevant case law.

5.      At the very beginning of these proceedings the mother filed a statement acknowledging she could not put her head in the sand and needed to engage with the court process. She said that she realised she could not remain in a relationship with her husband due to the findings made against him and she said she was prepared to separate from him and put her daughter's needs above her own. She said her husband accepted that and indeed he confirmed that in his own first statement. Prior to the hearing on 28 July the mother had issued an application for a residential assessment of herself as a sole carer. That was opposed by the local authority and guardian and was not ultimately pursued by the mother. She has in fact remained in a relationship with the father throughout these proceedings.

6.      The local authority's position at the early stage was it wished to have two initial assessment sessions and see if the parents had made sufficient change such that a full and comprehensive assessment would be productive. The first session with the mother was a failure, the mother questioning the social worker's authority to carry out the assessment. The social worker attempted to address this in writing with the mother after that session so the second session could go ahead. The mother was unhappy with the information provided and so was unwilling to engage in the assessment and so there has been no local authority assessment of the parents.

7.      At the case management hearing on 11 September the parents stated they did not accept the jurisdiction of the court in this case and their view was any order would have no effect. They were not willing to be assessed and objected to the child being vaccinated. Ultimately at a hearing on 17 October orders were made for certain recommended tests and immunisations. The parents have on occasions made applications for the previous judge, who had also dealt with the proceedings regarding J, to recuse herself from hearing the case; those applications were rightly refused. The case was however ultimately transferred to me to get the earliest possible final hearing, this hearing having been my only involvement in the case.

8.      The parents as I have said have not been assessed in these proceedings as they did not wish to work with the local authority, seeming not to recognise it as having authority to do an assessment. The guardian took the decision that one possible way to move matters forward was for there to be an independent social work assessment. The parents when represented had been encouraged to make such an application but as they did not the guardian made an application on 28 October. The judge made an order on 10 November that there should be an independent social work assessment of the parents and also directed that further enquiries should be made as to any possible family members with whom the child might be placed.

9.      The parents maybe unsurprisingly did not engage with the independent social work assessment. The independent social worker wrote to the parents offering an appointment and got a phone message back from the mother saying that she and her husband were not interested any in any assessment and that the person who needed assessing was the judge. She said that the findings made by the judge in the previous proceedings were false and was very clear that the social worker should not visit them. As result of this I have no assessment of the parents to take into account when reaching my decision, including any understanding of the risk of sexual harm the father poses or the mother’s ability to protect.

10.  On 2 December the previous judge of her own motion sent a notice to the parents, again urging them to seek legal representation, but to no avail. It was after that that the mother issued proceedings against that judge in the High Court, and I believe also against individuals within the local authority.

11.  The local authority's plan has become one of adoption and on 22 January it issued an application for a placement order. I have had to consider that application alongside the original care application in this hearing.

12.  There have been no applications by the parents for assessment of other family members.  The mother’s parents were proposed but the local authority objected, given that they had been assessed negatively in the proceedings regarding J, having had her placed with them by the local authority but allowed her to return to the care of the parents. The maternal grandparents have been written to the regarding the authority's decision and have not sought to oppose that. I am told the previous guardian spoke with the maternal grandmother who confirmed she did not wish to be assessed in respect of caring for her granddaughter. The mother identified a friend who might be a potential carer but that woman could not be assessed because, although she and her husband were content to be assessed, other members of her household were not. The local authority was directed by the previous judge to make its own enquiries of the maternal family as to any potential options for care. The local authority made strenuous attempts to locate and contact the mother's three siblings, instructing an agent to trace them, but only one has responded to date and that woman explained she was not in a position to care for the child. Finally I should say J’s father was approached but did not wish to be assessed.

13.  The only other relevant matter to raise at this point is that an application was made by the local authority in recent weeks for the child to be tested for HIV. This request emanated from the hospital, specifically the consultant community paediatrician who acts as Medical Advisor to the Adoption Panel. I shall return to this application later in this judgment.

The Issues and the Evidence

14.  In preparing for this hearing I have read the bundle of papers provided to me in this matter, although I have only read key parts of the previous case regarding J given that I am bound by the findings made in those proceedings.  The parents brought final statements to court which I have considered and submitted written submissions on the law around non-consensual adoption, the local authority provided a copy of the BAAF Guidelines for the testing of looked after children who are at risk of a blood-borne infection, and the guardian filed a position statement dealing with the question of HIV testing.  I have heard evidence in court from the consultant community paediatrician; the social worker; and the guardian.  The parents declined to give evidence during the hearing. The local authority wished to cross-examine them and invited me to compel the parents to give evidence. I did so direct, warning them of the consequences, but each of the parents refused to give evidence. I have therefore had to look at their written evidence in the light of that refusal.

THE LOCAL AUTHORITY’S CASE AND THE GUARDIAN’S

15.  The local authority is supported in its applications by the guardian. It relies on the evidence of the child's social worker, who is also the social worker for J. The social worker in her written statements outlined the efforts made to engage the parents and to look at family members. She was clear in her first statement that the local authority wanted to complete a parenting and risk assessment of the parents but could not do so without their cooperation. She confirmed in her final statement that the parents had still not engaged, nor had they engaged with the independent social work assessment (which I note was sought from an experienced out of area worker to avoid any possible perception of bias). The social worker was of the view that the parents were unable to compromise their strongly held beliefs in order to have the opportunity of demonstrating their capacity to care for the child.

16.  Given the findings made, the local authority's case is clear, that if the child was placed in the care of her parents she would be at risk of significant sexual and emotional harm. With there having been no assessment by the local authority or the independent social worker of the risks the parents are deemed to present as result of the findings, the local authority could not endorse a placement with them.

17.  The social worker in her final statement looked at the positives in the scenario of the child growing up in the care of her parents but felt these were outweighed by the risk of harm due to those findings. She said there was no support the local authority could offer to diminish those risks short of oversight twenty four hours of each and every day of the week. She considered the possibility of just the mother caring, as she felt the mother would be able to meet the child's basic physical and emotional needs, but the fact that she would not accept the findings in relation to her husband in the previous proceedings and the findings that she had not protected J from significant harm meant she would not be able to protect this child.

18.  Given the absence of any possible members of the extended family as carers for the child, the social worker concluded that adoption was the best outcome for the child. She acknowledged this was a draconian step which would sever the child's ties with her birth family forever but was of the view it was necessary to provide for the child's future care and long term emotional security. The only chance that her of permanence, and of the emotional security and stability which came from that, was by way of adoption. Long-term fostering would give the possibility of maintaining a relationship with her parents and the potential of developing a relationship with her half siblings but fostering does not provide the same level of permanence for children as adoption. The local authority also argues that the parents’ attitude to state intervention and the legality of court orders means they would not acknowledge the validity of a foster placement.

19.  The local authority's plan is that the child would remain in her current foster placement whilst the local authority looks for an adoptive placement. She would have gradually reducing contact with her parents whereby it will go down in stages to monthly contact after about six weeks and thereafter remain monthly until a placement is identified. Annual indirect contact is proposed with the parents by way of the letterbox system and also at least indirect contact with her elder half sister.

20.  The children's guardian has changed during these proceedings due to the previous guardian leaving CAFCASS. I have considered written reports from both of the guardians. The parents did not engage with either guardian, declining to meet them other than the mother meeting the first guardian briefly at one of the July hearings. This seems to be due to the parents not accepting the guardian's authority any more than they do the local authority’s or the court.

21.  The current guardian addresses the local authority's plans in her report of just a week ago. Whilst clearly acknowledging the positives in terms of the practical care the mother gives the child in contact, her concerns inevitably stemmed from the previous findings of harm suffered by J. She notes the parents’ view that there are no concerns before the court which have any substance or require assessment, a significant concern to the guardian. She comments that the mother has chosen to believe the account of the father over that of her eldest daughter and to continue her relationship with him despite the emotionally harmful impact this would have upon J. In the guardian's view, in light of those factors, the child would be placed at risk of sexual, physical and emotional harm in the care of either parent.

22.  The guardian acknowledged the lack of any realistic alternative for the child other than adoption, in the absence of any way she could be safely placed with her parents and in the absence of any other family members to care. She agreed with the local authority's plans to reduce contact to monthly prior to placement and then yearly letterbox contact.

THE PARENTS’ CASE

23.  Turning to the parents case, I should say at the outset it is very clear to me from the documentation they have filed that they do not accept the authority of this court to make decisions regarding their daughter. The father's first statement from last July, prepared when he was represented by solicitors, exhibit a document setting out his principles and beliefs, relying on for example ‘Canons from the Canonum de Ius Positivum’. In the final documentation filed by the parents on 23 February they have provided a number of documents written in a quasi-legal fashion and which are not always easy to follow. It is maybe simplest to give a sense of this by quoting from the front page these words : “This skeleton argument is valid assertion of divine, inalienable and natural rights, and all right here asserted and reserved are subject to accepted law through justice as preserved by the Holy Bible, Universal Declaration of Human Rights, European Convention on Human Rights, Human Rights Act 1988, Bill of Rights, Lex Mercatoria, Treaty of International Law, Apostolic Letters issued motu proprio by the Pontiff Francis II”. I confess I have found it hard to make sense of their view of authority, their philosophical stance.

24.  The parents have also, as I understand their documentation, placed their child within family trust  - as they put it, “we have settled her entire Legal Estate into a Private Trust”. As I understand it they take the view that disclosing information pertaining to the existence of the child would be a breach of that private trust, which to them includes the registration of their child's birth.

25.  I am not going to address these issues in any detail but I am clear that this court operates within the legal structure of this country, is a lawful body, and has power to make decisions regarding this child. I do not accept that purporting to place her within a family trust precludes this court from making orders in respect of her.

26.  The issue of registration of the child's birth was dealt with in full at a hearing on 30 September when the parents were still legally represented. I have looked at the order made on that date which has full recitals as to the relevant law being applied. The court was clear that the local authority shared parental responsibility for the child and could exercise that parental responsibility including registration of the child's birth. The court noted the registration of the child's birth was a legal requirement and that the local authority intended to do this no sooner than 17 October. The order provided that the parents could apply to prevent it prior to 15 October. The court acknowledged that the parents did not accept the local authority could take this step and all their objections are fully recorded in the court order so I can be satisfied they were considered by the judge on that occasion. It was also recorded that the local authority would not name the child whilst these proceedings were ongoing.  In the event, the parents dismissed their legal representatives just prior to the hearing on 17 October and further chose not to attend the hearing. They issued no application to prevent registration and the local authority therefore went ahead and registered the child's birth, as agreed giving the child no name other than the family surname.  I appreciate the parents do not accept the legality of this but I am quite satisfied it was done in accordance with law of this jurisdiction and that the local authority were right to do so, given the legal requirement and given that the authority shares parental responsibility.

27.  Going back to the statements filed by the parents in these proceedings, it is clear neither of them accept the findings made in respect of their treatment of J. They say that there is no valid course of action to deprive them of their right to a private family life. They claim the local authority as a corporation cannot have parental responsibility for the child but say they as parents have a natural God-given right that is irrevocable. They are clear the local authority has taken their child for the purpose of making a profit by way of unlawful adoption.

28.  In respect of the findings made by the previous judge, they say that these are deemed void/null as there exists proof of fraud and violation of the Human Rights Act and the local authority has failed to provide valid and substantial evidence to prove that J needed protection from sexual abuse. They are of the view the previous judge was biased against them. Likewise they say there is no evidence for a finding of failure to protect as that is not an indictable crime. They say no one should be held guilty of any ‘penal’ offence unless there has been a public trial, nor should anyone be held guilty of any such offence if it did not constitute an offence under national or international law at the time when it was committed. The mother says she has been deprived of her Article 6 rights to a fair and just trial.

29.  The father says that the local authority is seeking to rely upon unproven allegations of which he has not been convicted and says the matter should be looked at by the Crown Court before any long-term plans are made for adoption. He points out that being charged by the police is not a final decision on a matter which has to be dealt with in a proper criminal court.  He is clearly of the view that not having been convicted means he should still be presumed to be innocent, despite the findings made against him within the Family Court.

30.  The mother concludes in her final document : “Failure of the judge to consider that the Applicant has proven NO valid cause of action against 1^st Respondent and the Applicant holds NO LEGAL TITLE and that 1^st Respondent gives NO CONSENT to adoption will result in a clear breach of COMMON LAW, CONVENTION RIGHTS, FRAUD ACT, COURT RULES and all necessary laws that prohibit forced adoption and the judge will unfortunately be held personally liable for abuse of public office and the said breaches of any court order authorizing the abduction of 1^st Respondent progeny.” [E183]  She therefore requires that the child should be immediately returned to the care of both parents or alternatively the case should be transferred to a High Court judge to determine the case.

31.  In respect of the report of the independent social worker, they say it carries no weight and is biased and prejudiced. They point out that they deemed further assessment unnecessary and had refused it at the hearing on 10 November. They say to agree to be assessed would be incriminating as it would result in acceptance of the unlawful/illegal findings by the first judge.

32.  I would therefore summarise the position taken by the parents as twofold. First, they do not accept the authority of this court or any body involved in these court proceedings to act in relation to their child. Second, they do not accept that this court should rely on the findings of the first judge made in respect of their treatment of J and so say that the child I am concerned with would not be at risk of harm in their care.

Threshold

33.  The parents do not accept that the threshold is met for the making of a care order. The threshold test is contained in section 31 of the Children Act 1989 and says that a court may only make a care order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm, and that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

34.  The local authority relies in part on the findings made by the previous judge in respect of J on 3 March 2014. That findings document runs to four pages and I am not going to set it out in its entirety here.  The judge found that J had suffered significant physical and emotional harm by way of sexual assaults which had occurred on more than one occasion. The assaults involved the father touching her body in numerous places, both intimate and non-intimate. The mother had failed to protect J from the risk of further significant harm, and/or had failed to prioritise her needs thereby causing emotional harm, by refusing to separate from the father and indeed resuming care of the child along with the father when she was meant to be living with the paternal grandfather. The court found that J would be at risk of suffering further significant harm in her mother's care due to the parents’ ongoing relationship and the mother's history of refusing to engage with professionals in respect of child protection matters.

35.  I am bound by the findings made in the proceedings regarding J, which have never been appealed by the parents even though it is clear they do not accept them.  There is reference in the order of 30 September to the father intending to lodge an application for permission to appeal by no later than 14 October but he has never done so. My understanding from the parents is that they have not appeal to be ordered because the copy they had was not sealed and therefore they do not accept the order was founded. Looking back to that finding of fact hearing, the parents chose not to play any part in that hearing, to the extent of not coming to court, despite having attended contested hearings in relation to an emergency protection order and the interim care order. Their absence from court knowing of the hearing was their own choice. I have read the approved note of judgment from that hearing and it is evident that the judge went to great lengths to engage the parents, adjourning the case on the first day to try to get the parents to court. When the parents still did not attend the judge required the local authority to call all the relevant witnesses and the child's solicitor assisted the court in questioning those witnesses to address matters it might be anticipated the parents would raise. The judge also watched a DVD recording of the child's ABE interview.

36.  In light of the findings made in respect of J I am satisfied that the child would be at risk of sexual harm from the father, in the way that her sister suffered harm, were she to be placed in the care of either of the parents.

37.  It is clear that neither of the parents accept the risk of sexual harm from the father. Their relationship and their support of each other has been prioritised over the needs of the child. I am satisfied the mother given her expressed views would not be able to protect the child from the risk of sexual harm perpetrated by the father.

38.  The local authority also invite me to make further findings and add them to my decision regarding threshold, namely :

a.          The parents will act only in accordance with their own beliefs irrespective of objective and independent evidence that those beliefs and associated actions are likely to cause their child significant harm;

(a)  Refusal to name the child

(b)  Refusal of immunisation and Guthrie test

(c)  Refusal to engage in any assessment

(d) Refusal to engage consistently in the court proceedings

(e)  Refusal to accept the findings whilst also not seeking any appeal

b.      Neither of the parents will engage with any professional seeking to protect the child and will actively seek to undermine attempts to offer support and/or advice.

39.  It is clear to me that the parents will act only in accordance with their own beliefs, evidenced by the examples given by the local authority, but I am not sure this necessarily goes to significant harm.  Failing to engage in assessments or court proceedings is not what this case is about. I am personally also unconvinced that failing to name the child constitutes significant harm.

40.  The local authority submits that refusing immunisation or medical testing without good reason would cause significant harm. Given the weight of the evidence going to threshold in this case I do not feel this is an area I reasonably need to address for the purpose of reaching a decision in this case.

41.  The fact that the parents have failed to engage with the local authority and guardian to date is a given. The question for me here though in respect of threshold is whether I can anticipate they would do so in the future such that it would harm the child. This is only relevant if the child is in their care and if she were those particular professions I anticipate would not be involved. Services such as health visitors and in due course nursery or school would be involved but I do not think I can extrapolate from the parents’ approach to court proceedings that they would not engage with other agencies such that the child would come to harm. Such findings were not made in respect of the older sister other than a failure to engage with the local authority in respect of child protection. I therefore do not think this fact necessarily goes to threshold.

42.  Threshold is nonetheless amply crossed in these proceedings.  At the conclusion of this judgment I have set out in a separate section the threshold findings I make.

Decisions

TRANSFER

43.  At the outset of this hearing I dealt with two preliminary applications by the parents. The first decision I had to make is in relation to the request of the parents for this case to be transferred to the High Court. This is an application which they had already made earlier in these proceedings but I have considered it afresh today as the parents made a request within their final statements. I am entirely satisfied that this is a case which can appropriately be dealt with at circuit judge level within the Family Court.  There is nothing unusually complex about it and it meets none of the criteria of the transferred to the High Court. I therefore refused the application for transfer.

ADJOURNMENT TO AWAIT POSSIBLE CRIMINAL PROCEEDINGS

44.  I also considered the father's argument that this case should not proceed unless and until there has been an adjudication in respect of the allegations made by J in any Crown Court trial. I was conscious that I must have in mind the general principle that any delay in determining the question is likely to prejudice the welfare of the child in these proceedings. Within the Family Court the burden of proof is different to that within the criminal courts and it is the civil burden of proof I apply today. I am bound by the findings of the previous judge which were found in accordance with the civil burden of proof. There is no reason for me as a result to await the outcome of any possible criminal trial. I therefore refused this application by the father.

THE CHILD’S FUTURE

45.  I now turn to consider what orders if any are in the best interests of the child when looking at her long term future.  I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family.  The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare.  In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are “very extreme”, and should only be made when “necessary” for the protection of the child’s interests, “when nothing else will do”.  The court “must never lose sight of the fact that (the child’s) interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”. 

46.  It is not for the court to look for a better placement for a child; social engineering is not permitted.  In YC v United Kingdom [2012] 55 EHRR 967 it was said : “Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

47.  I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for this child, taking into account the assistance and support which the authorities or others would offer.

48.  In reaching my decision I have taken into account that the child’s welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and the child as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the child’s rights and be proportionate.

49.  A placement order is sought by the local authority in respect of the child.  The court cannot make a placement order unless the parent has consented or the court is satisfied that the parents’ consent should be dispensed with.  A court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” consent to be dispensed with. In that context I am conscious that “requires” means what is demanded rather than what is merely optional. 

50.  I have to ask myself a central question in this case, whether the child should be rehabilitated to the parents’ care (with or without statutory orders) or whether she should be adopted. Given the child's age I do not see long-term foster care as an option, and I have in mind the comments of Black J (as she then was) in Re V [2013] EWCA Civ 913, in particular paragraph 96, when one looks at what both types of placement would offer by way of security. With children as young as here I accept the social worker’s view that the child should not be placed in long-term foster care and that her need for a permanent secure home would best be met by an adoptive placement if she cannot return to the care of her parents. I do find that the parents’ attitude to state intervention means they would challenge the legality of any placement which would destabilise the child if she were in long-term foster care.

51.  When looking at the options being presented to me I have to balance the pros and cons of each. McFarlane LJ in Re G [2013] EWCA Civ 965 said “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.” In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002 and propose to consider the evidence in the light of those factors.

52.  Although the factors in the checklist come in no particular order, the first in each is the ascertainable wishes and feelings of the child concerned, considered in the light of her age and understanding. Obviously the child here is not of an age where she can express her wishes. I would accept though that I should work on the basis if she could they would be to be with her parents if she could at the same time be protected and remain free from harm throughout her childhood.

53.  Very importantly I have to take into account the child's particular physical, emotional and educational needs. This child has all the same needs any young baby has, to have her physical and emotional needs met, to be loved, and to be able to build up a secure attachment with a primary carer.  Importantly she also needs to be safe within a family setting.

54.  Very much linked to this, I have to consider any harm within the meaning of the Children Act 1989 which she has suffered or is at risk of suffering. In this child's case this is central to my thinking when looking at future plans for her. I have already found that she would be at risk of significant harm if returned to the care of either or both of her parents (see threshold section above and final section below setting out threshold as found). Given that neither parent accepts that risk of harm, against that backdrop have to consider if there is any support which family or professionals could offer to address that. I agree with the social worker that the only option would be 24/7 input from the local authority which is unrealistic. I am entirely satisfied these parents would not cooperate with professionals to address risks which they do not accept, particularly given the approach they have taken to date to the social worker and guardians. It is clear there has been no change throughout the lifetime of the proceedings in their attitude to professionals involved with their child. There is therefore nothing that can be done to reduce the risk the child faces.

55.  I accept that if I approve the plan of adoption there is the potential for the child suffering emotional harm by way of separation from her parents. Her mother in particular is a very familiar figure to her as a result of the regular contact sessions and that relationship will ultimately be lost to her, as well as the relationship with her father and the potential of a relationship with her older half sister and other members of the extended family. That is a real loss to a child and could have an impact on her identity in the future if not addressed by adoptive parents. That is a risk I take into account when considering the options for the child.

56.  I must also look at how capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs. The evidence from contact is that the mother could meet the child's basic care needs. She demonstrates a warm and loving relationship with her daughter in contact and I have no doubt this would continue if her daughter was returned to her care. The father too shows in contact that he could meet her basic care needs.  However the child's needs are much greater than this and in this particular case her need for a safe and secure home throughout her childhood is crucial. It is this need that neither parent can meet.

57.  I must consider whether potential adopters would be able to meet all of the child's needs. Obviously I can have no guarantee of this given that such people have not been identified but prospective adopters are assessed carefully and trained by adoption agencies. I am satisfied that such carers would be able to meet this child's needs including addressing with her the sensitive issue about why she is unable to grow up in the care of her parents.

58.  In looking at her age, sex, background and any characteristics of hers which the court considers relevant, clearly her ethnicity has to be a consideration. Living with her parents all of her identity and cultural needs would be met. I have to rely on the adoption agency looking for an appropriate match in terms of prospective adopters; that may not be a perfect match for the child but I am satisfied the adoption agency will have this issue at the forefront of its mind when looking for a suitable family.

59.  If I make an adoption order I do not underestimate the likely effect on the child throughout her life of having ceased to be a member of her original family and of becoming an adopted person. Adoption is more common now but of course there is the potential for the child to have issues around identity. One can only say potential adopters will need to be alert to this and open to discussing the child's background with her.

60.  I also acknowledge that making an adoption order will of course end the relationship which the child has with her parents and wider family, as well as the potential relationship she might have with her older half sister and brother.  Were she to stay with her parents clearly she would have a relationship with them and with their families. The mother does not currently have contact with her elder daughter and I suspect that would not be a meaningful relationship for the child if she stays in the care of her mother. As J is living with her father there is the possibility of some contact between the child and her sister in the future but at this point in time that could only be speculation. What I do know is that there would be a real loss of the relationship with her birth family. I have to offset that against the clear risk of harm if that relationship continues.

61.  Obviously moving the child from foster care to an adoptive home is yet another move for her, and I am conscious she has had to move foster placement once because her mother became aware of the address of the foster placement last year. Moves cannot be good for a child but this child has to have one more move, whether it is to her parents’ care or to prospective adopters.

62.  I look then at the two realistic options I have before me today. If the child is placed with her parents she would have the benefit of growing up in her birth family, with no issues around her identity and with people who have a strong sense of their relationship to her. However I am clear she would not be safe from harm. I have no sense whatsoever that the parents see any need to change or to address issues which have been evident before the court in these proceedings and the previous ones regarding her sister. 

63.  Alternatively I approve the local authority’s care plan of adoption. As the guardian says, that would offer her the opportunity to be part of an enduring family unit and live within a settled and stable environment where she is free from harm, without any ongoing statutory input. Whilst acknowledging that adoption means a severing of ties of relationships with birth family, I am satisfied that here the advantages of adoption outweigh the disadvantages and also outweigh the positives of placement within the birth family.

64.  In this case therefore, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of the child being returned safely to her parents’ care, and that her need for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority’s final care plan for the child is a proportionate interference in the child’s family life and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. Further, having concluded that the child’s welfare requires me to dispense with the parents’ consent to placing her for adoption, the word “require” here having the Strasbourg meaning of necessary, “the connotation of the imperative”, I make a placement order authorising the local authority to place the child for adoption.

HIV TESTING

65.  The last matter for me to address relates to the child being tested for HIV. Medical tests and related matters have been an issue before in this case. After an initial refusal, at a hearing on 17 October the court countenanced the child being immunised and having certain medical tests. The issue of testing has become relevant again because the local authority has issued an application for permission to have the child tested for HIV, as a result of advice from the paediatrician responsible for the child. The previous application was made by way of an application under the inherent jurisdiction but this application has been made to me at circuit judge level on Form C2, as is entirely appropriate. The President’s Direction : HIV Testing of Children [2003] 1 FLR 1299 is clear that such applications can be determined by a judge within the County Court, now the Family Court; an application should only go to the High Court if proceedings concerning the child are pending there or the application is made for an order under the inherent jurisdiction of the High Court.

66.  In the case of Re C (HIV test) [1999] 2 FLR 1004 it was held that the question whether a child should be tested was a matter relating to the welfare of the child, not the rights of the parents, and it was clearly not in the child's best interests for anyone to remain ignorant of child's state of health. The court held that taking a blood sample so that the test for HIV could be conducted provided a comparatively unintrusive way of determining the child's medical status, enabling all concerned with her future welfare to be better informed as to appropriate avenues of treatment in the event of illness.

67.  The local authority has made its application following advice from the child's paediatrician.  She explained that all mothers were tested at about twelve weeks of pregnancy whether or not they fell into a risk category. In fact she said because antibodies may not appear for three months it is possible for that test to be negative but for the mother to still to have HIV. Equally HIV could be acquired later in pregnancy. The parents quite rightly asked questions of her as to why she felt there were particular risks in this child's case. The paediatrician said that the father's heritage, being black African, was of relevance as British Afro/Caribbean communities have a higher incidence of HIV than the background population. She had seen a reference to the father being from Zambia, a country with an incredibly high HIV incidence rate. It was put to her that the father actually comes from the Democratic Republic of Congo the paediatrician said although rates would be lower there they were still much higher than the norm. The paediatrician also had reflected on the findings that had been made against the father although it was clear she had not been given all the details. What she knew was that there had been sexual abuse by the father of his stepdaughter and she phrased that in her e-mails as an 'inappropriate sexual relationship'. I can see that that phrase may imply penetrative sex but the paediatrician was clear that was not what she meant. Transmission was possible by sexual touching short of sexual intercourse if bodily fluids were exchanged. The mother had also breastfed the baby which would have increased the baby's risk of transmission if the mother was positive.

68.  The paediatrician was of the view the child needed to be tested due to some extent to a lack of health information about either parent. She had met the parents at the pre-adoption medical and was clear that, although the parents had answered questions, they had given very little information, for example declining to tell her which country the father came from. The paediatrician said it would have been good practice to test the child in this case and she was not sure why it had not been done.

69.  As to the child's future health the paediatrician strongly urged testing, noting that if she was found to have HIV this would need careful managing by a specialist team. The test would involve 2 ml of blood being taken from the baby either by Dr Gregory or an experienced clinic nurse. The paediatrician said blood samples were taken all the time from young babies with no long-term consequences. If the outcome of the first test was positive, more detailed blood tests would be taken and a plan put in place and medication including antibiotics given to protect from severe overwhelming infection. A definitive test would be done at 15 to 18 months and if those tests were positive appropriate management would be needed. The paediatrician said in an e-mail to the local authority : “If we do not test the baby and she is HIV positive, then she is at serious preventable risk of infection and life threatening illnesses. HIV infection is now felt to be a chronic condition management medication and it is certainly possible to have a long and healthy life in this country with the current medications and health care.” [A213]  The paediatrician accepted that the child currently presents as healthy but she said lots of children can be HIV-positive and appear healthy but it does not stay that way.

70.  The parents oppose HIV testing being carried out on the child. They say that the taking of a sample without consent constitutes an assault, which I accept it does at first blush which is why the consent of the local authority and more significantly the permission of the court is required. The parents do not recognise the local authority being able to share parental responsibility with them and therefore to consent to the test. They say that, as in their view they are the only people with parental responsibility (as they do not acknowledge the local authority shares parental responsibility by virtue of the interim care order), testing without such consent would be a breach of their Article 8 rights.

71.  The parents also allege the paediatrician works for the local authority and that the request for it to be done is for financial gain in support of an illegal adoption. They submit that the fact that the hospital  as opposed to the local authority did not make a request for the test shows the hospital knows the test is not required. There is no proven medical evidence to support the paediatrician's belief as to why testing might be required, for example the father confirms he is a Congolese rather than a Zambian national. They say such a test is against their Christian faith as it is a ritual and is a breach of their Article 9 right to freedom of thought, conscience and religion.

72.  The parents also say that the blood testing is unnecessary, adds nothing, is not in their daughter's best interests and has nothing to do with care proceedings.

73.  Looking at the parents’ arguments, whilst I acknowledge taking a blood sample involves breaking of the child's skin which would on the face of it being assault, it is one that can be authorised by this court if it is felt to be in the child's best interests. The parents may not accept this, but the local authority does share parental responsibility with them and the local authority is clear that it would be in the child's best interests to have the best possible picture of her medical health.

74.  I have considered very carefully the evidence of the paediatrician as to why she says the test would be in the child's best interests. I cannot agree with the parents that the blood testing is unnecessary and adds nothing. As was said in the case I have quoted above of Re C, the test provides a comparatively unintrusive way of determining the child's medical status, which means that anyone will be better informed as to appropriate avenues of treatment in the event of illness. I think there is sufficient reason to say that the temporary pain caused to the child from the taking of a sample would be outweighed by the advantages of knowing whether this child has HIV or not. If she does this is an eminently treatable condition but treatment is needed as early as possible.

75.  Having said that, the mother put to the paediatrician that it would have been wiser to ask the parents to share the medical information rather than going straight to testing the child. She said they had no notice that the application was to be made until they received it. The paediatrician's response was to say that the mother at the pre-adoption medical had been unwilling to give relevant information. The paediatrician was clear that if the mother would now have an HIV test that would definitively answer matters without the child needing to be tested.  The paediatrician was not opposed to the prospect of the mother being given time to comply with such a test before the child was tested and she said up to a month would be acceptable, although she was clear the opportunity could be given for sample to be taken from the mother the following week with the results due about a week after.

76.  I am satisfied that it is in the best interests of the child for there to be a definitive answer as to whether or not she has HIV. I do not think this test is any different to the other tests which have been permitted on this child. There is nothing more significant about the taking of a blood sample for HIV testing, indeed it is an entirely manageable condition if one knows a child has it. That knowledge though is needed as early as possible. I do therefore give permission for the child be tested for HIV. However the test should only be carried out if within three weeks of the date of this order the mother has not given to the Trust for whom the paediatrician works the blood sample for HIV testing and if the mother’s test results are negative.  If she does that it means the results will be known within a month, the window within which the paediatrician felt was reasonable.  Clearly if the mother's results were positive the child would need to be tested as well because of the very high chance of vertical transmission.

HIV TESTING

77.  Medical tests and related matters have been an issue before in this case. After an initial refusal, at a hearing on 17 October the court countenanced the child being immunised and having certain medical tests. The issue of testing has become relevant again because the local authority has issued an application for permission to have the child tested for HIV, as a result of advice from the paediatrician responsible for the child. The previous application was made by way of an application under the inherent jurisdiction but this application has been made to me at circuit judge level on Form C2, as is entirely appropriate. The President’s Direction : HIV Testing of Children [2003] 1 FLR 1299 is clear that such applications can be determined by a judge within the County Court, now the Family Court; an application should only go to the High Court if proceedings concerning the child are pending there or the application is made for an order under the inherent jurisdiction of the High Court.

78.  In the case of Re C (HIV test) [1999] 2 FLR 1004 it was held that the question whether a child should be tested was a matter relating to the welfare of the child, not the rights of the parents, and it was clearly not in the child's best interests for anyone to remain ignorant of child's state of health. The court held that the test provided a comparatively unintrusive way of determining the child's medical status, enabling all concerned with her future welfare to be better informed as to appropriate avenues of treatment in the event of illness.

79.  The local authority has made its application following advice from the child's paediatrician.  She explained that all mothers were tested at about twelve weeks of pregnancy whether or not they fell into a risk category. In fact she said because antibodies may not appear for three months it is possible for that test to be negative but for the mother to still to have HIV. Equally HIV could be acquired later in pregnancy. The parents quite rightly asked questions of her as to why she felt there were particular risks in this child's case. The paediatrician said that the father's heritage, being black African, was of relevance as British Afro/Caribbean communities have a higher incidence of HIV than the background population. She had seen a reference to the father being from Zambia, a country with an incredibly high HIV incidence rate. It was put to her that the father actually comes from the Democratic Republic of Congo the paediatrician said although rates would be lower there they were still much higher than the norm. The paediatrician also had reflected on the findings that had been made against the father although it was clear she had not been given all the details. What she knew was that there had been sexual abuse by the father of his stepdaughter and she phrased that in her e-mails as an 'inappropriate sexual relationship'. I can see that that phrase may imply penetrative sex but the paediatrician was clear that was not what she meant. Transmission was possible by sexual touching short of sexual intercourse if bodily fluids were exchanged. The mother had also breastfed the baby which would have increased the baby's risk of transmission if the mother was positive.

80.  The paediatrician was of the view the child needed to be tested due to some extent to a lack of health information about either parent. She had met the parents at the pre-adoption medical and was clear that, although the parents had answered questions, they had given very little information, for example declining to tell her which country the father came from. The paediatrician said it would have been good practice to test the child in this case and she was not sure why it had not been done.

81.  As to the child's future health the paediatrician strongly urged testing, noting that if she was found to have HIV this would need careful managing by a specialist team. The test would involve 2 ml of blood being taken from the baby either by Dr Gregory or an experienced clinic nurse. The paediatrician said blood samples were taken all the time from young babies with no long-term consequences. If the outcome of the first test was positive, more detailed blood tests would be taken and a plan put in place and medication including antibiotics given to protect from severe overwhelming infection. A definitive test would be done at 15 to 18 months and if those tests were positive appropriate management would be needed. The paediatrician said in an e-mail to the local authority : “If we do not test the baby and she is HIV positive, then she is at serious preventable risk of infection and life threatening illnesses. HIV infection is now felt to be a chronic condition management medication and it is certainly possible to have a long and healthy life in this country with the current medications and health care.” [A213]  The paediatrician accepted that the child currently presents as healthy but she said lots of children can be HIV-positive and appear healthy but it does not stay that way.

82.  The local authority and guardian also argued that if I approved the plan for adoption then there was another reason for me to approve testing. The point was made that this recommendation has been made by the paediatrician and would therefore have to be disclosed when looking for potential adopters. If the test had been recommended by an experienced consultant paediatrician and not carried out this could have a real impact on finding adopters for the child. However the local authority were confident even if the child had HIV if this were known adopters could still be found.

83.  The parents oppose HIV testing being carried out on the child. They dispute that there is any reason to think the child could have HIV, as the parents are quite confident neither of them has it. They say that the taking of a sample without consent constitutes an assault, which I accept it does at first blush which is why the consent of the local authority and more significantly the permission of the court is required. The parents do not recognise the local authority being able to share parental responsibility with them and therefore to consent to the test. They say that, as in their view they are the only people with parental responsibility (as they do not acknowledge the local authority shares parental responsibility by virtue of the interim care order), testing without such consent would be a breach of their Article 8 rights. As I understood the mother in her submissions at the end, she seemed to say that she would do what was needed to ensure there was no need to test the child, which I took to mean that she would herself be tested although there was not the opportunity for anyone to ask her questions about this in the witness box, as had been the understandable wish of Ms Anning.

84.  The parents also allege the paediatrician works for the local authority and that the request for it to be done is for financial gain in support of an illegal adoption. They submit that the fact that the hospital as opposed to the local authority did not make a request for the test shows the hospital knows the test is not required. There is no proven medical evidence to support the paediatrician's belief as to why testing might be required, for example the father confirms he is a Congolese rather than a Zambian national. They say such a test is against their Christian faith as it is a ritual and is a breach of their Article 9 right to freedom of thought, conscience and religion.

85.  The parents also say that the blood testing is unnecessary, adds nothing, is not in their daughter's best interests and has nothing to do with care proceedings.

86.  Looking at the parents’ arguments, whilst I acknowledge taking a blood sample involves breaking of the child's skin which would on the face of it being assault, it is one that can be authorised by this court if it is felt to be in the child's best interests. The parents may not accept this, but the local authority does share parental responsibility with them and the local authority is clear that it would be in the child's best interests to have the best possible picture of her medical health.

87.  I have considered very carefully the evidence of the paediatrician as to why she says the test would be in the child's best interests. I cannot agree with the parents that the blood testing is unnecessary and adds nothing. As was said in the case I have quoted above of Re C, the test provides a comparatively unintrusive way of determining the child's medical status, which means that anyone will be better informed as to appropriate avenues of treatment in the event of illness. I think there is sufficient reason to say that the temporary pain caused to the child from the taking of a sample would be outweighed by the advantages of knowing whether this child has HIV or not. If she does this is an eminently treatable condition but treatment is needed as early as possible.

88.  Having said that, the mother put to the paediatrician that it would have been wiser to ask the parents to share the medical information rather than going straight to testing the child. She said they had no notice that the application was to be made until they received it. The paediatrician's response was to say that the mother at the pre-adoption medical had been unwilling to give relevant information. The paediatrician was clear that if the mother would now have an HIV test that would definitively answer matters without the child needing to be tested.  The paediatrician was not opposed to the prospect of the mother being given time to comply with such a test before the child was tested and she said up to a month would be acceptable, although she was clear the opportunity could be given for sample to be taken from the mother the following week with the results due about a week after. Indeed, Ms Anning confirmed that an appointment could be set up next Thursday for the mother to attend although of course I do not know that time is convenient to the mother.

89.  I am satisfied that it is in the best interests of the child for there to be a definitive answer as to whether or not she has HIV. I do not think this test is any different to the other tests which have been permitted on this child. There is nothing more significant about the taking of a blood sample for HIV testing, indeed it is an entirely manageable condition if one knows a child has it. That knowledge though is needed as early as possible.

90.  For completeness, I should say that I also agree that the test is necessary because I have approved the plan for adoption of the child. I accept that for the child's records to be flagged saying the test is required but not done may well have a real impact on finding adopters for her. Given that I am satisfied that adoption is what is in her best interests, it has also to be in her best interests for the test to be carried out.

91.  I do therefore give permission for the child be tested for HIV. However the test should only be carried out if within three weeks of the date of this order the mother has not given to the Trust for whom the paediatrician works the blood sample for HIV testing and if the mother’s test results are negative.  If she does that it means the results will be known within a month, the window within which the paediatrician felt was reasonable.  Clearly if the mother's results were positive the child would still need to be tested as well because of the very high chance of vertical transmission.

Concluding matters

92.  There is one further direction I wish to make.  I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life.  This judgment, in setting out what I have read and heard in court, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing the child up.  I propose therefore to make a direction that this judgment must be released by the Local Authority to the child’s adopters so that it is available to her in future life. 

93.  Finally I also make an order for public funding assessment for the child’s legal costs in this matter.

 

SCHEDULE OF FACTS – THRESHOLD

The child is likely to suffer significant harm and the likelihood of harm is attributable to the care given to the child, or likely to be given to her if the order were not made, not being what it would be reasonable to expect a parent to give to her.  This is evidenced by the following facts :

1. In proceedings under matter number LJ13C00324 findings were made in respect of the parents regarding another child, J, as set out in the threshold document in those proceedings dated 3.3.14.  Those findings in summary were that J had suffered significant physical and emotional harm by way of sexual assaults which had occurred on more than one occasion. The assaults involved the father touching her body in numerous places, both intimate and non-intimate. The mother had failed to protect J from the risk of further significant harm, and/or had failed to prioritise her needs thereby causing emotional harm, by refusing to separate from the father and indeed resuming care of the child along with the father when she was meant to be living with the paternal grandfather. The court found that J would be at risk of suffering further significant harm in her mother's care due to the parents’ ongoing relationship and the mother's history of refusing to engage with professionals in respect of child protection matters.
2. By virtue of those findings, the father presents a risk of sexual harm to any child in his care.
3. Neither parent accepts that the father presents any risk to any child of sexual harm and therefore neither parent would act in any way to protect the child from that risk. The parents prioritise their relationship over the needs of the child.
4. Any child placed in the care of the parents would be at risk of suffering sexual harm.
5. The child is likely to suffer significant physical and emotional harm were she to be placed in the care of either or both of her parents. That harm would be caused by sexual assault perpetrated by the father and/or a failure of the parents to meet the emotional needs of the child consistently.