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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> HL [Care and placement orders] [2015] EWFC B54 (20 May 2015)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B54.html
Cite as: [2015] EWFC B54
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IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that [irrespective of what is contained in the judgment] in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Case No: LS14C00516
IN THE FAMILY COURT
Sitting in Leeds
Date: 20/05/2015
Before :
HHJ TROY
- - - - - - - - - - - - - - - - - - - - -
Between :
A Local Authority
-and-
Mother
First Respondent
Father
Second Respondent
Child A
Child B
[by their Children’s Guardian]
Third & Fourth Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Withyman for the Applicant Local Authority
Mr Donnelly for the Mother
Mr Kershaw for the Father
Ms Kemp for the Children
Hearing dates: 18th to 20th May 2015
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
HHJ TROY:
The Children
1. The court is concerned in these proceedings with two children – Child A born on 25th June 2013 and Child B born on 10th December 2014.
2. Their parents are the First and Second Respondents to these proceedings [name “the Mother”] and [name “the Father”] and they share parental responsibility for the children.
3. The children are represented in these proceedings through their Children’s Guardian Nicola Stables.
The Applications
4. By applications issued on 26th November 2014 the Applicant Local Authority invited the court to make the children the subject of care orders. The care plans filed dated 10th April 2015 provide for the children to be placed with prospective adoptive carers and by further applications issued on 13th April 2015 the Applicant Local Authority invites the court to make the children the subject of placement orders.
5. The parents love the children very much.
6. They each accepted with sadness on the first day of this hearing that the court was unlikely to agree to return the children to their care based on the evidence filed and they did not seek to challenge that evidence or to give evidence themselves. However, they would not wish the children to think that their parents did not care for them or had abandoned them and they do not consent to the applications for placement orders in respect of them. The parents invite the court to adjourn these proceedings and to direct further assessment of a friend of the family [name “the Family Friend”] as a potential special guardian for the children.
7. On behalf of the children, their Children’s Guardian supports the applications for care and placement orders in respect of each of them.
Events prior to Issue of Proceedings
8. Social care services became involved with this family before Child A was born due to concerns about the conditions in the family home and the parents’ poor personal hygiene. On investigation, the Father was found to have a conviction for a serious physical assault upon his nephew who was then aged 5 or 6 years in 2002, he had been investigated for sexual abuse of the same child and had been the subject of a further investigation in February 2009 when indecent images of children were found on his computer. Assessments conducted at that time concluded that Child A was at risk of significant harm due to neglect and the Father was agreed to leave the family home whilst an assessment was undertaken of the risk he presented to Child A.
9. The risk assessment was not carried out promptly and the Father was permitted to return to the family home before the assessment had concluded subject to an agreement entered into with social care services which included a requirement that he would not spend time alone with Child A.
10. By 9th May 2014, social care services were again concerned about wholly inadequate hygiene standards in the family home and a failure to meet Child A’s health needs including a failure to seek treatment for severe nappy rash. He suffered gross neglect of his basic personal care needs, his diet was poor and there was a lack of stimulation for him in the home.
11. Efforts were made to support the parents in caring for Child A including the provision of a nursery placement for him five days each week to allow his parents time to address home conditions and to ensure that he had at least one meal each day and frequent, almost daily, visits by professionals to the family home. The Family Intervention Team worked with the parents in the family home seeking to improve home conditions and to establish child care routines. Sadly, the situation for Child A continued to deteriorate to the point where the home conditions were not safe for any child and these proceedings were issued.
Events Following The Issue of Proceedings
12. Child A was made the subject of an interim care order on 5th December 2014 and was placed in foster care. Proceedings were issued in respect of Child B on her birth and she was made the subject of an interim care order on 12th December 2014 when she joined Child A in foster care.
13. The court gave permission for the instruction of an expert psychologist Dr Naomi Murphy who prepared a report about both parents and their ability to care for the children.
14. The Applicant Local Authority made enquiries about family members able to offer to care for the children in the event that the psychological assessment led to the conclusion that they could not be returned to the care of their parents. The Maternal Grandmother [name] and the children’s Maternal Aunt [name] were approached but did not feel in a position to offer to care for the children and the children’s Paternal Aunt [name] withdrew from the assessment process but there were assessments of neighbours [names] and the neighbours’ adult daughter, the Family Friend, as potential carers for the children.
15. The assessments of the neighbours and the Family Friend were negative in that the Applicant Local Authority concluded that neither would be in a position to care for the children. The reports were disclosed to the individuals concerned, and the Family Friend attended at the issues resolution hearing in these proceedings on 30th April 2015. The Family Friend stated that she wished to apply to be considered as a carer for the children. I therefore informed her of the date fixed for the final hearing of the applications in respect of the children explaining that she needed to issue any application she wished to make in respect of the children as a matter of urgency and to attend the hearing, advising her to seek legal advice immediately if she wished to be represented in making any application.
16. The Family Friend has not made any application in respect of the children but she has prepared a statement filed by the Solicitors for the Mother in support of the Mother’s application for the court to direct an assessment of whether the children could be placed with the Family Friend. She did not attend court on the morning of the first day of the final hearing, Monday 18th May 2015, but it appeared that she may have been under the impression that she did not need to attend court that day as a result of a conversation with the Solicitor for the Mother and indeed, when contacted by telephone, she attended court on the afternoon of Monday 18th May 2015 promptly.
17. Both parents invite the court to adjourn these proceedings to permit the Family Friend to make an application for party status and to seek an independent assessment of her ability to care for the children and to apply for special guardianship orders in respect of each of them. With the agreement of all parties, I invited the Family Friend to sit in the courtroom to hear the evidence of the children’s social worker Ms Mooney about the assessment she had undertaken of the Family Friend before the Family Friend gave her oral evidence as a witness for the Mother in support of the application for an adjournment, so that the Family Friend was aware of all of the evidence presented to the court about her even though she was not party to the proceedings.
Section 31[2] Children Act 1989
18. In considering any application for a care order – the preliminary issue to be determined is whether the statutory threshold criteria set out in section 31[2] of the CA 1989 are met.
19. Supreme Court Justice Lady Hale emphasised in the case of Re: J [2013] UKSC 9 that the requirement that the threshold criteria must be met before a court can consider what order, if any, should be made in respect of a child is designed to restrict compulsory intervention in family life to cases which genuinely warrant it, while enabling the court to make the order which will best promote the child’s welfare once the threshold has been crossed.
20. The court must be satisfied that – at the time proceedings were issued - the children concerned were suffering or were likely to suffer significant harm and the harm or likelihood of harm must be attributable to the care given to the children, or likely to be given to them, not being what it would be reasonable to expect a parent to give to them.
21. In this case – it is accepted that the court can make the findings of fact set out in the schedule dated 18th May 2015 and on the basis of those findings determine that the criteria in section 31[2] CA 1989 are met.
Legal Principles to be Applied in Determining the Orders to be Made
22. Having found that the criteria set out in Section 31[2] CA 1989 are met I must now go on to consider whether to make any orders in respect of the children and if so, what those orders should be.
23. The Children Act 1989 and the Adoption & Children Act 2002 set out the guiding principles which form the basis upon which these proceedings including this hearing are conducted – taking into account the judgments of the higher courts providing direction and guidance as to how these principles must be interpreted and applied.
Firstly
Section 1[2] ACA 2002
24. In determining the appropriate orders to be made – section 1[2] of the ACA 2002 requires that the welfare of the children throughout their lives must be my paramount consideration.
Secondly
Sections 1[2] & 2A CA 1989 and Section 1[3] ACA 2002.
25. The principles encapsulated in section 1 [2] CA 1989 and section 1[3] of the ACA 2002 – which relate to delay - apply and the court is required pursuant to Section 2A of the Children Act 1989 to presume, unless the contrary is shown, that involvement of a parent in the life of the children concerned will further the welfare of the children.
Thirdly
Section 1[3] CA 1989 and Section 1[4] ACA 2002.
26. The court must have regard to the matters set out in section 1[3] of the Children Act 1989 and section 1[4] of the Adoption and Children Act 2002 which have become known as the welfare checklists.
Fourthly
Section 31[3A] CA 1989
27. Before making care orders the court is required pursuant to Section 31A of the Children Act 1989 to consider the permanence provisions of the Section 31A plans for the children and pursuant to Section 34[11] to consider the arrangements the Applicant LA proposes to make for affording contact with those identified in section 34[1] of the Act – in this case both parents - and to invite the parties to these proceedings to comment on those arrangements.
Fifthly
Articles 6 & 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
28. The case of Re: B [2013] UKSC 33 lies at the heart of the jurisprudence concerning the making of care and placement orders and is thus of fundamental importance to this case.
29. The decision of the Supreme Court in the case of Re: B emphasises the duty of this court to determine these applications in a way which is compatible with the children’s and each of their parents’ Article 6 rights to a fair trial and Article 8 rights to respect for his or her family life and in a manner which is proportionate to any risks identified which the children would face in the care of their parents.
30. Article 8 of the Convention is of such significance that it bears repeating in full. It provides that
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.
31. In order to determine the applications in the manner prescribed by the Supreme Court, I must bear in mind nature of the orders I am invited to make, described in the judgments as a ‘very extreme thing, a last resort’ to be made ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do’.
32. The proper interpretation of this aspect of the judgments delivered in the case of Re:B has been considered by the Court of Appeal in the case of CM –v- Blackburn with Darwen Borough Council [2014] EWCA Civ 1479. In his judgment, Lord Justice Ryder explains that the phrase “nothing else will do” does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the children. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of each child.
Sixthly
Analysis of the options available for the children
33. In determining whether to make orders in respect of the children, and if so what those orders should be, it is necessary to undertake an analysis of each of the options available to the court and to assess each of these options in the context of the other options as the decisions of the Court of Appeal in the cases of Re: B-S and Re: R [2014] EWCA Civ 1625 make clear.
34. In Re: B-S [2013] EWCA Civ 1146 the President in his judgment emphasises two important matters of principles drawn from the judgments of Supreme Court Justices Lord Neuberger and Lady Hale in the case of Re: B which are to be taken into account in carrying out the analysis of the options available to the court.
‘although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible’.
[g] the range of powers available to the court under this Act in the proceedings in question
- and section 1[6] of the ACA 2002 which provides that
1(6) The court .. must always consider the whole range of powers available to it in the child’s case (whether under this Act of the Children Act 1989.
"before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support."
38. In this context – the court must consider the decision of the ECtHR in the case of YC –v- United Kingdom [2012] EHRR 967 para. 134. The court found that:
“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.”
39. Therefore, and as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Supreme Court Justice Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions".
40. In considering the range of orders available to the court – Lord Justice McFarlane explains at paragraph 50 in his judgment in the case of Re: G[2013]EWCA Civ 965 that there must be
41. “a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare”
The Evidence
42. In determining the applications before the court – I have considered the documentary filed and heard the oral evidence of the children’s social worker Jeanette Mooney, the Family Friend and the Children’s Guardian.
43. Dr Naomi Murphy prepared a report dated 23rd March 2015 about the Father and a report dated 30th March 2015 about the Mother.
44. Dr Murphy describes the poor personal hygiene of the parents as “immediately striking” noting that they were “extremely malodorous” presenting themselves for her assessment with greasy hair, dirty fingernails and stained clothing.
45. The Father was aware that social care services had concerns about his personal hygiene and Dr Murphy states “it was difficult to understand why he hadn’t addressed this or what function it may serve for him”. He was guarded in the information he was willing to reveal, so that Dr Murphy believes that the Father may meet the diagnostic criteria for a personality disorder but was not able to determine this conclusively. He minimised his behaviour in the physical assault of his nephew and lacked insight into the reasons for his violence.
46. Dr Murphy concluded that there were a number of aspects of Father’s presentation which are “likely to impact negatively upon his capacity to parent” specifically:-
a. extremely poor personal hygiene and the inability to ensure good hygiene within the family home;
b. failure to take responsibility for his own actions and the impact that he has upon others making it hard to learn from his mistakes;
c. inability to regulate his emotions with over-reliance on anger and avoidance of affect – poor coping strategies which place a child at risk of harm;
d. inertia – leading to a failure to act to ensure the basis needs of children are met;
e. dishonesty – impacting on his ability to work co-operatively with others.
47. The Mother was also described as fairly guarded in the information she was willing to provide to Dr Murphy so that it was not possible for her to determine whether she meets the criteria for a diagnosis of personality disorder which the documentary evidence provided to Dr Murphy suggested may apply. The Mother found it difficult to acknowledge or articulate her emotions and presented as extremely passive and lacking a sense of competence as an adult, so that Dr Murphy considered her poor personal hygiene might be attributed to what she describes as a “if you can’t beat them join them” mentality in response to the Father’s own poor hygiene.
48. Dr Murphy identified the same risk factors as for the Father but added, in the Mother’s case, her lack of ability to assert her own needs. She accepted the Father’s account of the assault on his nephew at face value and she found it difficult to consider information she found distressing or to contemplate the possibility of sexual abuse which would serve as a barrier to protecting children. She was prepared to opt out of maintaining standards of hygiene for herself or the home in response to the Father’s neglect and this could lead to her also withdrawing from caring for the children.
49. Asked to consider treatments which may improve the ability of the parents to care for children, Dr Murphy reported that it is unlikely that they would be able to access psychological support or to engage in a way which would enable them to benefit from such support.
50. The poor personal hygiene noted by Dr Murphy has also been an issue during contact visits attended by the parents. There has been a failure to provide proper supervision for the children, and Child A has suffered distress during contact sessions due to the Father’s angry and aggressive behaviour. Although the honesty of the parents is not an issue which has specifically arisen during the contact sessions, each of the other concerns identified by Dr Murphy in theory has been amply demonstrated as a concern in practice in the contact sessions.
51. The Family Friend identified by the parents, the adult daughter of their neighbours, is 51 years of age. She has an adopted daughter living at home with her, now aged 16 years and her son is an independent adult with his own home. She has seen Child A on five or six occasions in the company of her own mother but was never responsible for his care and has never seen Child B. She has not sought contact with either child during the period they have spent in foster care.
52. The Family Friend worked as a foster carer for another local authority between 3rd December 2001 until 23rd December 2013 and was removed from the register of foster carers on 7th April 2014. The Family Friend used the Independent Review Mechanism to challenge this decision and her case was considered by the Independent Review Panel on 19th August 2014. The Panel upheld the decision to remove the Family Friend from the register of foster carers.
53. The assessment of the Family Friend as a potential carer for the children undertaken by the children’s social worker is described as a viability assessment and an addendum but provides the court with a great deal of detailed information about the Family Friend. Ms Mooney was able to amplify her written evidence to the court, providing additional details and specific examples of the issues of concern in response to questions raised with her about her assessment.
54. Ms Mooney had seen the files compiled about the Family Friend’s work as a foster carer. Of the 19 children formally placed in her care [as oppose to respite care], 7 placements were terminated by the Family Friend at short or no notice including the last placement terminated on 23rd December 2013 with the child concerned being required to leave her home that day without a toothbrush or washbag and with only limited supplies of medication he required to control his epilepsy. The files record that the Family Friend found herself unable to manage the behaviour of a number of the children placed in her care. On these occasions, the Family Friend had become anxious and hostile towards social workers seeking to assist her. There were occasions when the behaviour of a fostered child towards the Family Friend’s adopted daughter led to the Family Friend accusing the local authority of “allowing her daughter to be abused” when the fostered child was not immediately removed from her home on issues of concern being raised. The Family Friend repeatedly shared confidential information about her own adopted daughter and about the children placed in her care with acquaintances and there were two occasions when children in her care were allowed to have contact with family members without the prior authority of that child’s social worker. When asked about unauthorized contact for one 4 year old child with her father, the Family Friend said that she had arranged this contact at the request of the child because no one was listening to the wishes of the child concerned.
55. The Family Friend believed it was unfair for information gathered about her work as a foster carer to be taken into account in considering her application to be considered as a carer for the children in these proceedings, there were significant delays in securing her consent to enable Ms Mooney to examine the files held. The Family Friend asserted that there had been difficulties with just one of the children placed in her care despite the files revealing numerous difficulties in addition to the 7 placement breakdowns.
56. Ms Mooney concluded that there would be a high risk that a placement of Child A and Child B with the Family Friend would break down if their behaviour was challenging to her. She believed that the Family Friend would not be in a position to understand the emotional needs of Child A, having demonstrated no understanding of the impact on the children placed in her care of her decision to terminate their placements with her at short or no notice and no understanding of the effect on her own daughter of the difficulties caused by her work as a foster carer.
57. Ms Mooney was also concerned about the Family Friend’s motivation for putting herself forward as a potential carer for Child A and Child B. Asked why she wished to care for Child A and Child B, the Family Friend said that she was between jobs and therefore available to care for children and that her mother informed her that the parents had suggested her as a carer for the children describing herself as “quite shocked” by this. In her oral evidence, the Family Friend said that “it would be nice” if the children could be placed in her care as she cared about children but she did not describe any particular or personal link with Child A and she has never met Child B. The Family Friend described fostering as her career and in the statement she filed in support of the application for an adjournment, she asserts at paragraph 67 that “when being considered to be eligible for fostering, the criteria are more stringent that[sic] that for special guardianship”. The impression she gave was that she saw acting as a special guardian as a means of resuming her career as a carer in a way which circumvented the restrictions placed on her working as a foster carer.
58. The Family Friend made it perfectly clear in her oral evidence that she would not be prepared to seek assistance from social care services with any difficulties she might face in caring for Child A and Child B, stating that when she had sought assistance in the past, “It is thrown against me as if I cannot cope”. Discussing the situation for the child who was required to leave her care on 23rd December 2013, the Family Friend showed no empathy with or sympathy for the child concerned, justifying her actions by stating that she sent an expensive present she had purchased for the child for Christmas with his other belongings which she packed up whilst waiting for him to be collected from her home.
59. In her oral evidence, the Family Friend was vague, rambling and pre-occupied with herself. She minimised concerns about her work as a foster carer, acknowledging that what was recorded “looked bad” but failed to address the issues raised.
60. It was pointed out to the Family Friend that the detailed and extensive minutes of the Foster Care Panel’s meeting and the Independent Review Panel do not record the explanations she gave to the court about the breakdown of the placements of children placed in her care. The Family Friend simply stated that the accounts she gave to the court had been given to the Foster Care Panel and at the Review Panel and she could not say why the minutes did not reflect these accounts and in fact gave false information about the accounts she was said to have presented.
61. The Family Friend was asked about the impact on her daughter of introducing two very young children into their home. Both in the assessment and in her oral evidence, the Family Friend’s response was that there would be no impact on her despite being able to provide a series of examples when the presence of fostered children in her home had made the situation for her daughter difficult. She commented that her daughter “took the brunt of it” when speaking of the problematic behaviour of some of the children placed in her care yet still she appeared unable to make a connection between these problems and the possibility of difficulties for her daughter in the future. Asked to consider this more carefully, the Family Friend did acknowledge that there would be changes in their lives but simply felt that her daughter would support her in caring for Child A and Child B.
62. The Family Friend demonstrated in her oral evidence the difficulties faced by Ms Mooney in seeking to assess how the Family Friend felt introducing two young children into the home she shares with her daughter would affect her daughter. The Family Friend, in her oral evidence as in the assessment, was vague and evasive. She did not appear to have considered the issues arising practical or emotional and the response she eventually gave – that her daughter would always come first – gives rise to real concerns for Child A and Child B should difficulties arise. The clear impression given by the Family Friend was that she would not make her care of Child A or Child B her priority if there was a conflict between their needs and those of her own daughter.
63. The Children’s Guardian confirmed in her oral evidence that her recommendations remain as set out in her reports filed in these proceedings. Whilst not doubting that the parents love their children, and readily acknowledging their commitment to the children demonstrated in their regular attendance at contact sessions and for assessments including meetings with social workers, the psychologist and herself, she does not believe that the needs of the children could be met by their parents.
64. The Children’s Guardian accepted that the Family Friend did appear committed to offering to care for the children. She too had attended for assessment sessions and appointments and she had willingly attended court when invited to listen to the social work evidence and to give her own evidence. She described the work undertaken with the Family Friend by Ms Mooney as in depth and detailed and she noted that the fostering records had been reviewed by both the Foster Care Panel and the Independent Panel. In her view there was evidence demonstrating that to place Child A and Child B in the care of the Family Friend would place them at risk of harm and she was opposed to any adjournment of these proceedings to investigate the situation of the Family Friend further.
Options Available In These Proceedings
65. The court could make no order in these proceedings – which would mean that the children would return to the care for their parents who would share parental responsibility for them though they would be regarded by the Applicant Local Authority as children in need and would be provided with support and assistance as a result. Alternatively, the court could make the children the subject of child arrangement orders providing for them to live with their parents. It would be open to the court at the same time make the children the subject of supervision orders or family assistance orders placing the Applicant Local Authority under a statutory duty to allocate resources in order to advise, assist and befriend them.
66. The court could make the children the subject of care and placement orders as sought – approving the care plan which provides for them to be placed with permanent adoptive carers and for direct contact with their parents to be reduced until a permanent adoptive placement is found and then replaced with indirect, letterbox contact.
67. No party suggests that leaving these young children in a long term foster placement is a realistic option for their care. However, the court could determine that further investigations are required before a final judgment about the appropriate orders to be made can be reached. In this case, the particular matter which it is suggested requires further investigation is the ability of the Family Friend to care for the children.
Sections 1[4] ACA 2002 and Section 1[3] CA 1989
68. The children’s social worker and their Children’s Guardian both confirm that the parents love these children.
69. The commitment of the parents demonstrated by their attendance for contact sessions and for all other appointments offered to them for assessments is also clear.
70. In determining the appropriate orders in respect of the children I have considered in particular the following matters:
[d] their age, sex, background and any characteristics of theirs which the court considers relevant;
71. Child A is a boy who will be 2 years of age on 25th June 2015, and Child B is a girl aged 5 months. It is relevant to note that they have lived together since Child B was born.
[a] the ascertainable wishes and feelings of the children concerned [considered in the light of their ages and level of understanding];
72. Child A and Child B are too young to express their wishes and feelings but it is proper to assume that they would wish to live with her parents if they could possibly meet their needs.
[b] their physical, emotional and educational needs;
73. Child A suffers from eczema on his face on occasions. He appeared to have developmental delay on placement in foster care but his development has progressed since placement. He does not always express his pain or distress, possibly because in the care of his parents he came not to expect a response from his parents to such expressions, and his carers need to be aware of the neglect he has suffered as a young child and be responsive to his needs. Child B has not suffered neglect and has the same physical, emotional and educational needs of other young girls of her age.
[c] the likely effect on him of any change in his circumstances;
74. Child A has already faced changes in his circumstances, moving from the care of his parents into foster care and with his younger sister he faces further change in the future in moving from foster care to their long term carers.
75. I agree with her Children’s Guardian that any delay in determining where the children are to live will be detrimental to them.
[c] the likely effect on the child [throughout his life] of having ceased to be a member of the original family and become an adopted person;
76. Children who become adopted persons may face emotional challenges as they grow up and come to understand that they are not living with their original family. Older children and young adults often wish to seek out and meet with members of their family of origin and young people have considerable expertise in the use of social media to communicate with others, often without the knowledge of those responsible for their care. The real possibility that the children will wish to have direct contact with their parents as young adults and the potential difficulties for them, practical and emotional, which would arise must be taken into account. They would need support from their carers in addressing these issues.
77. In determining what order to make in respect of each of the children, I must consider not just the immediate future – when being so very young they will quickly form attachments to and relationships with their adopted carers and their extended family – but must look forward in time to the point when the children may find it difficult to come to terms with their status as adopted persons and the issues that will raise for them. Sadly, some adoptive placements do break down. Whilst there are many potential advantages for the children in an adoptive placement which would meet all of their immediate needs – physical, emotional and educational – to a high standard it must be taken into account that there are also these possible negative consequences of such a placement for the future.
[f] the relationship which the child has with relatives and with any person in relation to whom the court considers the relationship to be relevant including –
[i] the likelihood of the relationship continuing and the value to the child of its doing so;
78. The children have regular contact with their parents. If they were to return to their care, they would also have the opportunity to form relationships with members of their extended maternal and paternal families and to develop as other children do a sense of their own identity within their family of origin and an understanding of their cultural and religious background and heritage.
79. If the children are placed with another family with a view to their being adopted, and if as planned there is no direct contact for the children following their placement with their parents, they will no longer benefit from the love they are shown during the contact sessions.
[ii] the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs;
80. There are no family members in a position to care for the children. The Family Friend is willing to care for the children. If the children were to be placed in her care, she would facilitate direct contact for the children with their parents and so the children would benefit from this continuing relationship in a way which would not be possible in an adoptive placement.
81. I have therefore considered whether further information is required about the ability of the Family Friend to care for the children.
82. I agree with the Children’s Guardian that the assessment which has been undertaken as to the ability of the Family Friend to meet the needs of these children by Ms Mooney has been in depth and detailed and Ms Mooney was an impressive witness, able to justify each of the conclusion she reached about the Family Friend and amplify her assessment with specific examples in response to challenges.
83. In my judgment there is clear evidence from the assessments undertaken that the Family Friend would not be in a position to meet the needs of these children and further investigation would cause delay with no prospect whatsoever of the issues of concern arising in respect of the Family Friend being addressed. The Family Friend would not be in a position to provide Child A with the sensitive caring he needs arising from the neglect he suffered in the care of his parents. His behaviour is likely to be challenging and the evidence that the Family Friend would terminate his placement at short or no notice faced with such challenging behaviour is plain. The emotional harm to the children if they were placed with the Family Friend only to find their placement peremptorily terminated would be grave. There is no prospect of the Family Friend seeking or accepting advice and support from social care services in caring for the children, given her views about these services expressed in her oral evidence.
84. The motivation of the Family Friend in seeking to care for the children appeared in my judgment to be to resume her career as a carer for children in a way which circumvented the decision of the Fostering Panel and the Independent Review Panel that she was not an appropriate person to act as a foster carer. She appeared to believe that this court would be satisfied with a carer for these children who would not be a suitable foster carer. She is wrong.
[iii] the wishes and feelings of any of the child’s relatives or of any such person regarding the child.
85. Both parents have made it clear that they are opposed to the children being placed for adoption.
[f] how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
and
[e] any harm which he has suffered or is at risk of suffering;
86. The parents themselves recognize that the evidence filed demonstrates that they are not capable of meeting the children’s needs. The evidence of the psychologist Dr Murphy is clear and detailed and the risks to the children she identified are illustrated in the work undertaken with the family prior to the commencement of these proceedings and have been demonstrated during contact sessions.
87. Placed in the care of their parents, the children would be at risk of suffering harm due to neglect of their basic physical needs including their personal hygiene, the provision of a clean, safe home and attention to their medical needs. Their physical health would suffer, their need for stimulation would not be met and their parents’ inability to regulate their own emotions would place the children at risk of suffering emotional harm. The level of risk in this case is at the point where the children would inevitably suffer significant harm within a short period if returned to the care of their parents. They would have to be removed from their care back to foster placements and would suffer emotional harm as a result.
88. I bear in mind in considering these issues the significant benefits that there would be to the children if they could return to the care of their parents identified above and the importance of looking whenever possible of rebuilding a family and respecting this family’s right to family life. However, I accept the evidence of Dr Murphy that the parents would be unlikely to engage in therapeutic work to assist them in addressing the problems they face. The family were provided with intensive practical support prior to the commencement of these proceedings but this was not sufficient to prevent Child A suffering neglect and being placed at risk of physical and emotional harm and therefore there are no means available to reduce the risks in this case to a manageable level to allow the children to return home.
Foster care/Adoption
89. In assessing the potential benefits and detriments for the children in an adoptive placement as compared to a long term foster placement – I have considered the judgment of Lady Justice Black in the case of Re: V [2013] EWCA Civ 913 at paragraph 96 where she identifies some of the advantages and disadvantages of these alternatives even though no party suggests that this would be an appropriate way to meets the children’s needs.
90. Adoption makes a child a permanent part of the adoptive family to which he or she fully belongs. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change and who is not in a position to determine the caring arrangements for children placed by the local authority in their care.
91. Whereas parents may apply for the discharge of a care order with a view to having the children return to live with them, once an adoption order is made it is made for all time.
92. Contact in the context of adoption is different from contact in the context of a fostering arrangement. Where children are in the care of a local authority, the starting point is that the authority is obliged to arrange reasonable contact for the children with their parents as provided by Section 34[1] of the Children Act 1989. The arrangements for contact can be regulated by orders under section 34 but there remains a marked contrast with the situation for adopted children. If a placement orders is made for the children – the care plan provides for there to be no direct contact for them with their parents and they would need the permission of the court to make an application for contact.
93. The routine of life is different for a child in a long term foster placement. The Local Authority would have a role in their lives for the whole of their childhoods. There would be regular reviews and it would be necessary to consult with social workers about many issues which would ordinarily be decided by parents or carers. In contrast, for the adopted child, the Local Authority has no further role in his or her life.
94. A family approved as adopters would be in a position to meet the children’s practical, emotional and educational needs on a permanent basis and this must be balanced against the loss of the links with their birth family which would be a consequence of the care plan for adoption.
Adjournment
95. The proceedings could be adjourned. However, I can identify no advantage to the children in delay in reaching a final determination in this case. Having determined that there is no prospect of the Family Friend meeting the needs of these children I find that here are no avenues left unexplored which might on further enquiry either enable the parents to be better placed to meet the needs of the children or provide an option for their future care other than those which have been explored – and it is recognized as a matter of law as I indicated at the commencement of this judgment that delay in determining this matter is likely to prejudice the welfare of the children.
evaluation of options
96. Having identified the positive and negative aspects of each potential option for each child I must now determine whether to make any orders, and if orders are to be made, what those orders should be – the welfare of the children throughout their childhood being the paramount consideration in forming this judgment.
97. The only realistic options for the children are return to the care of their parents, placement long term in foster care or the making of care and placement orders – since I have found no factors to support the adjournment of these proceedings. No party suggests that the needs of these children would be met in a long term foster placement and the disadvantages for these young children in such a placement clearly mean that it would not meet their needs for long term stability and security.
98. Balancing the harm the children would suffer by not being returned to the care of their parents and the risks for them in an adoptive placement against my findings as to the risk of the harm, the nature and likelihood of harm I have found they would face in the care of their parents taking into account the support and assistance which could be provided to reduce or manage those risks, I am satisfied that placement for adoption is the only option which safeguards the welfare of each of the children throughout her lives.
99. I have also considered the proportionality of permanent separation when set against the findings made as to the harm the children would suffer or be at risk of suffering if returned to the care of their parents. The risks faced by the children on return to the care of their parents are such as to negate all the other possible factors in favour of this course – indeed – so significant are the risks that the children would not be in a position to derive the benefits which they should receive from being cared for in their natural family.
100. The orders sought would be an interference with the children’s and their parents’ Article 8 rights to family life and such an interference will only be sanctioned by the court if it is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children and I am so satisfied in this case.
Application for A Placement Order
101. Having determined that it is in the best interests of the children to make them the subject of care orders with care plans providing for them to be placed for adoption, I must go on to consider the applications for a placement order in respect of each of them.
102. Section 21[3] of the ACA 2002 provides that
(2) The court may not make a placement order in respect of a child unless—
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent’s or guardian’s consent should be dispensed with.
103. Both parents have made it clear that they do not consent to the children being made the subject of placement orders. I must therefore determine whether a ground for dispensing with consent of the parents is established. Pursuant to the provisions of Section 52[1][b] ACA 2002 – the court cannot dispense with the consent of any parent of a child to the child being placed for adoption unless satisfied that the welfare of the child requires the consent to be dispensed with.
104. Taking into account the analysis of the relevant statutory criteria, the welfare evaluation set out above and the conclusion that in my judgment placement for adoption is the option which safeguards the children’s welfare throughout their lives, I have considered whether dispensing with the consent of each of the parents to the application for placement orders is a proportionate interference in the family life of each of the children and their parents. Although the nature of the interference with family life is the most draconian this court can sanction, the level of risk to the children if the consent of their parents to the applications for placement orders is not dispensed with is such that it is both proportionate and necessary to dispense with their consent because the welfare of the children requires their consent to be dispensed with.
105. I therefore make the findings set out in the amended schedule dated 18th May 2015. On the basis of those findings I find that the criteria set out in Section 31[2] CA 1989 are met in this case. I dismiss the application for the proceedings to be adjourned for further investigation of the ability of the Family Friend to care for the children. I make both children the subject of care and placement orders dispensing with the consent of both parents on the grounds that the welfare of the children requires that their consent be dispensed with. There will be detailed assessment of the costs of the publicly funded parties.
106. I give permission for the Solicitor for the Mother to disclose to the Family Friend those sections of this judgment which relate to her in informing her of the outcome of these proceedings.
HHJ Troy
20th May 2015