England and Wales Family Court Decisions (other Judges)

IN THE MILTON KEYNES FAMILY AND COUNTY COURT

		351 Silbury Boulevard Witan Gate East Central Milton Keynes Buckinghamshire MK9 2DT
		6th February 2015

HHJ VENABLES:

1. The court is concerned with three children: J who is now seven, K who is now four and S who is soon to be two. The mother of all three children is L. The father of J and K is R .The father of S is X . I give this judgment extempore at the conclusion of a five day hearing.
2. This is the final hearing in care proceedings brought by Buckinghamshire County Council who seek care and placement orders for the boys and a special guardianship order in respect of S who they seek to place with the paternal grandparents.
3. The paternal grandparents are not parties to the proceedings but have attended throughout the hearing. The children are represented through their Guardian Steve Brown. I have read the court bundle and the supplemental documents provided by the Local Authority from the Probation Services concerning X. I have heard evidence from Sheila Newlands, Kerry Deema, Julie Smith and Emma Trafford who have each been involved in assessments of the family members. I have also heard from the social worker Michelle Ball; Jane Bowen of the family-finding team. I have of course also heard from L , the children's mother and her partner DA and the maternal grandmother and paternal grandmother. I have also had the benefit of hearing from Keith Latham the public protection officer, from the Maternal Grandmother and of course from the Guardian.
4. The history

L has been known to Social Services since 2011. There have been ongoing concerns around Domestic Violence, physical and emotional neglect. The children presented at school dirty and smelly. The home conditions deteriorated alongside Mothers mental health. The children were delayed in speech language and social skills. Mother's partner was involved with the children for the last two-plus years before their removal. There was concern around his aggressive behaviour, his mental health and drug misuse. He has a history of violence against partners and he struggled to work co-operatively with the agencies.

5. The mother and children lived a nomadic and unsettled life. They spent some extended periods with the maternal grandmother but even through those periods concerns about the children's practical and emotional care continued. Mother eventually moved to her own accommodation with D A. The children were removed by the police on 6 March 2014 on the basis of neglect. The photographs of the property taken by the police show chaotic, unhygienic and unsafe conditions.

The proceedings.

6. The three children were placed under police protection and Mother and D A charged with three counts of neglect on 7 March 2014. The three children were placed in Local Authority accommodation under a Section 20 agreement with the agreement of L and R. At the time the protective measures were taken it was believed that D A was the father of S and his consent to the Section 20 accommodation was also given.
7. The three children have remained in foster care since. The boys and S have remained in separate placements but enjoyed regular sibling contact. Both L and D A have been charged with neglect of the three children; they have both now pleaded guilty to those charges. They are due to be sentenced, I am told, towards the end of this month. I understand a pre-sentence report is being prepared. I am told that L is hopeful of receiving a non-custodial sentence but that the option of custody remains a live one.
8. The Local Authority issued care proceedings on 30 April and the Local Authority have conducted a significant number of assessments of family members. The assessments of Mother, the maternal grandmother, the father R, his estranged wife S, of X, Mr and Mrs L and were all negative. The only positive assessment completed was that of the paternal grandparents Mr  and Mrs T.
9. Until July of last year, D A was assumed to be the father of S. The DNA test confirmed that he was not. L acknowledges that she was slow to share the true identity of S's father. In September 2014 L acknowledged that she had had a relationship with X. On 9 September 2014 a disclosure order was made against the DWP to find him. There followed DNA tests which confirmed X as S's father on 3 November. He was joined as a party to these proceedings on 10 November.
10. It is very much to be regretted that this case which was listed, I believe, for two previous final hearings has had to be adjourned to enable the family of S to be found. X was joined as recently as 10^th November. Swift action by this Local Authority resulted in a family group conference and on 20th November the identity of potential carers within the paternal family were identified.

The background of X

11. X was convicted of rape and two counts of attempted rape in 2007. The offences occurred when he was 17. The victim was 12. He has no other convictions. He was not given a custodial sentence. He has been blighted by a significant health problem with his heart which has been managed by medication and surgery. He has been entirely open about this conviction, as has his family. He remains subject to a Sexual Offences Prevention Order made on 21 July 2009 which continues until further order. Under that order X is prohibited from communicating indirectly with any girl under 16; being alone with any girl between the ages of 10 and 16. X has recently instructed his criminal solicitors to seek variation of that order on the basis that he no longer poses a significant risk. I am informed that there is to be a further hearing in respect of that application within the next few weeks. I have no reliable information as to the process or the likely outcome save that both the Local Authority and the children's Guardian in these proceedings are satisfied that the level of risk he poses is reduced and that they see him having an active role in S's life if she joins the household of the paternal grandparents with whom X lives.

The threshold and the law

12. The threshold has been agreed (see page A45) .The threshold having been crossed, the parties and the children's Article 6 and Article 8 rights are engaged. This court is mindful that the children's welfare is paramount in the context of a care application and that it is their welfare throughout their lives which is relevant in the context of the placement applications brought in respect of the boys. It is of course the civil burden of proof which applies in these proceedings and where I am required to make findings I do so on the balance of probabilities.

The position of the parties

a) The Local Authority,

i) the boys.

13. K and J have been in their current foster placement since March 2014. They are making considerable progress. The Local Authority say that the boys should be given the opportunity of a permanent home through adoption; however, they recognise the practical challenges this can present because of the dearth of suitable placements for two brothers of their ages. They have thus come to the view that their search should be limited to four months and in default of finding a suitable match they should remain in long-term foster care. The boys' current carers have recently confirmed that if an appropriate adopter cannot be found then they would like to care for the boys as long-term foster carers.

ii) S.

14. The Local Authority asks the court to make a special guardianship order to the paternal grandparents. They are content for X to remain within the household provided he is loosely supervised within that household. Yesterday they confirmed that they will fund a full risk assessment within six months of the special guardianship order to inform if, how and when the structures around X's contact are to be loosened. The Local Authority say, so far as contact is concerned, that for the boys there should be no direct contact under an adoptive placement but under a long-term fostering arrangement L and R should have contact three times per annum.
15. The Local Authority say that D A should not play a part in contact save to participate in a goodbye contact. They propose, so far as S is concerned, three times per annum for L whilst placement under a special guardianship order with all contact to be under review. The Local Authority's position is supported by the children's Guardian.

The mother

16. L concedes the threshold but asks the court to return all three children to her care. She candidly acknowledges that the court may conclude she cannot care at the moment but invites the court to adjourn to assess her capacity for change. In default, she asks that the children are placed with her mother but acknowledges that her mother has been the focus of a negative assessment. Her final position for the boys is to ask that the court reject the application for a placement order and instead make a care order with the boys to remain in placement with their current carers on a long-term basis. She would not oppose S being placed with the paternal grandparents under a special guardianship order with the father living in that household and playing a role in the care of S. She asks for contact six times per year for each child and asks the court to permit her partner to participate.

R.

17. R is a single man without accommodation. His earlier hopes of acquiring accommodation and establishing a settled life to enable him to care for the children have not borne fruit. He has sensitively and carefully considered his position and does not seek to put himself forward as a carer but he forcefully argues that the boys should remain where they are under an arrangement for long-term foster care. He invites the court to authorise six times per annum contact plus indirect contact. He urges the court to reject the Local Authority's plan for adoption on the basis that it is not a realistic option in light of the Local Authority's family finding evidence which suggests that the prospects of finding a placement are limited.

X

18. At the outset of this hearing X asked the court to make an order that S could be placed with him. His position has evolved but he now supports the Local Authority's plan and confirms his agreement to work co-operatively with the Local Authority in any risk assessment. He further agrees to abide by the structures around his contact pending the outcome of the risk assessment and the practical considerations flowing from his application to vary the SOPO.

The Guardian

19. The Guardian supports the Boys being made placed for adoption with a limited search of four months and in default long term foster care.
20. The Guardian supports S being place with the paternal grandparents under and SGO.

Discussion and conclusions.

21. It is clear that L has suffered from depression since she was at least 20 and that this has significantly impacted on her functioning and her ability to care for her children. Dr McLintock assessed her and identified that she required both pharmacological and therapeutic support. In her evidence L spoke with real feeling about how she had failed the children. She looked visibly distressed when looking at the photographs of the appalling conditions in which the children had been living and acknowledged how her reluctance to address her difficulties had impacted on the children. Her counsel submits and I accept that her untreated mental health left her helpless to address the chronic deterioration in the care she provided for the children. It is noteworthy that when she was first assessed within these proceedings she showed very limited insight into the children's perspective, blaming the professionals for her difficulties. This week I saw the beginnings of an acceptance of responsibility and with that the beginnings of a journey to change. It is to her credit that L has re-engaged with her GP and is now on anti-depressants. She commenced a course of CBT as recently as 12 January and intends to engage with other therapeutic services at the conclusion of this course.
22. Dr McLintock, forensic adult psychiatrist, in response to written questions said L was now engaging in therapies in line with his recommendation but could make no comment as to her capacity to change, as he had not seen her since last S. It is clear that L is feeling the benefits of her medication and therapy; however, her vulnerability was made all too clear when she told the court that she was not sure how she would go on in the event that she did not recover the care of the children. She has undergone many changes recently; she has moved to a new home, she is no longer living with her partner. She has only just started to engage in CBT. She struggled to answer how she would cope without Mr A at her side to care for the boys, even whilst acknowledging that the risk of domestic violence and conflict was reduced by the fact they are no longer cohabiting.
23. I give credit to L for the work that she has done and the changes she has made and I hope she keeps the work up for herself. I cannot, however, approve the children's return to her care, as I am clear that she does not have the ability to meet their social, emotional, psychological or educational needs. Furthermore, the court could not justify further delay for assessment as there are simply insufficient positive indicators of robust and meaningful change to justify any delay in the plan for the children.
24. The maternal grandmother was negatively assessed. She wishes to support her daughter. She offers to care for the boys but in evidence made clear that she thought the boys and indeed S should all be returned to her daughter's care. She could not accept that she had failed to protect or put in the support the children needed, even whilst the children were living in her household. I conclude that the assessments of the maternal grandmother were both accurate and insightful as illustrated by the maternal grandmothers own evidence.
25. R: I did not take oral evidence from R as no-one wished to cross-examine him. I am bound to say that I found his written evidence to be sensitive, considered and child-focused. It is very clear to me that he loves his boys very much. He was visibly distressed, as he is now, during the time that L was asked to consider the photographs of the conditions from which the children were removed. All professionals who have assessed or worked with R consider him to be a gentle man. He loves his boys very much. He is not considered to be a violent or challenging figure but rather a father figure who tended to take a back seat, let others sort things out and it was thus that he was not present to actively challenge Mother's care when things were deteriorating so badly. It is noteworthy that the foster carers speak so positively of him and his contact. He has been very supportive of the children's placement in care. He has been consistent in contact and the boys clearly enjoy seeing their dad. J has asked for a mobile phone to speak to his dad and R has noted with delight the boys' progress.
26. The current foster placement is regarded as a success by both L and R. Within the last two weeks the foster carers have indicated their willingness to care for the boys long-term if they cannot be placed with adopters. Upon enquiry, I was told that the Local Authority would begin the assessment of the current foster carers immediately in parallel with any adoptive search. The family finder for the Local Authority gave evidence and advised the court that 12 sets of siblings had been placed with adoptive families in the last 12 months. Of those sibships only two were both boys. Miss Bowen was clearly very experienced; she acknowledged that there was not a strong likelihood the boys would find a suitable adoptive home but there was sufficient basis to make a search for a time-limited period. She very helpfully provided a table of the adoption placements in the last year and this demonstrates the challenges of successfully placing the boys. It is submitted on behalf of both Mother and R that in this particular case the fact that the boys can remain in their current foster placement on a long-term basis must be balanced against the limited likelihood of adoption.
27. Mr Malik for the father further submits that on the facts of this case the court cannot be satisfied that adoption is a realistic option for the children.
28. The children's Guardian was a very eloquent and considered witness who has had the benefit of working as an adoption social worker for four years. He was very clear that these two young boys have been very affected by the poor parenting they received from L and even today J in particular experiences difficulties in regulating his emotions, bedwetting and his language. The Guardian is pleased to note that the children have made enormous progress in their current placements. He commends Mother for her efforts to address her difficulties and applauds R for his sensitivity and caring attitude to the boys, as demonstrated in these proceedings and in his support for their placement.
29. The Guardian acknowledges the challenges of finding an adoptive placement for the boys but is clear that on balance a permanent, stable and protected adoptive placement would best meet their particular needs. In his view, the optimal placement for the boys is adoption. Accordingly, a time-limited search should be undertaken and in default the boys should be placed in long-term foster care, there being a realistic presumption that they could remain where they are.
30. When considering the relative merits of adoption against long-term foster care for these boys, the court must consider the lifetime consequences and the loss of their relationships with their father, their mother and their reduced connection with their sibling. Their self-esteem and identity would necessarily be affected by the severance of those links. However, I accept the very powerful and compelling evidence of the Guardian as to the need for these two boys to have the benefit of stability, security and permanence in the protected form of an adoptive placement. They have suffered significant harm in the care of their mother. Their father has been a loving and important part in their lives but he has never had the role of their principal psychological parent.
31. The principle differences between long-term foster care and adoption were helpfully articulated by Her Honour Judge De Haas QC in the case of Re V. Pauffley J articulated the very precarious nature of the legal framework for a child in long-term foster care in the case of LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam). I acknowledge that the case of LRP concerned a child who was just a matter of weeks old and the boys here are four and seven, but the children's Guardian with his experience as a adoption social worker was clear that the intrusive nature of, and the structure of, long-term fostering would impact on these boys for a significant part of their minority.
32. I consider that looking at the boys' lifetime welfare, the inability of L or R to offer the boys permanence either now or within any reasonable child-focused timescale, the Local Authority's plan of adoption with a time-limited search for four months is the optimal plan for the boys and constitutes a proportionate interference with the rights of those involved.
33. The form of dual plan proposed by the Local Authority has been approved in principle by the Court of Appeal very recently in the case of CM v Blackburn With Darwen Borough Council [2014] EWCA Civ 1479 where Ryder LJ said at paragraph 36:

'It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation'.

34. Counsel for R urges me to reject the Local Authority's plan of adoption on the basis that it does not constitute a realistic placement option. I disagree. In my view the form of the placement is not only realistic but the only one that meets the welfare needs of the boys. The Local Authority's contingency plan assists this court in identifying a clear course for the boys if a suitable match for them is not found. The current short-term foster carers have made clear that they do not put themselves forward in competition with prospective adopters but as a contingency for them. Thus the practical consequences of the Local Authority's dual plan for these two little boys will be limited as they will be protected from any further moves save to an appropriate adoptive placement, if found.
35. Once the court makes its care order and placement orders it will be for the IRO to monitor the implementation of the Local Authority's care plan and the Local Authority's commitment to a time-limited search. The Local Authority's reassurance to this court that it will immediately commence the assessment of the current carers in parallel will be recorded on the face of the court's order as a recital. This together with a transcript of judgment will assist the IRO in providing a robust overview of the Local Authority's management of the boys' plan.
36. I am of course mindful that before making a care order with a placement order the court must consider the issue of contact. Miss Bowen made clear that in her work with adopters she does so on the basis that they should consider the possibility of direct contact but she would not wish the pool of adopters to be affected by a contact order which may in turn affect the decision of families to come forward. The children's Guardian considers that the need of these boys is for permanence in a forever family and to develop secure and permanent attachments, and that requirement must take precedence over contact in the context of adoption. He would not be opposed to the question being put to adopters but would not wish to see family finding being subject to a condition of contact, as the value of the boys' contact to their parents does not weigh as heavily as their need for security and permanence, although clearly it is an important feature.
37. Thus I make no order for contact but invite the Local Authority to make the enquiry as to direct contact and to facilitate indirect contact.
38. In the event the children are placed in long-term foster care, I propose to record in the recitals to my order the Local Authority's commitment to provide not less than three direct contacts with L and R each year, subject to review. I accept the Guardian's analysis of the benefits to the children of maintaining contact to both Mother and R at the same level in the short term. He articulated how contact even with a positive and supportive parent can throw up trauma and reignite anxieties and experiences of loss. However, I would invite the Local Authority to expressly consider at the LAC reviews: i) whether contact can be increased and, ii) whether the children's stability is sufficiently established to enable each parent to have differing levels of contact in the longer term.
39. As to D A, I recognise he feels that he has established a loving and close bond with the boys and indeed S. However on the evidence I accept the recommendation of the Local Authority and the Guardian that his continued involvement will be confusing and potentially destabilising.
40. Turning now to S, it is noteworthy that L does not oppose the making of a special guardianship order in favour of the paternal grandparents nor to X forming part of the household if the court finds that she is unable to care for S. I recognise that it must have been a very difficult decision for her to make, particularly where she had such understandable concerns about Xs history. It was her concern about his history that led to the delay in sharing his details. The delay was regrettable but it is important to note that having made that disclosure she has made it possible for S to remain in the family.
41. I have already set out my reasons underpinning my decision that S cannot return to her mother's care. The Local Authority's care plan for S is firmly supported by the children's Guardian. The fact of the father's convictions is very troubling and has been the focus of much of the court's enquiry in circumstances where the court is invited to approve a plan that X remain within the household with the paternal grandparents. The Local Authority completed a positive SGO assessment of the paternal grandparents and within that assessment both grandparents demonstrated an understanding of the significance and seriousness of their son's conviction. They demonstrate a clear child-focused approach to parenting and are alive to their role as protector as well as carer of S. The Guardian has been very impressed by the couple. Maternal grandmother gave evidence at my request and I was satisfied that she fully understood the nature of the court's and the professionals' concerns. I accept that she and her husband have worked transparently and co-operatively with the public protection officer.
42. X has not given evidence before this court but it is important to record that he has impressed both the social worker Michelle Ball and Julie Smith who conducted the assessments. He has also impressed the Guardian. He has acknowledged learning difficulties but has appeared contrite and remorseful for the awful crime he committed. He has not committed any other offences. He is seven years older. He is in a close and loving relationship with a young woman who is described as articulate, insightful and sensitive. There is a written report from Paul Cooke occupational therapist prepared in connection with the probation order which indicated he considered that X had moved from high to low-to-medium risk.
43. Keith Latham the public protection officer gave evidence to this court. I am afraid I found his evidence and the nature of his work with Father, his assessment of risk and the basis for it, as unsatisfactory and confusing. He advised the court he had not slept for 48 hours before attending to give his evidence and that may explain in part his difficulties. Nonetheless the Local Authority and the children's Guardian consider that it is and will be safe for S to be in the same house as her father in light of Father's motivation, stability, demonstrable empathy and insight. The Local Authority and the children's Guardian say that Father should participate in S's care but should not be left in his sole care until the level of risk has been further assessed. It was suggested that a risk assessment might be conducted within the context of the criminal application for variation of the SOPO. I expressed concern about this course since such an assessment would be focused on re-conviction rather than re-offending and child protection. I am now advised that the Local Authority will support the family in obtaining and funding a child-focused piece of work within six months to be completed as a forensic risk assessment and that will be to address the questions of future risk and how it can be managed if necessary. If the optimism of the Local Authority and the children's Guardian is borne out, this should enable the family to revert to a more relaxed arrangement with Father to have unsupervised care of S. I do not consider it necessary or proportionate for the court to delay approving the arrangement in light of the Local Authority's commitment to this assessment. I am satisfied that both X and his parents understand the structures to be put in place and that supplemental orders around contact would be an unnecessary and disproportionate interference with their family life. The Local Authority has prepared a support package. I still await final confirmation of the figure that is to be paid to the family and I am happy to be informed of that at the conclusion of today's business.
44. The question of L's contact with S is a very important and sensitive one. The SGO is designed to give the grandparents enhanced parental responsibility which will be essential to enable them to direct the basis on which contact arrangements are made. The grandparents agree to contact at a contact centre. The Local Authority and children's Guardian recommend three times a year. The primary objective is to enable S to establish a permanent relationship with secure attachments in the fathers household . No contact order is sought and none made by this court at this time. This is an arrangement that should be permitted to develop. If L can keep up with her medication and her therapy then family tensions and relations may ease and a review upwards would be possible, as indicated by the Guardian.
45. I am afraid that I cannot endorse that continued involvement of D A would be appropriate and I see that he should participate in a single contact for the purposes of saying goodbye. I think his involvement thereafter would be confusing and undermining.
46. Thus I will make the SGO in favour of the paternal grandparents. I will make the placement orders and care orders sought by the Local Authority in respect of the two boys and dispense with the consent of the parents on the basis that the boys' welfare requires it. I will order that there should be an anonymised transcript of this judgment; in line with the President's guidance to be prepared at the joint cost of the parties. I will direct that the transcript should go to the IRO and to any prospective adopters, if found, as I see it to be essential that they understand the reasoning behind the court's judgment.