England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		27th January 2015

THE JUDGE:

1. This is an application dated 22^nd January 2015, made by F, made pursuant to Section 24(2) of the Adoption and Children Act 2002 to revoke a placement order made by this court on 5^th December 2013 in respect of his son, I. There is a cross-application by South Tyneside Borough Council, the Local Authority, which, on 5^th December 2013, was granted the placement order in conjunction with the care order made at that time. The cross-application is made pursuant to Section 24(5) of the 2002 Act for the permission of the court to place I with prospective adopters who have been found by the Local Authority, have now been introduced to I, and are ready to take on his care. The two applications are, of course, closely related, the one having provoked the other.
2. At this hearing, the father has been represented by counsel, Mr Duffy. I am very grateful to him because it has all been convened in a relatively short period of time. The mother, to whom I will come in a moment, has been present throughout the hearing, supporting the father. At the outset, I gave permission for another family member to be present in court sitting with the mother and father to assist with any issues of interpretation.
3. This is, in fact, the second application to revoke the placement order. The first was made by I's maternal uncle on 28^th August 2014. Then, he having conceded that he lacked the relevant locus standi to make the application, it was followed by an undated application made by I's mother, M, who of course did have the appropriate locus standi. Both of those applications were heard and dismissed by this court on 23^rd September 2014. The maternal uncle had also effectively applied to revoke the care orders made in respect of I's older brother and sister, they being care plans for long term foster care, no placement orders having been made. The application was made by seeking a child arrangements order, which amounted effectively to an application to revoke the care order. His application for permission to appeal my refusal to grant him the leave that he sought was refused by the Court of Appeal on 11^th December 2014 and it was found to be totally without merit.
4. McFarlane LJ, despite the absence of any appeal in front of him by the mother, nevertheless went on to consider the position had the mother appealed and concluded that, had she, there was no appeal against my finding that her claim that she had changed her mind about the placement of the children with her brother-in-law was not a change of circumstances. Accordingly, any appeal by her would also have been refused and categorised as being totally without merit. I mention all of this because although the mother has no application before the court, she has, as I have said, indicated her support for the father's position as he did for her in September, and she too has filed evidence in support of his application.
5. This is a case with a considerable background and any court considering it hereafter will need to have regard to the judgment in the care and placement proceedings, given after the lengthy hearing in October, on 5^th December 2013, as well as my judgment on 23^rd September 2014, and the judgment of McFarlane LJ in the Court of Appeal on 11^th December 2014. I do not, in the circumstances, repeat the history in detail. The chronology, however, is highly relevant, not least because of the delay principle embodied in statute in Section 1(2) of the Children Act 1989 and specifically in relation to adoption in Section 1(3) of the Adoption and Children Act 2002. I am required to have it at the forefront of my mind in determining any application such as that before me concerning I, section 1(3) saying that, in general, delay in coming to a decision is likely to prejudice the child's welfare.
6. I is the youngest of three children. He was born on 15^th May 2012 and so is now 2 years 8 months old. South Tyneside Council issued its application for a care order on 14^th December 2012 and so I was then just 7 months old. He was, on or about the same day, received into foster care separate from his siblings and so has now been in foster care for a period of 25 months. The care proceedings were themselves significantly delayed by a number of factors, not least the 14 family members who the parents asked the Local Authority to assess as kinship carers. The result was that the judgment was given on almost the first anniversary of the children's reception into care. Meanwhile, the parents had separated. The mother had issued divorce proceedings on 10^th September 2013 and, indeed, made a virtue of that fact praying it in aid in favour of a return of the children to her care, or at least to a family placement with a member of her extended family. I will come to the circumstances of the care proceedings but, having made the orders that the court did, no applications were made, either to this court or to the Court of Appeal, to appeal those orders. The father had, in the care proceedings, supported placement with the mother and declined to put himself forward as a carer for any of the children.
7. Moving on, by August 2014, the Local Authority had found a potential match for I with another Asian couple said to be formerly practising Muslims but now practising Christians. It was clear in September, when the applications were made, that quite apart from the understandable desire on the part of the parents for I not to be adopted, this matching had caused particular upset. As I said in September, the desirability of a cultural match was obvious, but no single factor, and here, as it turns out, it is religion, should stand in the way of what is an otherwise good match.
8. The August/September applications and the subsequent attempt to appeal, itself bedevilled by procedural failures, added significantly to the delay. The prospective adopters had taken adoption leave and had prepared to begin their introductions and placement, and the circumstances were such that they considered carefully whether they could proceed. The alerting of the Local Authority to this application on 6^th January of this year has had a similar effect, save that they have now been successfully introduced to I and have expressed their complete commitment to him. This is, in fact, the third time that the plans have had to be put on hold because in September, when the initial application was made by the maternal uncle and the mother, the plans had to be delayed. Then from September to December, awaiting the appeal process, the appeal being filed late, there was further delay which prevented progression of the introductions. Then most recently, in January of this year, on the very eve of I expecting to be placed with them, again matters had to be delayed.
9. On any view, the Local Authority's plan, well described in the witness statement provided by Cheryl Preest, is one that is extremely well advanced and but for this application made on 22^nd January, I would in fact would have been anticipated to be placed with the prospective adopters last Saturday, 24^th January.
10. So, moving to the application, in order to be granted leave to apply to revoke a placement order under Section 24(2), it is necessary for the applicant, and of course, this father does have locus standi to make it by virtue of being a parent, to show that there has been a change of circumstances since the placement order was made. He here alleges two matters that he says amount to a change of circumstances. The first is that he has undergone a course for perpetrators of domestic abuse and now understands that what he did in the course of the marriage was wrong and has modified his behaviour accordingly. The second change is that he says that he has reconciled with the mother and that the pair of them are now living together in harmony such that he, and she also believes this, considers that they can offer I a permanent home with them where he will be safe and his needs met.
11. I remind myself that revocation of a placement order does not necessarily equate to reversion to a child living with its parents. Another arrangement short of adoption, that might enable I to have a continuing relationship with his birth family, could potentially meet his needs lifelong better than adoption. Consideration of a change of circumstances, however, requires consideration of the findings that were made at the time of the hearing.
12. The threshold in the care proceedings was contested and so it was necessary for findings to be made. They are set out in the judgment and of particular relevance to the issues before me is the fact that, first of all, in the face of the father having denied any violence by him on the mother, he was found to have been violent. It was his case that in fact the mother had been violent towards him. Next, he denied having inflicted any violence to the older children, justifying any use of physical force on them by reference to reasonable chastisement. In the event, the court found that there were instances of actual violence in which the two older children had suffered injuries properly categorised as non-accidental injuries. In the face of the mother having denied, initially, that the father had been violent towards her and accused the children of lying about being hurt by the father, very late in the process she accepted that he had been violent both to her and to the children. That played directly into issues of honesty which had bedevilled the work with the Local Authority. There were denials, in addition, and findings were made contrary to the denials, of emotional abuse and there was a finding of a long history of dishonesty, collusion, and deception. Ultimately, the court concluded that the father represented a significant and ongoing risk of physical and emotional harm exacerbated by his denial of wrongdoing.
13. Whilst the father did not appear to accept the findings at the time, he did not appeal them and at no time before this application that I have seen did he acknowledge the truth of the findings to the court or to the Local Authority. Thus, when he supported the mother at the hearing in September, he never disclosed to the court, which he did briefly address in answer to questions from me, that he now accepted the findings. Still less did he reveal the fact that he had apparently embarked upon a perpetrators' programme.
14. Having filed his application, I directed an urgent hearing in order to ensure that this hearing could take place promptly. In doing so, I had close regard to the judgment of the Court of Appeal in Re F (Placement Order) [2008] 2 FLR 550, which drew on the judgment of Butler-Sloss LJ in Re B (Minors) (Contact) [1994] 2 FLR 1 as to the procedure to be adopted. The Local Authority, it should be said, has behaved in an exemplary manner. Indeed, as can be seen in the judgment of the Court of Appeal in December 2014, it has arguably gone further than it needed to have done in exercising caution with the progression of the plans for adoption. It has demonstrated, it seems to the court, by the evidence of Cheryl Preest, that the plans could hardly be at a more advanced stage of preparation and none of that is in issue. Accordingly, it is clear, from both of the authorities that I have mentioned, that this court has a broad discretion to deal with these applications summarily on a reasonably limited evidential basis, hence the direction that both the Local Authority and the parents file statements, which they have done.
15. In his statement, the father says first that he resumed contact with the mother in December 2014 and began cohabiting with her earlier this month. He describes a loving, trusting, and mutually satisfying relationship in which they share tasks together, unlike the position before. Next, since April 2014, he has been on a perpetrators' programme in order to change his behaviour and his life and he says that it has helped him "…to realise how my previous behaviour was wrong and I am now a completely changed man." As a consequence of these two changes, he says that first he is determined to be a good father, husband, and citizen. Secondly, he understands the consequence of domestic abuse including verbal abuse. Thirdly, he places no element of control on his wife. Fourthly, and finally, he can offer his children a loving and happy life.
16. The mother has also filed a statement and confirms all that the father says and the beneficial effect that it has had on the children in contact. She reminds the court that, in 2013, she undertook the Freedom programme, a course for victims of domestic abuse, as well as a child care course. Although these are not new circumstances because they were before the court in the care proceedings, she points to the benefit of this alongside the change in the attitude of her husband.
17. On his behalf, Mr Duffy says that, as a result of the course he has undertaken, having re-explored the judgment and the criticisms that were made of him, the father now has insight into what went wrong and accepts that there was domestic abuse. He was asked to enlarge upon that because the statement that I have quoted from already appears to acknowledge the harm that arises from altercations and arguments and makes no reference to physical violence itself. Through Mr Duffy he has confirmed to the court that he accepts that there was, in fact, violence by him on the mother, albeit he does not accept the frequency or intensity of it. So far as the harm to the children was concerned, he maintains that that was chastisement. Nevertheless, these parents are reunited. They have both had the benefit of appropriate courses and are demonstrating insight. Having accepted the broad criticisms made by the court in 2013 of failure to engage, collaboration, and so on, he is now demonstrating insight and wants the opportunity to put the full case before the court.
18. On behalf of the Local Authority, Mr McCain reminded me of the delay principle and submitted that the change of circumstances advanced fell short of the nature and degree necessary to re-open the question, the test that is set out, of course, in Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069. In support of that submission, he points to the very long history of dysfunction, of the relatively recent change in circumstances, and the unlikely prospect of durable change, as well as the limited acceptance of the findings of the court in the context of the seriousness of those findings. He also points to the longstanding dysfunctional relationship between these parents and, in particular, the confusion, both before, during and after the final hearing, as to the status of the relationship between them and suggests that the proposal that the father advances is in fact one that carries a clear risk of harm. In the mother's case, having advocated on her own behalf, and that of her brother-in-law, the merits of permanent separation, within two months she was beginning a process of reuniting, which simply adds to the confusion.
19. Because of the seriousness of this, I gave Mr Duffy the opportunity to reply. In the event, the father asked if he could address me directly. It is right to say Mr Duffy had previously indicated that the father would like to give evidence but, for the reasons I have given, it seemed to me that there was no good reason not to follow the procedure that is referred to in Re F and deal with the matter summarily. Nevertheless, the father asked to address me directly in response to Mr McCain and I gave him that opportunity. Politely, respectfully, and movingly he said:

"After the final judgment, I willingly engaged in the perpetrators' programme. I regularly attended and I've nearly finished it, and I am deeply reflecting on it. I think I have changed deeply and know now what is family life with my wife and sharing trust. We are living together peacefully. There is no more violence. Please give us a chance to get our children."

20. Determination of this issue falls within the well established guidelines set out in the case of Re P (Adoption: Leave Provisions) and is a two-stage test. First of all, has there been a change in circumstances of a nature and degree sufficient to re-open the question that was determined at the conclusion of the care proceedings? Addressing that question straightaway, the changes that are alleged here are, in the context of this case and its history, really quite startling ones. No court could or would criticise a parent for undertaking a perpetrators' programme. It is obviously enormously to the father's credit that he has done so, but what is striking about it is that it appears to have been undertaken without any acknowledgement of the findings made to the court or other professionals and it begs the question as to what it is that the father accepts. The information that has been obtained from the programme is limited, but an email sent by a member of the team at the programme says that the father did indeed self-refer in January 2014 and engaged well:

"He acknowledged that his children witnessed and heard altercations between him and the mother, acknowledged the way he spoke to the mother was abusive, and challenged his own beliefs regarding abusive behaviours."

21. Absent is acceptance of any violence as such, whether towards the mother or, more particularly, towards the children. As I have already indicated, his statement was completely silent on that point and it was only when asked directly by me that he has accepted publicly that he was violent to the mother, albeit he denies that he was violent to the extent or degree that was found by the court on the evidence that it heard. Secondly, he denies that he was abusively violent to his children and continues to maintain that the behaviour considered by the court was in fact reasonable chastisement.
22. It seems to the court that both of these responses beg questions. It is not clear that the violence that he has accepted to this court was disclosed to the perpetrators' programme, certainly not apparent from the documents, but even if it was, it was limited and qualified and was not in acceptance that the findings of the court had been made. Secondly, his argument with regard to the children has not moved on at all. What he has said to the court, in the face of findings of non-accidental injury, is exactly what he said to the court 15 months ago. So, in those circumstances, I am afraid I really would struggle to accept that this constitutes a change of a nature and degree sufficient for the court to be able to act given the findings and the history.
23. As far as the resumption of the relationship is concerned, that too, it seems to the court, raises more questions than it answers. First of all, it throws what the mother said to the court at the final hearing and at the September 2014 hearing into doubt. The very thing that she prayed in aid as a positive factor in favour of that which she sought, namely separation, is now turned on its head with reconciliation being advanced as the positive. Secondly, whilst I accept that the father has done some useful work with regard to abuse, and that is new, the mother had done this work previously and that is not new, but how such a change has so suddenly been brought about is frankly not explained at all and does raise in the court's mind a suspicion of expediency. It is a reconciliation which is very recent. They only began cohabiting, apparently, earlier this month after overtures began in November and, given the very long and difficult history, it seems to the court that a prolonged period is likely to be required to establish that any resumption of the relationship is indeed durable or sustainable.
24. A further matter as it seems to the court that it raises is an additional question in relation to the issues of openness, honesty, and collaboration, as well as concealment from professionals. It was, throughout the run up to the final hearing, an issue that the Local Authority had and indeed the court ultimately went to make findings as to whether these parents were, in fact, separated and it has remained a source of confusion really from that time to the present as to the true status of the relationship. If, as the parents now say, they are reconciled, it is at a nascent or early stage. That may constitute a change, but if it is a change, it is potentially a very concerning one that would certainly require investigation over a significant period of time in order better to be understood.
25. Having mentioned time, I am afraid it is in short supply. Indeed, it could be argued that it has already run out. However, more importantly, it seems to be court that the resumption of the relationship between the parents as advanced to the court is not, either on its own or in conjunction with the work done on the perpetrators' programme, a positive change of a nature and degree sufficient to re-open the question previously determined. Indeed, the latter matter, the resumption of the relationship, may, on one view, be a negative change, but I certainly could not find that it is positive at this stage for the reasons I have given.
26. Even if I am wrong in relation to each of those separate changes advanced, the prospects to the court do not look to be solid, which is, of course, the second question that has to be determined under Re P. I say that because the change has come about so late, and it is so much, in the court's view, in its infancy that in a case where there has been massive delay to date and placement is at a highly advanced stage of preparation, it seems to the court that there would need to be very good prospects of success that would have to be found in answer to the welfare question, which lies within the second stage because, despite the benefits of remaining part of one's birth family which is, of course, an entirely laudable goal, the delay for I could not be justified unless it looked as though there were really good welfare reasons for preventing I's present plan from being advanced. There were and are, in the court's judgment, so many negatives against that overarching benefit of remaining part of the birth family that I could not so find that the prospects are solid in the circumstances.
27. This is, of course, desperately sad. One cannot, and I do not, criticise parents for seeking to care for their own child, but the court has to consider his position at this stage and despite all that has been said, I simply cannot find that there is sufficient merit existing to re-open the question determined in 2013 and to prevent, to use the language of Re F, those charged with implementing the decisions which have already been taken in relation to his welfare, and to do so without delay, implementing the plan that has been approved by the court.
28. Accordingly, the application that is made for leave to apply to revoke the placement order is refused. In the circumstances, I grant the Local Authority's application for an order under Section 24(5) and give it permission to place I for adoption subject to a stay until 1600 hours tomorrow, 28^th January 2015. If no notice of appeal with a request for a further stay is filed at the Court of Appeal by four o'clock tomorrow afternoon, marked for the attention of Tazeen Said, the stay will, at that point, be lifted and the Local Authority will be at liberty to act in accordance with the order that I have made in its favour.
[Judgment ends]