England and Wales Family Court Decisions (other Judges)

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Cite as: [2016] EWFC B108

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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 children and members of their family must be strictly preserved. All persons including representatives of the media must ensure that this condition is strictly complied with.

IN THE FAMILY COURT AT NOTTINGHAM CASE NO.: NG15C00199

BETWEEN: -

NOTTINGHAM CITY COUNCIL

Applicant

- and -

N.W. (Mother)

First Respondent

- and -

A.A. (Father)

Second Respondent

- and -

A, M, and L (children)

(Acting Through their Children's Guardian)

Third to Fifth Respondents

DISTRICT JUDGE HALE

APPROVED JUDGMENT

JUDGMENT GIVEN ON 25 ^TH May 2016

1. In this case I am concerned with the welfare of three sisters, A, L and M. The children are together in the same placement and have been so since 1 ^st May 2015.

2. The 1st and 2 ^nd Respondents are the Mother and Father of the children. The mother has been represented by Ms Farrington of Counsel and the father by Mr O Grady of Counsel.

3. The children's CAFCASS Guardian instructs her solicitor Ms Wimble.

4. The Local Authority represented by Ms Bramley seeks final care orders in respect of each child. The plan for these children is adoption as a sibling group and there are therefore Placement Applications for each child for me to consider. The Guardian is supportive of the Local Authority's case but conceded that the case is finely balanced. The parents are emphatically opposed to adoption and although they do not oppose care orders they argue that long term fostering is the correct outcome.

5. This case was scheduled to occupy two days of court time on the 5 ^th and 6 ^th of April. For practical reasons the case was unable to start on the 5 ^th but issues had been narrowed significantly by consent and in due course it was possible for the evidence to be heard in its entirety on the 6 ^th. Unfortunately, the narrowing of the issues and the consequent reduction in the amount of evidence to be considered has not made this case any less difficult from my point of view and it was not possible to hear submissions on the 6 ^th April in what is a uniquely challenging case.

6. I have now received written submissions from the advocates for which I am grateful. I take those submission into account fully as I do the documentary evidence in the bundle including the Guardian's reports, the written statements and exhibits and the oral evidence I heard from witnesses.

7. Those witnesses were :

The Manager of Fostering and Adoption team

The Independent Reviewing Officer.

The principal social worker for the children.

The children's Guardian.

8. Missing from that list of names are the parents. They did not give evidence, indeed the father was not present throughout the case. The parents have both accepted realistically that the statutory threshold under Section 31 of the Children Act for the making of a care order or supervision order is satisfied. There is no active opposition to the making of care orders in this case and furthermore it is also accepted by the parents, no doubt with considerable pain and regret that the children cannot be expected to return to the care of either parent at the conclusion of this case or in the short term.

9. I do not propose in the circumstances to dwell on the detail of the background facts that led to the involvement of the Nottingham City Council with this family. Those facts are set out in the statements of evidence in the hearing bundle. I merely observe that for a significant period of time these children were living in appalling conditions in a household where the father was concerned in the possession and supply of Class A drugs. When Police officers executed a search warrant they found not only drugs in significant quantities but conditions of squalor. In the light of the parents concessions I spare them any further reference to the facts. In any event there is an agreed document setting out the matters that collectively satisfy the threshold test.

10. The father is awaiting sentencing for drugs offences child neglect and causing unnecessary suffering to two dogs. The mother awaits sentencing for child neglect and animal cruelty. It is highly likely that the father will receive a substantial prison sentence. The mother's position is less clear. Both have been evicted from the family home.

11. The City Council has discharged its duty to investigate the possibility of a placement of the girls within the wider family. Sadly no suitable placement good enough for the children has been identified. The situation with which I am confronted is such that the choice to be made is between adoption and long term fostering and all parties are agreed that those are the options. Expressing the matter in that way makes the matter appear at first sight to be straightforward. Nothing could be further from the truth. There are particular features about this case and about the circumstances of the children that create irreconcilable difficulties such that there is sadly no ideal outcome.

12. The first matter of significance is the fact that all parties and all professionals concerned with the welfare of these children agree that they should not be separated from each other. All three children have a close and loving bond with each other that has become stronger throughout these proceedings and I agree that it would be harmful to their emotional well-being if those bonds were weakened or severed, particularly in the factual context of this case. Where children are coming to terms with their removal from the care of their parents, the supportive relationships they have with each other are of the utmost importance.

13. The second matter is derived from the first, in that the finding of suitable adopters for the children is made more difficult where we are dealing with three children as a group and where the ages range from four to eleven. The varying needs and personalities of the children also make it difficult to contemplate a placement that could meet all of those needs. In this case the eldest girl is apparently wiser and more perceptive than her years would suggest. She has been emphatic about her opposition to adoption, at times being wholly unwilling to discuss the matter. She has through the Guardian written a letter to me in very robust terms stating that I would be not be doing my job properly if I placed her and her sisters for adoption. The middle child is L who it, appears from the Guardian's report, would appear to be the most emotionally needy of the three and would have more to gain from the security and permanence that goes with adoption. The youngest girl might reasonably be expected to adapt more easily to adoption and to have most to lose from a lifetime in foster care. The guardian's evidence is that of the three she shows least sign of any emotional anxiety. Those matters taken together demonstrate that there is no one size fits all solution to the welfare needs of these children but the matter does not end there.

14. A third complicating factor in the case and one which will potentially further reduce the likely pool of potential adopters for these three girls is the fact that the plan for them at least as it is now formulated, is that they should maintain their link with the birth family by way of an "open" adoption with direct contact with the birth family twice a year. This represents a change from the original plan approved by the Independent Reviewing Officer, which was what might be described as a "conventional adoption" with all direct links with the birth family being severed.

15. For many years open adoption has been far from the norm and even with the collective experience of the professionals concerned none could refer to any significant relevant experience of such an arrangement. The applicant Council appears to recognise, if reluctantly, the difficulty that these various factors create for the search for adopters. This is perhaps evidenced by the fact that the care plan is to continue the search for twelve months before defaulting to long term fostering as the only available option. That would mean that the eldest child might be at or close to her 12 ^th birthday before a suitable adopter might be found. This fact has created yet another troubling issue in an already difficult case. A particular concern of the Guardian, which I also share is the fact that these children have already been in the care system for nearly a year already and what is proposed is a further twelve months of delay. The Guardian disagrees with that timescale and her advice is that the children need to have their situation resolved sooner than that. She recommended a twin-track approach to the search for both a long term fostering placement and adoption in order to avoid delay. Moreover she stated quite clearly that while she is generally supportive of the adoption plan in principle she cannot support the care plan unless the search time is limited to six months. She was shocked and disappointed as was I to hear from the principal social worker that she understood that the plan was only to commence a search for a long term foster placement after the adoption option search had been completed and that the inherent difficulties would require a twelve month period to enhance the prospects of finding a suitable adoptive family.

16. The position of the parties can be summarised as follows: the parents are vehemently opposed to adoption and ideally would hope for the children to return to the care of one or both of them in due course. Maintaining meaningful and regular contact with the children is an imperative for the parents and for practical purposes they say this is most likely to be achieved within an arrangement of long term fostering. Both would be content if contact arrangements were reduced to but were to continue at a frequency of once per month.

17. The Guardian believes that the benefits to the children of adoption in view of the security and permanence it brings will outweigh the potential emotional upset that will attend it but only if acceptable arrangements are put in place to allow the children to see their parents and other family members not less than twice a year, thus recognising the strong desire of the older two in particular to remain in real and tangible contact with the family. As for arrangements for contact she would regard once per month as appropriate in a long-term fostering placement but only twice per year if the children are adopted. The principal reason for not starting the case on day one was the guardian's concern that the principal social worker envisioned contact being maintained by way of internet connection via Skype or Facetime rather than tangible physical interaction.

18. In carrying out the welfare evaluation, the court's paramount consideration is the welfare of the children and in determining where their best interests lie the court has to have regard to the welfare checklist in s 1(3) of the Children Act 1989 and, where, as here there is a placement application, the welfare checklist in s 1(4) of the Adoption and Children Act 2002. As the plan includes proposals for permanency outside the family, it is necessary to go back to first principles which the judge must always have in mind at every stage of the process: Re B-S [2013] EWCA Civ 1146 ; Re K v London Borough of Brent and others {2013] EWCA Civ 926 ; Re P (A Child) [2013] EWCA Civ 963 , Re G ( A Child) [2013) EWCA 695 and In the matter of Re W (A Child) [2013] EWCA civ 1227.

19. The starting point is Article 8 of the European Convention, the right to respect for private and family life. The overarching principle is, as explained by Hale LJ ( as she then was) in Re C and B [2001] 1 FLR 611, para 34:

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

'Necessity' sets a stringent and demanding test, as was spelt out by the Supreme Court in In the matter of B (A Child)(Care Proceedings) [2013] UKSC 33. Care orders or orders contemplating non-consensual adoption are 'a very extreme thing, a last resort, only to be made where nothing else will do and to be made only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare.'

18. Three important points were emphasised by Lord Neuberger in Re B

(i) Although the child's interests 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.

(ii) The court must consider all of the options before coming to a decision and it is, therefore, necessary to explore and attempt alternative solutions.

19. No one argues that a return of the children to the mother or father is a realistic possibility in this case, at least not as matters currently stand. That is in my judgement a correct analysis of the circumstances of this case. In relation to A, L and M, whilst taking full account of the enormous benefits for a child in being brought up by one of their birth parents, I have evaluated as too high the risk of significant harm were they to be returned to their care. Even were they to be placed with their parents under the auspices of a care order, the package of protection which the sharing of parental responsibility would bring would not, in my judgment, be sufficient to safeguard them from the deficits in either parents' parenting.

20. When it comes to considering the alternatives however it is not enough for the L.A. or the Guardian or for that matter the court simply to be satisfied that a child would be better off being adopted. In determining the best placement option for the child, a critical global evaluation that assesses the benefits and detriments of each option for placement must be undertaken. In particular the nature and extent of the risk of harm involved in each option must be considered.

21. In considering all the options, the court should adopt the least interventionist approach: Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760; the 'no order' principle encapsulating the Strasbourg principle of proportionality. In the matter of W (A Child) {2013] EWCA Civ 1227 Ryder LJ said that the court must evaluate:

(a) What is the welfare analysis of each of the placement options that are available ?

(b) What is the welfare evaluation as to the best option among those available ? and

22. There are no other family members who can care for girls to the standard that they require and deserve. Viability assessments of extended family members were undertaken but, unfortunately, all proved negative and no family member has sought to challenge the assessments. The overriding necessity encapsulated in the welfare evaluation, therefore, drives the court to consider placements outside the family. The permanency options are long term fostering or adoption.

23. This leads the court to consider the material differences between fostering and adoption as was recognised by the Court of Appeal in Re V (Children) [2013] EWCA civ 913.

a. Foster care is a less interventionist option in that it falls short of severing the legal ties of the birth family and is more likely to provide a vehicle for maintaining contact with the natural family. Where a child is in the care of the local authority, the starting point is that the local authority is obliged to allow reasonable contact with the parents under s 34 of the Children Act 1989. Once an adoption order is made, the natural parents generally need leave. Whilst parents may apply for the discharge of the care order with a view to getting the child back, once an adoption order is made, it is made for all time.

b. Adoption, however, makes the child a permanent part of the adoptive family to which she fully belongs throughout her life. To the child, therefore, adoption is likely to 'feel' different from fostering. Adoptions do fail but generally the commitment of the adoptive family is of a different nature to that of a local authority foster carer, whose commitment may change over time. Routine life is different for the adopted child once he or she is adopted, as the local authority has no further role in the child's life. This frees the child from statutory intrusions.

24. For these children, adoption has the disadvantages of severing legal ties with the parents and at worst terminating or at best drastically reducing direct contact with the birth family from that which they have got used to and which is of importance to them. That brings with it implications for their senses of identity and the potential for long term emotional and psychological harm. On the other hand, in theory at least, adoption brings the advantages, first and foremost, of a permanent family of which the children would become full members throughout their lives and, secondly, freedom from statutory intrusion in their lives.

25. Ms Wimble for the Guardian has emphasised that the Guardian has concerns about the children remaining in long term foster care under final Care Orders. It is the Guardian's view that the children already struggle with being "looked after children". A, and to a lesser extent, L struggle with professional visits. A does not like to feel different from her peers and visits from professionals are a reminder for her that she is "in care". The foster carer has confirmed to the Guardian that the girls can be unsettled following visits from the Social Worker and the Guardian. I take those matters into account as I do all of Ms Wimble's submissions. Their focus is on persuading me that in what she describes as "a finely balanced case", the balance should come down in favour of adoption although I am urged to invite the applicant to revise the care plans in relation to the period over which a search for adopters would be carried out.

26. In her written submissions Ms. Bramley for the Local Authority has recognised the deficiencies in the presentation of the local applicant's case and the way in which the oral evidence was given. She has made a commendable attempt at explaining some of the shortcomings and has put the case for adoption as attractively as she could have. For reasons that will become clear in due course I am not satisfied that such gaps in the evidence or the evaluation of the pros and cons were satisfactorily plugged by the Guardian's evidence.

27. In my judgment, the balancing exercise in this case comes down in favour of making a care order with a plan of long term fostering. This on my welfare evaluation is inevitably an imperfect outcome but is still the best option for permanency. I think that the Applicant's commitment to a plan for Adoption owes more to hope than to expectation and is unrealistic. In what is on any view a difficult and challenging case I do not wish this judgement to be perceived as little more than a vehicle of criticism of the Local authority's social workers. However I am bound to observe that the degree of careful analysis demanded of social workers and emphasised in Re B-S and all cases since is conspicuously lacking.

28. There was :

a. No identification or analysis of the importance of the decision needing to be necessary and a last resort where nothing else will do;

b. No identification or analysis that the decision being made is one to be reached in light of the child's welfare 'throughout her life';

c. No express reference that A was opposed to adoption, let alone deeply opposed but only a short statement that the children wanted to remain with their parents.

d. No analysis of the emotional and psychological impact on the placing of A for adoption against her clear wishes;

e. No analysis of the impact on each of the children individually of placing them for 'closed' adoption when that was the original plan.

f. No identification or analysis of any short, medium or long-term emotional harm resulting from adoption whether that be 'closed' or 'open';

g. No identification or analysis of the impact on each of the children's identity of being placed for adoption whilst continuing to have direct contact with their birth parents;

h. No analysis of the impact on each of the children's short to long-term welfare of delay caused by a 12 months' search for an adoptive placement;

i. No analysis of the impact on each of the children of the work to 'prepare' them for adoption;

j. No identification or analysis of the risk or impact on the children of rejection if they are not placed;

k. No identification of any risk of adoptive placement breakdown or any realistic analysis of the prospects of finding a placement within a reasonable time frame.

l. No analysis of the impact on each of the children (throughout their lives) of adoptive placement breakdown, which would be a second parental relationship failure;

m. No identification or analysis of the effects on the children that the breakdown of an adoptive placement or a foster care placement would have for them.

29. Mr O'Grady is correct when he submits that none of these matters were identified as advantages or disadvantages so as to enable a proper comparison of adoption on the one hand and foster care on the other. Moreover, that much was conceded by the Principal Social Worker in cross-examination. It should be obvious that if the analysis is not apparent in the written evidence, the parents, the children and the court cannot be reassured that the analysis has been undertaken at all. In Re B-S the court was critical and disapproving of what was described as the linear approach to the welfare analysis. In other words an approach where particular options were considered in isolation and ruled out so as to leave adoption as the one remaining option was and is now held to be a flawed approach. It appears to me that the approach to this case by the local authority and albeit it to a lesser degree the Guardian fall into error in that regard. It is undoubtedly the case that to her credit the Guardian carried out a more thorough analysis in order to address the shortcomings in the social worker's evidence. She undertakes this exercise at page 12 to 16 of her final report. However the overriding impression I have formed in the course of the evidence is that the applicant and the Guardian have started from the presumption that adoption is bound to be a better option than long term fostering and that the children deserve the chance of having a forever family however unlikely that outcome may be. As Mr O Grady puts it the case in favour of adoption is a forcefully emotive narrative along the lines:

"Surely adoption is worth trying so the children do not languish in foster care and isn't it worth giving the children a chance to have a forever family?" he is correct to say that "anyone advancing the argument would not be human if these emotive questions did not operate heavily on the their decision making"

30. The children as individuals undoubtedly have more to lose than to gain by being separated from each other. From the point of the potential adopter they come as a complete package and will be very difficult to place. A's age and consistent opposition to adoption make a satisfactory and permanent placement all but impossible. To those who might believe that I am wrong to deny the girls the chance of a forever family I would simply say that the prospect of a successful search for an adopter in the context of the unique combination of facts in this case is so unlikely as to be capable of being discounted. I am sorry to say that the evidence of the Fostering and Adoption team manager did nothing to reassure me that there was any real possibility of finding an adoptive placement whether that be in six or twelve months or at all. That said it must still feature in my welfare evaluation lest I too should fall into the error that Re B-S counsels against.

31. In carrying out that evaluation with the welfare checklists in mind :

(i) A is of an age and understanding for her wishes and feelings to be a powerful factor. I was wholly unconvinced by the social workers evidence that A's attitude to adoption might be softening. She had no direct evidence of this but was inferring from what she had been told by the foster carer. There is a material difference between a situation where a child changes her mind about a placement proposal and one where she becomes reluctantly resigned to it as inevitable after a lengthy period of vociferous opposition. I am not persuaded that A actually has become resigned to adoption as inevitable on the evidence of one conversation with the foster carer.

(ii) L is of an age and maturity where she is able to articulate her feelings but these have fluctuated. The Guardian observes in her report that L is particularly emotionally vulnerable and at times has been highly distressed due to the confusion and uncertainty about her future and her desire to retain her links with the birth family. The Guardian expresses cautious optimism that L could cope with adoption with the important (and I would add) unlikely proviso that adoption in principle would have to be accepted by the family and in particular the older sister. L is clear about her desire to remain with her sisters and to maintain a link with the birth family but her views about adoption or foster care are not sufficiently clear to have any strong evidential value. M is not of an age or maturity for any ascertainable wishes or feelings to be compelling.

(iii) As to the children's particular needs, they ideally require a permanent and settled home which provides a safe and secure environment which meeting all of their physical and emotional needs and which will enable them to achieve their full potential as individuals physically, emotionally, educationally, psychologically and socially. Any further delay in achieving that will be inimical to their welfare interests. To that extent I agree with the Guardian that a plan involving a further delay of twelve months cannot be approved.

(iv) There would be lifelong losses resulting from them ceasing to be a members of the original family and becoming adopted persons including the impact upon sense of identity and self esteem. The Guardian has shared her "grave concerns about A's capacity to form a meaningful relationship with an adoptive family" She has also stated that both A and L's strong loyalty and family identity is likely to compromise the future stability of an adoptive placement.

(v) Furthermore, I am not convinced that the degree of attachment to the parents and to the paternal aunt and the need for contact can be met adequately by contact twice per year. The importance of the children's relationship with the birth family and the need to maintain that connection is evidenced by the fact that the Guardian and the Local Authority propose ongoing contact within an adoptive placement.

(vi) Of course in principal adoption brings the advantage of life long committed and enduring relationships with the prospective family members. But those potential benefits have to be looked at in the light of the parents' and A's opposition to adoption and the already strongly established attachment between the children and their parents and the paternal aunt. There are numerous references to A's feelings throughout the Guardian's report and Mr O'Grady has helpfully highlighted them in paragraph 29 a-g of his written submissions. In all likelihood A remains opposed to adoption and I accept Mr O Grady's submission that there is a significant risk that A will reject her new parents. I am reinforced in that view having heard the evidence of the social worker that she had tried to assuage A's opposition to the concept of a new forever family by telling A that calling her adoptive parents Mum and Dad would be optional and that the 1 ^st and 2 ^nd respondents would always be her Mum and Dad. It is self evident that such an approach is entirely at odds with the legal and practical lifelong effect of adoption whereby the child ceases to be the child of the birth parent for all time.

(vii) I have reached the firm conclusion that the undoubted potential advantages to the children of adoption in the sense of security, permanence and the freedom from social care involvement are outweighed by the disadvantages that attend it namely :

• The likelihood that A and possibly also L will struggle to accept a replacement family and have to go through life with the emotional and psychological burden that goes with it.

• The improbability of finding an adoptive placement and the consequential emotional harm brought about by the feeling of rejection.

• The real risk of a breakdown of the adoption and the psychological harm that would be brought about.

• The lessening of the emotional ties with the birth family which would not be adequately safeguarded against by twice yearly contact.

• The prolonging of the insecurity and confusion of the children's current predicament that would go with a lengthy search for an adopter.

(viii) The disadvantages to the children of being in long term foster care are outweighed by the advantage to them of being able to enjoy regular and meaningful contact with the birth family at a frequency commended by the Guardian, by the fact that it will be likely that experienced foster carers will be found who are used to dealing with sibling groups and facilitating contact and by the fact that the children will have their emotional and physical needs met whilst at the same time feeling part of the birth family.

32. It is also necessary for me to have in mind the likelihood or otherwise of finding an adoptive placement when weighing the pros and cons of adoption as against long term fostering. The argument against denying the children the chance of a forever family loses much of its emotive force when one stands back and honestly and dispassionately considers the chances of finding a forever family within any reasonable time frame. To put it bluntly the loss of a slim chance is hardly a loss at all.

33. Weighing and balancing the welfare factors, I have been driven to the conclusion that the overriding requirements of the welfare of A, L and M, first, justify intervention in the family and the separation of them from their parents and, secondly, render solutions which enable them to be brought up by their natural parents impossible. However the applicant Council has not persuaded me that this is a case where adoption is necessary or proportionate. Moreover in the course of her evidence the Guardian herself conceded that in her analysis foster care would probably "do for these children but that it was not the best option". As I have already pointed out that is an understandable and instinctive emotional response but it is not the law. I agree with Mr O'Grady and Ms Farrington that the balance of the evidence shows not only that adoption would not be the necessary option but it would be the wrong outcome for the children.

34. I cannot in any event approve the care plan, which envisages a further twelve months delay, which in my judgement and that of the Guardian is incompatible with the children's welfare. The Guardian's proposed six month period to find adopters is too short but on her careful analysis at page E80 to E81 of the bundle I am satisfied that 12 months cannot be justified. The consequences for A are significant. A is on the brink of starting secondary school. In the unlikely event of an adoptive placement being found towards the end of a twelve month search she is likely to have to move schools and face the emotional upheaval of resettling with new teachers and trying to integrate into new peer groups. That would be damaging to her emotional wellbeing. Sadly, I have reached the conclusion that the applicant authority has failed to give any sufficient consideration to the undesirability of delay for the children. That can be the only explanation for the applicant telling me through the social worker that it was not intending to pursue twin tracking and not to look for long term fostering placements alongside potential adopters notwithstanding that this was a clear and principled recommendation of the Guardian.

35. I turn now to the issue of arrangements for the children to spend time with their parents. The applicant through the principal social worker and the IRO remain wedded to the plan for contact twice yearly even if the children remain in foster care. I have not been satisfied that there is any sound basis for this serious reduction in the children's contact with the parents. Furthermore I have been left with the feeling that the local authority has from the outset and throughout seriously underestimated the importance of the children continuing to see their parents regularly. In all the circumstances I am satisfied that it is better for the welfare of the children to make an order under Section 34 of the Children Act than to make no order. It is not appropriate to make final orders today until the applicant has considered this judgement and been given an opportunity to amend the care plans. I shall hear brief submissions as to further listing of this case.