England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE –UPON-TYNE


IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: A (A CHILD)

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		9th December 2016

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

1. The court is concerned with the welfare of A, a girl born on 19^th November 2014 and so she has just had her 2^nd birthday. She is the second daughter of M who was born in 1989 and so is 27, and the daughter of F who does not have parental responsibility in respect of A who was born in 1990 and so is 26. South Tyneside Council on 12^th July 2016 issued an application seeking a care order in respect of A. The issue of proceedings coincided with A going to live with her maternal grandmother, MGM, on the discovery of the ongoing relationship between the mother and father, concerns about which I will come to in a moment.
2. A has lived with her maternal grandmother ever since. Very sadly in the circumstances that the local authority cannot recommend that A return to the care of either of her parents, she is unable to remain living with her maternal grandmother and in those circumstances, the local authority seeks not only a care order but a placement order in order to place A for adoption.
3. Why does the local authority then assert that A was suffering or likely to suffer significant harm and that the harm or its likelihood was because she was not receiving care that would be reasonably expected from a parent?
4. The story really predates A's birth in that in the months shortly before she was born in May and June of 2014, A's older half-sister, B, 6 years old was both physically and emotionally abused in her mother's care at the hands particularly of F, who is of course A's father. As a consequence of that abuse, the mother agreed to separate from F but in the period following, numerous pieces of information came to the attention of the local authority suggesting that this couple was back together in a relationship.
5. In short, numerous opportunities were given to the mother to enable her to demonstrate that she could prioritise A over her need to have a relationship with F. Sadly she failed to do so by continuing the relationship with him. It was in fact the disclosure of some photographs on 11^th July by the maternal grandmother showing F with A that was the ultimate precipitating event and, having consistently denied that A had had any contact with her father, confronted with the photographs, she handed over her daughter to her own mother, the maternal grandmother.
6. Proceedings were issued when the mother did not sign an agreement pursuant to section 20 of the Children Act 1989. She declined to take legal advice. There was concern that the family placement with the maternal grandmother lacked any legal basis or stability and that threats had been made to remove A, hence the proceedings were issued. The threshold at issue, shortly, was concerned with the mother's failure to be open and honest regarding her relationship with F, concerns regarding her alcohol misuse, a failure on her part, despite ongoing support, to be able to protect herself from the risk posed by F: in particular, there was a recent photograph that showed the mother extensively bruised to her face as a consequence of his violence. At that stage, each of the parents had been charged with a number of counts of child neglect in relation to B.
7. In response to that threshold, at the outset the mother accepted that she had not been open and honest. She accepted that she had not protected herself from F and also the fact that she had been charged with offences of child neglect. However, in other respects the threshold was denied. It was a matter of particular concern when the matter came before me at the issues resolution hearing that it did not in fact raise as a specific issue of threshold the injuries suffered by B. That has now been addressed as I will come to.
8. Despite extensive efforts to engage F in this litigation, he has, I am satisfied, resolutely refused to do so. He was served with papers, including the revised threshold, following the hearing last month and he plainly has no intention of involving himself in this case at all. The social worker, SW, carried out a parenting assessment of the mother which she completed on 14^th October. It is a comprehensive document, it concluded that the mother had a number of positive attributes: she was able to meet most of A's basic care needs, indeed those of B as well. She described A as a happy, contented toddler with positive attachments to her mother and grandmother that in turn reflected the good basic care that she had received up until that time.
9. The mother was herself described as very friendly, a likeable young woman who was easy to get along with. However, the assessment also revealed that this mother has been serially dishonest about her relationship with F, has minimised the harm that he caused to B and herself accepted no responsibility for any part in that, all of which together evidenced a failure on her part to keep B and indeed A safe, B of course having suffered very significant physical harm in her care.
10. That harm is self-evident from the fracture to B's shoulder and the extensive bruising to her face, neck, cheek, jaw, temple, back and bottom, 27 areas of bruising in all described in the police disclosure that is now to hand and shown in the really distressing photographs of B taken at the time. B has lived with her birth father ever since she was injured. As a direct consequence of that fact she has, as I understand it, no contact with her mother. Without recognition of the risk to A, the mother has therefore been assessed as unable to protect her and prioritise her needs.
11. The mother's evidence was contained in a witness statement that she filed ahead of the issues resolution hearing. In short she indicated that A is her priority and that as such she expressed an intention to protect and safeguard her from her father who, she said, would not be permitted any unsupervised contact. A particular concern for her was the relationship between B which she described as a strong one, and one that she would very much wish to be permitted to continue.
12. Accepting past violence towards her at the hands of F, she said that she had taken precautions such as the installation of a panic alarm in her home, as well as pointing to the work that F has himself done with the Probation Service. Nevertheless, she confirmed openly that the relationship persists. When listed for issues resolution hearing, a number of things were apparent. As I have indicated, despite the centrality of the injuries to B, there had been no police disclosure. That has now been remedied and the threshold has been revised with the injuries set out in detail which I will not repeat here as I have already summarised them.. It has recently come to the attention of the local authority that the Crown Prosecution Service is not going to prosecute. The reasons for that are said to be due to the wish not to avoid B in any prosecution and, whilst that reluctance is understood it is, perhaps, a surprising decision.
13. That said, this court is quite satisfied first of all as to the extent of the injury and as to the acceptance by the mother that they were inflicted by F. The second matter was the concern already mentioned, about the efforts to engage the father. There was a concern up until then that they perhaps had not been as comprehensive as they might have been. That, again, the court is quite satisfied has been remedied and, as at the issues resolution hearing, the guardian had not filed her report. She has done so now and I have seen the combined care and placement report that she has prepared.
14. The final matter, and in some ways the most important, at the issues resolution hearing the mother indicated via her counsel that whilst she was not consenting to the making of orders in respect of A, she did not actively oppose them. As I discussed with Mr Gow today, she was plainly very distressed on that occasion. It appeared to the court to be a decision of recent making and, given the other difficulties that the court considered lay in the way to finalising the matter then, it was appropriate to adjourn it to allow a period of reflection as well as addressing the outstanding matters.
15. Since then, there have been these developments. The mother, again, indicated to the social worker that she would like her father, MGF, to be assessed by the local authority as an alternative carer for A. He was the subject of a screening assessment in August. In the course of that, and exploring his understanding of the concerns, he said he felt that his daughter had been a good mother before she met the father. It was his belief then that she had severed all ties with F, albeit he did say that if that was not the case that would end his relationship with her.
16. He went on to say that if A could not be returned to her mother's care, she would be best placed with her grandmother where she presently is and he would be able to offer support. At no time did he offer to care for A himself and, pressed about that, he pointed to the unsuitability of his house at the present time as well as the need to discuss matters with his partner. Despite being appropriately chased, there was no response in respect of that and the social work analysis was that he had been evasive and, whilst upset at the prospect that A could be adopted, was not really actively putting himself forwards to care for A.
17. That said, the social worker kept an open mind about him and made it plain that, if he changed his mind, it would be possible to carry out some further screening on the local authority being satisfied that he had a serious intention to take over this role. Having been notified by the mother that she wished him to be assessed again, he was spoken to on 23^rd November. The situation was really no different. He was very evasive, he was not in a position to care immediately, albeit hoped that his former wife would be able to do so until he could, but also needed to speak to his partner. He never returned to the local authority: in fact his partner was spoken to on 7^th December in the course of which she said that she had not spoken to him for over two weeks having told him that she is not in a position to support him to care for A.
18. In the circumstances, it does not, sadly, appear that MGF is really in any better position than he was when assessed in August and it does not seem to the court that at this eleventh hour, that there is any realistic prospect of him being considered as a carer, however much upsetting it may be for him to know that his granddaughter is likely to be adopted.
19. Secondly, the mother has responded to the amended threshold in which she accepts that B was injured, accepts that B suffered multiple injuries on 18^th July and indeed, an earlier injury in May. Her acceptance that B was in her care at the time is qualified by the fact that at the time of the injuries on 24^th July, she was not physically in her care at the time that the injuries were in fact inflicted. She concedes that the injuries were significant inflicted injuries in each case but she felt unable to comment on the assertion that F had inflicted them. That plainly caused the local authority concern.
20. I am indebted to Mr Gow for taking specific instructions this morning, particularly in the light of the mother's acceptance before the court at the issues resolution hearing that he had been responsible for the injuries, and she now confirms that that is her position in relation to that. It really would appear that in the circumstances then, there is full acceptance that he was indeed responsible for these serious injuries. Other matters follow which are not accepted and in the circumstances, I do not propose to refer to. There is evidence that would support the allegations at 11, 12 and 13 but it would not be proportionate to pursue them separately.
21. M accepts that she had failed to protect B from F. She also accepts that she has continued to pursue the relationship with him despite B being removed from her care. She accepts her dishonesty in concealing the relationship from the local authority. The fact that F has an extensive criminal history, although she says it is a matter for F to answer, is in fact a matter of record. She accepts that the relationship that she has with F is a volatile one and that, despite this, it continues. Indeed, as recently as 30^th November it is a matter of report that following an incident between her and him, she activated the alarm.
22. F, as I said, has failed to respond. In short, he remains an unassessed risk as a consequence of his known history of violence and domestic abuse.
23. That therefore is the evidence. The local authority says, quite simply, that in the circumstances it is not possible for A safely to be placed in the care of her mother by virtue of her failure to protect her thus far, the findings plainly being directly relevant to that issue. There is no alternative family member who is ready, willing, available and suitable to care for A and in the circumstances, given her age, the only realistic alternative that meets her needs is one of adoption, a course that is supported by A's guardian, Joanne Scott.
24. Care proceedings of course involve two principal questions. First are the threshold for making a care order under section 31 of the Children Act satisfied, and secondly, if so, what order should the court make? Section 31(2) provides that a court may only make a care order or a supervision order if it is satisfied (a) that the child concerned is suffering or likely to suffer significant harm, and (b) that the harm or the likelihood of harm is attributable to the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him.
25. In this case, it is not in reality disputed that the threshold criteria under section 31 are satisfied. The acceptance of the fact of F having inflicted grievous injuries on A's older sister and the mother's continued relationship with that man, really put them completely beyond argument. Accordingly, the court needs to concentrate on the second question, what order should it make? In answering that question, it is necessary to apply well-established legal principles. I bear in mind the rights of the mother and A under article 8 of the European Convention to respect the family and private life. Under section 1 of the Children Act, A's welfare is the court's paramount consideration in the care proceedings. Any delay in making decisions concerning her future is likely to prejudice her welfare. That section provides a checklist of factors to be taken into account when determining where A's welfare lies and what order should be made. In this case, the particularly important elements are A's needs, the capacity of her mother to meet those needs, her background and any harm that she is at risk of suffering.
26. On the application for a placement order, the court must apply section 1 of the Adoption & Children Act 2002. Again, the paramount consideration of a court is A's welfare throughout her life and delay is likely to prejudice her welfare. There is a separate checklist of factors to be taken into account and the important factors in A's case are the likely effect on her, throughout her life, of having ceased to be a member of her birth family and becoming an adopted person, her background, any harm that she is at risk of suffering, her relationship with her birth relatives, in particular with her birth mother and her half-sister, and the value of those relationships continuing as well as the mother's ability and willingness to provide her with a secure environment and meet her needs.
27. The court cannot make a placement order unless satisfied that the parent has consented to the child being placed for adoption, or that their consent be dispensed with. In this case M does not consent but does not actively oppose. In the circumstances, under section 52 of the 2002 Act, the court has available to it the power to dispense with her consent if satisfied that A's welfare requires that consent be dispensed with.
28. The statutory provisions to which I have referred have of course been the subject of considerable analysis by higher courts in recent times. I particularly mention Re B (A Child) [2013] UKSC 33 in the Supreme Court, followed by the leading case of Re B-S (Children) [2013] EWCA Civ 1146 in the Court of Appeal as well as others that have followed. I have those decisions very much in mind throughout consideration of A's case. In Re B the Supreme Court reiterated that the test for severing a relationship between a parent and child is very strict so that in the words of Baroness Hale, it should occur only in "exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do".
29. As Lord Neuberger observed in the same case, making a child subject to such an order should be a last resort where no other course was possible in her interests. That was reinforced by the President of the Family Division in Re B-S, emphasising that the statutory language imposed a stringent test and that what must be shown was that the child's welfare required parental consent to adoption to be dispensed with.
30. In addition, the President identified the two essential things required before a court can approve such a care plan. First, the provision of proper evidence both from the local authority and the guardian, addressing all the options which are realistically possible and containing an analysis of the arguments for and against each option. The second matter is the necessity for an adequately reasoned judgment citing that approval, what was said in Re G (A Child) [2013] EWCA Civ 965 about the need for a global holistic evaluation of each of the options available for a child's welfare, before deciding which option best meets the duty to afford paramount consideration to the child's welfare.
31. In this case, sadly, there is really only one realistic option at the end of this process, the mother having indicated her position to the court and having failed to attend this final hearing in the light of the decision that she has made. I should say, for the avoidance of doubt, that nobody has suggested that this is a case where a long-term arrangement short of adoption would be an appropriate one. If she could have remained with her grandmother, then that plainly would have been an attractive option. That is not however available. There is no other family member, as I have indicated, who can care for A in the long-term and nobody has suggested that it would be appropriate for A to be made the subject of a plan of long-term fostering given the many years of her minority that lie ahead.
32. Thus, the option is, I am afraid, a stark one and it is really not necessary to go into any detail beyond the court indicating that this is one of those exceptional cases where it can properly be said that nothing else will do. That does of course come with advantages and disadvantages. The positives of a placement order and subsequent adoption, it would be the high probability that A's emotional and physical needs would be fully met in an adoptive placement, that she would be placed with carers who would have been comprehensively assessed as having the capacity to look after a child and specifically matched as suitable to meet A's needs.
33. There is really no likelihood that she would suffer significant harm in the care of such a person and as a consequence of being provided with a stable and consistent care environment, she would have the opportunity to lead a normal life free from interference by statutory bodies with the consequence that she would have a good chance of developing into a balanced and emotionally stable person. Although she has now had her second birthday, I hope that the otherwise relatively good start that she has had to her life will enable her to manage the transition from foster care to adoption without suffering undue emotional harm.
34. The disadvantages are plain though. She will lose the direct relationship with her mother, with whom she is assessed as having a good attachment. She would lose the potential of relationships with other family members, particularly her father should he manage to address his issues and show an interest in her. Of greatest concern to the court is the relationship that she has with her half-sibling, B, a matter of importance to her mother particularly. I will deal with that in a moment because it is certainly hoped that it may be possible in due course to introduce the idea to prospective adopters of some form of limited sibling contact taking place.
35. She will also lose her sense of identity as a member of her birth family, and her sense of identity is an important part of the development of a child. Without being unduly negative, although most adoptions are successful, a not insignificant number do break down bringing with them the likelihood, indeed the inevitability of further harm to the child. I am reminded that adoption should only be considered where absolutely necessary and in the child's best interests but the firm recommendation is that I make such an order.
36. In the court's judgment, this case does fully comply with the requirements identified by the Supreme Court and the Court of Appeal. There is, sadly, only one realistic option and I am satisfied that in A's case it is the proportionate, in Article 8 terms, and necessary order in terms of the welfare checklist to secure A's future. In those circumstances, and given the lack of active opposition by her mother, I am satisfied that in order to fulfil that plan, her welfare does require that I dispense with her mother's consent to the making of a placement order. Those are the orders I make.
37. I will just deal, for the record, with the question of contact. It is very much to be hoped by all parties that the relationship between the half-siblings can, if it all possible, be maintained. It is the experience of the adoption agencies that children who are effectively offered for adoption, subject to conditions of ongoing contact with members of the birth family, suffer a particularly hard fate in that very few adopters come forward, if any, to consider taking on such a child.
38. That said, it is equally the experience of adoption agencies that in appropriate cases, once introductions have been effected, the placement prioritised for a particular child, with a proper understanding of what might be involved, prospective adopters may consider a form of direct contact. It is hoped that that approach, in this case, will be pursued, obviously with no guarantee as to the outcome.
39. I am satisfied that that approach is the proper one rather than the approach of offering A subject to contact which would have serious consequences in terms of placement finding for her. She is, as I say, somewhat older than ideally would be the case, albeit having just had her second birthday, she is plainly a child who is capable of being adopted. The priority has to be to find a placement for her and, whilst it is entirely desirable that the relationship with B be maintained, I am satisfied that the finding of a placement for her has to take priority over that.
40. I do not think that in the circumstances there is any other matter that I need to address. This is of course an immensely sad case, M is not here to hear me say what I have said. All I can say to her by way, hopefully, of some consolation in the long-term is that this is an order which I very much hope gives A the very best opportunity to develop whatever potential she has in a safe and secure environment and become an emotionally secure young person and then adult in due course.
[Judgment ends]