England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF

		17 March 2016

Background

1. In these proceedings I am concerned for B, aged three months. She is the second child of X and Y, who both share parental responsibility. Their older child, C, was made subject to care and placement orders on 15 September 2015 in proceedings where I was the allocated judge. X has two older children, who are in long-term foster care, an adoptive placement never having been identified for them following proceedings which concluded in 2012.
2. The local authority began care proceedings when B was born due to the fact that the court proceedings regarding C had only just concluded. An interim care order was made on 18 December and the case came before me for a CMH on 14 January when the case was timetabled through to today's hearing. The mother issued an application early on for an independent social worker to assess her as a sole carer on the basis she had separated from the father. He was not offering himself as a carer but supported her being a sole carer for B. It was agreed I did not need an independent social worker to do that as the assessment could be done by the local authority social worker. The case was timetabled through to today on the basis although it was to be listed as an issues resolution hearing it could hopefully be used as a final hearing. The parties at that stage agreed a plan for contact whilst court case continued, with B seeing her mother twice a week for one hour and her father once a week for one hour, those contact sessions all to be supervised. Since then the only significant event in terms of the court proceedings was the local authority applying for a placement order, that application being issued on 22 February 2016, having reached the conclusion that adoption was the right outcome for B.
3. The local authority had been involved with C since his birth due to concerns stemming from the mother's care of her older two daughters. Proceedings began after C had suffered bruising to his face on two separate occasions in the latter part of 2014, alongside other concerns. The parents said they did not know how bruising had been caused but at what was meant to be the final hearing Y admitted causing the injuries. The parents were able to accept that the threshold for care proceedings had been crossed in that C had suffered physical harm, neglect and corresponding emotional harm. The detailed findings made by me, having been agreed by the parents, were:

a. C has presented with bruising on 13 October 2014 and 17 November 2014. Both episodes of bruising are non-accidental in nature and have been caused using recklessly excessive force.

b. The perpetrator of the injuries detailed at (1) was Y who has stated that the injury on 13 October was caused by him "tapping" C on the face using three or four fingers. Y accepts that the force used was excessive and inappropriate and caused bruising to C who was 7 and a half months old at the time.

c. A non-perpetrator parent failed to protect C from further significant harm following the first episode of bruising in October 2014.

d. C was found to have nappy rash so severe that he was bleeding and blistered. The parents failed to treat this properly and therefore did not meet his basic needs.

e. On 17 November 2014, there was an incident of domestic violence between X and Y. X received bruising to her face and being struck on her back. These were inflicted by Y. The incident took place in front of C.

f. Y has little, if any, previous experience of parenting a child.

4. Prior to that hearing the local authority had assessed the parents and were of the view that the parents could not care for C. The parenting assessment concluded that the parents had unresolved issues resulting from their childhood experiences which had significantly impacted on their lifestyles. Y was noted to have experienced neglect and abuse as a child and was described as emotionally insecure and suffering low self-esteem. For the mother her previous experiences were likely to have impacted on her ability to parent, which had demonstrated itself in her parenting of her daughters. After the parents made the concessions they did an updated risk assessment was carried out but this was again negative. At the final hearing the mother said she intended to separate from the father but it was my assessment that the risks to C were too great and I made final care and placement orders, enabling him to be adopted. I was of the view that, even if she stayed separate from Y, X would be unable to care for C on her own given her experience of parenting the girls. Her extended family were not able to provide the support she would need due to her fragile relationships with them and other risks. I was of the view there was no support package, professional or family, which could keep C safe twenty four hours a day or ensure all his needs would be met.

The Issues and the Position of the Parties

5. The local authority having carried out its assessment, both pre-birth and the updated assessment filed with its final evidence, maintains that B cannot be safely placed in her mother's care. That position is entirely supported by the children's guardian.
6. The local authority questions the mother's ability to separate from Y and feels the risk of her prioritising that relationship would continue to place B at risk of significant harm. It is noted that despite the mother saying in her January statement that she had not spent time with the father over Christmas, in fact she had had contact with him on Christmas Day and around New Year. I have seen information from social media sites suggesting contact between the parents. The mother when pressed by the social worker admitted Y had stayed over during the Christmas break on her sofa after they had had a few drinks. In the proceedings regarding C I was concerned there was a co-dependency between the parents. My view is that this mother cannot manage on her own in life and needs the support of a partner.
7. The other concern is the ability of the mother to care for a baby on her own. I look at the history of her care of her older children, both the girls and C, and look back at what I said regarding her care in the judgment at the end of C's case. In these proceedings he mother was offered the chance to go on a parenting course but only went to the first session. I have read in her statement how her explanations for missing subsequent sessions but she admits that she gave up attending having formed the view there was no hope of getting her daughter back. The local authority also makes the point that there is very limited support for this mother from her family, as had been an issue in the previous proceedings.
8. The social worker in her final statement looks at the options for B against the backdrop of her assessment of the mother. The father has not offered to care of his daughter, wanting instead to support the mother in having B in her care. The social worker looked at the options available and her view is that the best outcome for B would be adoption. She is already in an Early Permanence Placement which meets she will be able to remain in the only home she has known. The local authority recommends a reduction in contact for B with her parents over a four-week period and thereafter annual letterbox contact.
9. I should say the local authority carried out a viability assessment of a paternal uncle to see if he could be a potential carers for B. Unfortunately that assessment was negative due to the uncle's own issues and neither he nor the parents have sought to challenge those assessments.
10. The guardian very much supports the position taken by the local authority. He knows the problems the mother has had maintaining a separation from the father. He agrees both parties are emotionally reliant on one another and does not believe the mother could therefore prioritise B's needs over her relationship.
11. The guardian notes that the parents, the mother in particular, have received intensive packages of support from social care, health professionals and paternal family, in order to develop their parenting skills and provide a safe and stable home for their children. Whilst noting there have been periods in which both parents have provided a good standard of care to C, despite intensive support the parents were unable to priortise or protect C when he was in their care. The social worker's pre-birth assessment identified no evidence of significant change since the completion of proceedings for C in September 2015 and the guardian noted nothing had changed since.
12. The guardian when he first met with the mother observed she was very positive about attending a parenting programme. The fact that she only managed to attend one of the sessions therefore gave him real concern, particular as the mother had previously disengaged from a parenting programme which led the guardian to question her motivation to engage with support services in future.
13. The guardian looked at the options available for B and agreed that in the circumstances where neither of her parents was able to meet her needs adoption would be the right outcome. The guardian could not support a plan of long-term foster care given B's age and her need for a permanent stable living arrangement where she could emotionally invest in a family.
14. Until very recently the position taken by the parents was that they wanted the mother to care for B. Just yesterday though the mother filed a statement in which she accepted the inevitability of the orders I would make. She said she loved her daughter very much and it was her dearest wish to be able to care for her. Although she believed she could care for B safely, having gone through the evidence she realised the Court would not return B to her care. She had therefore decided not to oppose in any active way the plans of the local authority although she could not agree to adoption for her daughter. She said in her brief statement that she understood B would remain with her current carers and be adopted by them. X said she had met the couple and they were good people who care for B very well. Given that B had never lived with anyone else the mother was pleased B could stay where she was if she could not be returned to X's care. Very touchingly she said at the end of her statement she felt she should come to the final hearing but was not sure she could bring herself to given she did not think she could go through what happened with C again. She has instead made the very brave decision to come to court today, despite the pain that my decision today has caused her. It shows a commitment to her daughter which is very much to be admired.
15. It is obvious to me that X loves B very much and it must have been hugely hard for her to accept the inevitable here. I do not criticise her at all for being unable actually to give her consent to the adoption. It is to her credit that she can see the advantages to B of her staying with her current carers if she cannot come home and has been able to step back and allow that to happen.
16. Y has always taken the position that he was not offering to care for B, given the outcome of C's proceedings and the findings made, but he supported the mother being a carer for their daughter. He has not filed a statement in these proceedings but his position has continued to be to support X. He too would very much have wanted their daughter to grow up living with her mother but he too realises that very sadly that is not going to happen. Again, he has managed to come to today's hearing and demonstrate his love for and commitment to his daughter.

Threshold

17. For the court to make a care order it is necessary to be precise about the risk of any harm to B. The local authority drafted proposed findings which the court could make which are largely agreed by the mother but not entirely. The findings sought are as follows :

a. X is unable to protect B from harm due to her history of parenting her older children, her failure to protect C and her failure to accept the risks posed by Y to C.

b. Y poses a risk of physical harm to B due to the findings made against him of non-accidental injury to C caused in October and November 2014.

c. Neither parent has sought any further support to deal with managing the behaviours that caused C to be injured in their care.

18. X takes issue with part of the first of those points. She accepts the findings that were made in previous proceedings that she failed to protect C and in respect of her parenting of her older children. She does not however agree that she has failed to accept the risk that Y poses to B as a result of the injuries he caused to C.
19. The evidence of the local authority is that there has been contact between the parents in spite of them telling the social worker they had separated. The mother did not admit all of the contact but has accepted the father stayed over at her house over the Christmas period. Even if that was the only contact there had been it is not the action of a mother who sees the risk the father poses to her child and who has separated from him as a result. I am satisfied this does show that X has not accepted the risks Y would pose to B were she in her mother's care.

The legal context

20. I now turn to consider what orders if any are in the best interests of B. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are "very extreme", and should only be made when "necessary" for the protection of the child's interests, "when nothing else will do". The court "must never lose sight of the fact that (the child's) interests include being brought up by her natural family, ideally her parents, or at least one of them" and adoption "should only be contemplated as a last resort".
21. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said : "Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
22. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for B, taking into account the assistance and support which the authorities or others would offer.
23. In reaching my decision I have taken into account that B's welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the parents and B as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the children's rights and be proportionate.
24. A placement order is sought by the local authority in respect of B. The court cannot make a placement order unless the parent has consented or the court is satisfied that the parents' consent should be dispensed with. A court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" consent to be dispensed with. In that context I am conscious that "requires" means what is demanded rather than what is merely optional.
25. I have to ask myself whether B should be placed in her mother's care, with or without statutory orders being made, or should she be adopted. I have to balance the pros and cons of each of the options. In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002 and propose to consider the evidence in the light of those factors.

My decision

26. As with C's case, this is a case which to a great extent can be boiled down to the risk there might be if B were placed in her mother's care and X's ability to meet her needs.
27. I am required to look at any harm within the meaning of the Children Act 1989 which B is at risk of suffering. This is a case where the past is the best predictor of the future. I look at the harm which the girls suffered in their mother's care and which C suffered in the care of his mother and father. They suffered harm because of their mother's inability to parent, and the father's inability to do so in the case of C, and C suffered physical harm at the hands of his father. It seems evident that situation would be the same if B were placed with her mother. I do not believe Y would stay away or that X would try to keep him away. I doubted they would maintain a separation which they said they would make at the end of C's proceedings and of course they did not actually separate at that time. They seemed to have tried to separate in these proceedings but they have spent time together and not been honest about that.
28. I also do not believe that B's needs would be met if her mother was caring for her alone. Her previous parenting of the children shows me the problems she has and she is not prepared to do anything to improve her parenting. Very sadly when given the opportunity to go on a parenting course she only managed to attend one session. I note what X says about why she did not get to the subsequent ones, that she was ill once, the next clashed with her contact, and she felt there was no point attending thereafter. The reality is that was her one chance to show she could do something about the quality of care she could give to a child and she failed to see it through.
29. Very sadly I think the risks to B were she to be placed with her mother are simply too great. As I concluded at the end of C's proceedings, there is no support package, professional or family, which would keep B safe twenty four hours a day or ensure all her needs would be met. The only other realistic option for B is adoption. An adoptive placement would keep B safe and give her the security of a "forever family". Her physical, emotional and educational needs would be met by her adopters. It is also a huge benefit that B will be able to stay with the only people she has known as her parents, which has to be of benefit to her in terms of the attachments she will already have made.
30. Obviously being adopted means that B ceases to be a member of her original family. This means losing the relationship she has through contact with her parents but also the potential of a relationship with extended family and her older half-siblings. The contact which is proposed after any adoption is just for indirect contact, which will assist B with her identity but of course it cannot give her a meaningful relationship with her birth family. I acknowledge the loss that that means but I have to balance that against the risks to B were she to be with her mother. The reality here is that the most important thing for B is for her to be safe and for all her other day to day needs to be met.
31. Looking at the balancing exercise then that I must carry out, placement of B with her mother would put her at risk of harm again, of all her needs not being met, and even with a support package that would be the case. The advantages of such a placement are that she would be in her birth family and have a real knowledge of her origins. If she is placed for adoption she will be safe and secure and all her needs will be met but that means losing her birth family links. Having considered all the matters that I have set out in this judgment, the right option for B is for her to be adopted.
32. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of B being placed in her mother's care, and that her needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority's final care plan for B is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. Having concluded that B's welfare requires me to dispense with the parents' consent to placing her for adoption, the word "require" here having the Strasbourg meaning of necessary, "the connotation of the imperative", I also make a placement order authorising the local authority to place B for adoption.
33. There is one further direction I wish to make. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. This judgment, in setting out what I have read and heard in court, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing B up. I propose therefore to make a direction that this judgment must be released by the Local Authority to B's adopters so that it is available to her in future life.
34. For completeness, I also dismiss the mother's application for an independent social work assessment. I make an order for public funding assessment for all the respondents in this matter and I reserve any future applications regarding B to myself.
THRESHOLD AS FOUND

B is likely to suffer significant harm, such harm being attributable to the care likely to be given to her care order was not made not being what it would be reasonable to expect a parent to give. The court specifically finds that:

35. X is unable to protect B from harm due to her history of parenting her older children, her failure to protect C and her failure to accept the risks posed by Y to C.
36. Y poses a risk of physical harm to B due to the findings made against him of non-accidental injury to C caused in October and November 2014.
37. Neither parent has sought any further support to deal with managing the behaviours that caused C to be injured in their care.