England and Wales Family Court Decisions (other Judges)

IN THE BRISTOL FAMILY COURT

		1st February 2016.

HHJ Wildblood QC:

1. Introduction - In this judgment I refer to people by the following abbreviations:

A	C's older half-brother.
Mr and Mrs B ('or the foster carers')	The foster carers with whom C has lived since June 2014.
C	The child involved in these proceedings
Mr D	A's father.
M or 'The mother'	The mother of C, A and the baby (all boys).

2. These are public law proceedings that have been brought by Gloucestershire County Council in relation to a boy, C, who is now nearly seven years old. C left the care of his mother in May 2014 and has lived with Mr and Mrs B, the foster carers, since June 2014 in accordance with an arrangement made by the Local Authority under section 20 of The Children Act 1989. With the support of the guardian, the Local Authority proposes that C should live with his foster carers under special guardianship orders. C's father is absent from his life and from these proceedings. As to the mother she would like C to return to her care but neither accepts nor actively opposes the Local Authority's proposals. The highly respected expert in this case, Dr Freda Gardner, is not able to support the return of C to his mother either.
3. The issue in this case has never been whether C has been looked after well by the foster carers; it is beyond any doubt that he has. The issue has been whether it is possible for him to return to the care of his mother or whether, as a last resort, other state-led solutions have to be found in order to meet the paramount requirements of his welfare. Everyone at this hearing accepts that C should be with his mother unless, exceptionally, proven and proportionate necessity otherwise demands, as Article 8 of the Convention and Re B [2013] UKSC 33 state. Ultimately, there are two options – rehabilitation to the mother or a special guardianship order to the foster carers. All professionals involved now support the latter.
4. It is also agreed that, if I make special guardianship orders in favour of the foster carers, the mother should have contact with C eight times a year. That is a compromise solution since the mother was seeking monthly contact. However, the mother agreed to accept the eight times a year that was on offer if special guardianship orders were made, saying that she wished to signal her support for the foster carers and allow them to see that she wished to listen to their views.
5. C's natural family - At page three of her report dated 15^th January 2016, Dr Gardner says that the mother 'suffered profound and severe abuse and neglect throughout her childhood, which has led to abnormalities in psychological functioning and development'. Although a recommendation was made in March 2015 that the mother needed at least nine months of the therapy, the therapy did not commence until the seven months later, 27^th October 2015 [E223], although two test sessions occurred in August. It is through the intervention of the Local Authority that that therapy took place and I pay tribute to the efforts that they made, albeit belatedly, to arrange it. However it is now said to be too late for the damage of the mother's past to be mitigated sufficiently for her to care for C. The answer to the question 'how sad is that?' is painfully obvious.
6. C's mother is in her mid 20's and, in September 2015, gave birth to a baby boy who is subject to parallel care proceedings. The two cases have not been heard together because of the different circumstances and issues that arise in relation to the two boys. The mother has lived in a mother and baby foster home with her baby since shortly after the baby's birth in September 2015. The guardian, Mrs Ewart-James, says this about that placement of the mother and baby: 'progress has been slow and Dr Gardner has recommended an extension to the placement by another 6 weeks. It has already been a 17 week placement…therapy has had to be completed in an intensive way and has had limited impact on the mother's ability to care for her new baby. However, the mother has engaged well and has benefited from the therapy…given the high level of intervention offered to this mother and the fact that she has had such a very difficult childhood herself, I think it is important to guard against too optimistic a view which may create further delay'. Today I will be giving directions in relation the proceedings concerning the baby.
7. C also has a 3 year old half brother, A, who lives with his father (i.e. Mr D, who is not C's father) pursuant to a child arrangements order dated 4^th March 2015 and with whom C has contact twice a week. A and C have a very important relationship with each other [A37], particularly when a long term perspective is taken; that importance is not diminished by the fact that, when they were observed at contact together by the independent social worker, he considered that they 'spent little time relating to each other and were more comfortable in individual play' [E178].
8. At a time when the Local Authority proposed that the mother should have contact with C six times a year, it was suggested that A and C should have contact three times a year only. That was based on the suggestion that A would join in with one half of the mother's contact with C, thereby allowing the mother and C to have three contact sessions a year on their own. The proposal now being that the mother should have contact eight times a year with C there seems no reason why A and C should not have contact four times a year and, as I understand it, no one opposes that. For my part, although the issue of contact between the two half brothers is not formally before me, I think that four times a year must be a minimum amount. It is not for me to set a schedule for that contact since I have not heard from Mr D or from the foster carers. I imagine that the arrangements for this contact will develop in time in any event.
9. The threshold criteria – The allegations upon which reliance is placed by the Local Authority for the purposes of section 31 of The Children Act 1989 (that is the significant harm criteria that must be fulfilled before the court can consider the welfare aspects of the case) are controversial. The mother does not accept that the threshold criteria are fulfilled (see Ms Reed's helpful summary of issues for this hearing). Further the mother does not accept some of the other allegations that are raised in the documentation before me (such as the evidentially unsupported contention that C was undernourished by his mother or that he lost teeth due to poor dental care). It is neither necessary nor possible for me to adjudicate at this hearing upon either the disputed allegations or whether the threshold criteria are fulfilled.
10. In its application, issued in May 2015, the Local Authority alleged that C was suffering and was likely to suffer significant harm as a result of neglect, ill-treatment, impairment of development and impairment of health [B9]. It pleaded at the same page that C had been subject to the child protection plan, that he had been removed under police powers 'as a consequence of a person known to be a risk to children continuing to have contact with him against professional advice and because of unsuitable home conditions', that the mother was evicted from her flat on 29^th September 2014 after it had been significantly damaged and, finally that Mr Hutchinson had written an adverse psychological report recommending therapy over a period of nine months. In relation to C, therefore, the threshold criteria were necessarily pleaded largely by reference to the circumstances in May 2014 (when C left the mother's care) and, in relation to the baby, were pleaded by reference to the alleged harm that C was said to be suffering and was said to be likely to suffer.
11. The mother asserts that, although at times her care of C was not good enough (see Ms Reed's document) and the mother had difficulties with her own personal hygiene, the threshold criteria are not fulfilled; inevitably, her argument has part of its foundations in the views that were formed by the Local Authority itself on 19^th May 2014 (nine days before C was removed from her mother), when the Local Authority ended a child protection plan being satisfied that it was not necessary to continue it. In the light of the options for C that now arise, no one seeks a determination of those controversial issues at this hearing but it does need to be clearly recorded that they remain unresolved.
12. The proceedings and the chronology - These proceedings were transferred to me by the Gloucestershire magistrates because they revealed drift within the Local Authority's procedures that has meant that C has been accommodated under section 20 of The Children Act 1989 for far too long and it has meant that these proceedings have been unnecessarily protracted. I gave a judgment in September 2015 in relation to that (it is on the Bailii website at [2015] EWFC B147). However, since that judgment was given there has been a great deal of activity in this case and the Local Authority Children's Service has provided considerable assistance to this mother, not least by arranging therapy for her and supporting her and the baby in the mother and baby foster placement. I am particularly grateful for the support and direction that has been given to this case by the operations director for Children's Safeguarding and Care, Ms Kathy O'Mahony and by the county legal department.
13. The chronology can best begin on 28^th August 2013 when C became subject to a child protection plan. He remained subject to that plan until 19^th May 2014 [A9c] when it ended because it was felt that the mother had engaged well and that C's needs could be met under a Child in Need plan [A57]. The unanimous decision within the Local Authority's decision making process on 19^th May 2014 was that C was not at risk of significant harm; the social worker reported to the meeting that the mother 'does now trust people and she is able to sustain changes…she needs an intensive package of support for 4 weeks….there has been good overall improvement now that the mother has begun to trust the people who are working with her…'
14. It was on 28^th May 2014, only nine days later, that the police exercised their powers under section 46 of The Children Act 1989 and, on 30^th May 2014, that the mother is recorded as consenting to C being accommodated under section 20 of the 1989 Act. The circumstances of his removal and of the consent given by the mother are also controversial and there is a claim for damages under The Human Rights Act 1998 in relation to that and other aspects of the case. Nothing that I say in this judgment is intended to express any views upon the merits of that claim; it is not before me today, save insofar as I need to give directions in relation to it.
15. Following his accommodation by the Local Authority, C moved on 16^th June 2014 to live with Mr and Mrs B who are excellent foster carers. For them to have offered C the quality of care that is so evident from the papers speaks volumes of their humanity and kindness. It is unsurprising that C has developed as strong an attachment to them as they have to him [A9b and A38]. Initially it was being said by the Local Authority that C could not stay with his foster carers in the long-term. It was also being said by the Local Authority that the foster carers did not wish to care for him; that has proved to be misinformation [A37]. They have now been assessed as entirely suitable special guardians for C [C369].
16. The Local Authority accepts that it was wrong that C's circumstances were not brought to a Legal Planning Meeting until 5^th December 2014. It also accepts that it was wrong for these proceedings only to be issued on 15^th May 2015 [B1] – that is almost a year after the police exercised their powers in May 2014.
17. Also, as I stated in the September judgment, delay arose because there was very poor information as to whether Mr D would be able or willing to offer C a home with his half-brother, A. Eventually it was necessary for me to order that an independent social worker should assess the ability of Mr D to care for C (i.e. could C join his half brother A?). I gave a full judgment as to why I would not leave the necessary task of assessment to the Local Authority. The report that emerged was negative and Mr D has decided not to challenge its conclusions. Thus Mr D has dropped out of the picture of these proceedings, having indicated to the social worker on 15^th December 2015 that he did not wish to challenge the findings of the report.
18. At the time that the Local Authority issued the proceedings in May 2015 it considered that all 'necessary assessments of the mother and family members had been undertaken' [A9d] and that its plan was one of a time limited search for adopters with long term fostering for C in default [A9e]. It was on 23^rd March 2015 that Mr Roger Hutchinson had written a report, two months prior to the issue of the proceedings; he recommended a series of therapies [A9a] to address the mother's psychological difficulties and reported that 'such therapy would take 9 months at least'.
19. On 3^rd July 2015 I made an order [B87] in which I recorded that the Local Authority acknowledged that its 'Care Act 2014 assessment of the mother is inadequate and that to date it has taken no steps to implement the recommendations of Mr Hutchinson, its solely instructed expert'. As matters now stand that assessment of the responsibility of adult social services to the mother under the 2014 Act has still not been completed. The Local Authority agreed at court that day to fund two sessions of therapy to 'establish the mother's readiness to engage with therapy of the sort recommended by Mr Hutchinson, the Local Authority expressly stating that such work is for the purpose of forming a view about the unborn baby only'.
20. On 12^th August 2015 I vacated the final hearing that had been listed before the Magistrates and relisted it before me in September 2015 [B102]. I recorded once again that the Local Authority's then assessment of the mother under The Care Act 2014 was inadequate. On the following day, 13^th August 2015, the mother issued a claim for damages against the Local Authority alleging breaches by it of the mother's rights under Articles 6 and 8 of the European Convention on Human Rights ('the Convention') [B111-118]. On 17^th September 2015 I removed the final hearing from my list because the lack of assessments meant that it was not ready to be heard [B121a].
21. On 7^th October 2015 I rejected the mother's application for an order that there should be residential assessment of C and his mother at Orchard House in Taunton [B144 – the front sheet of the judgment refers to 14^th September 2015 incorrectly]. However I ordered that there should be a cognitive and psychological assessment of the mother by Dr Freda Gardner [B152a].
22. On 18^th December 2015 I declined to adjourn the final hearing despite contentions from the mother 'about the fairness of the assessment process' [B156]. However I recorded that, if Dr Gardner expressed a very strong view about that assessment process, the matter should be restored before me [B157]; I also gave another raft of directions in order to prepare for this final hearing [B157].
23. Recent professional evidence - On 15^th January 2016 Dr Gardner wrote her final report. It is concise and compelling. Helpfully it includes a very clear executive summary at page 3. She makes it plain there that she is not able to support the return of C to his mother. At page 26 she recommends that the baby should remain with the mother for a further six weeks of joint foster care 'with limited prompting to assess whether sufficient change could be achieved in a timescale [for the baby]. Dr Gardner expresses the opinion that the mother 'continues to need a very high level of proactive support to provide good enough care for the baby…sadly I do not believe that the improvements in functioning that the mother has achieved to date would enable her to independently and consistently meet the needs of C in the community'. She identifies the damage of the mother's own past as creating within her an unconscious defensive functioning which 'makes it very, very difficult for her to recognise and address her own needs'; that, in turn, plainly affects her parenting despite her love for her children [page 28 ibid].
24. Eventually, on 20^th January 2016, a 'PAMS' assessment was produced by the Local Authority in relation to the mother's parenting ability [C461]. The language used within the report is dense but the summary is that 'overall, the mother requires 51% of skills to be taught either immediately or in the next 4-8 weeks across all the areas assessed [C467]…the mother needs on-going, immediate teaching and support from the foster carer on a daily basis to help her address identified area of parenting (feeding, healthcare, routines) which were identified as a High Priority across these domains in the PAMS assessment'.
25. On 26^th January 2016 the therapist wrote a report which is at E222. She reports that the mother has stuck to the therapy (and that, of itself, cannot have been remotely easy for her, given her past). The therapy sessions have been condensed and therapy is not completed. The mother is seen as a good candidate for therapeutic work and the therapist recommends that there should be a further six months of therapy alongside other interventions focussed on helping her with developing her parenting skills and relationships [E224].
26. On 29^th January 2016 Mr Hutchinson wrote a further report saying that the mother has a full scale IQ of 77 and commenting on the documentation that he had seen, but without having seen the mother since March 2015. He expressed his grave concerns about the psychological condition of the mother, saying: 'The mother's deteriorating cognitive ability may indicate deterioration in psychological health and/or general wellbeing, and may have longer term implications in respect of her ability to parent'. I have not heard Mr Hutchinson in evidence and have therefore do not make any findings within this judgment as to any such deterioration in functioning.
27. Finally, on 29^th January 2016, the guardian filed her report in which she said, amongst other things: 'the mother is struggling to cope with the care of her new born baby in a very supportive environment and therefore having her older child with all the difficulties this is likely to present is very unlikely to be successful and therefore not in C's interests in my opinion'.
28. Therapy – Thousands of pounds were spent in this case obtaining the psychological report in March 2015 in which the obvious need of the mother for therapy was expressed. I do not understand why that level of expenditure and that passage of time were necessary to identify that obvious need. The facts of the mother's extremely damaging past have been known for years. The mother has been keen to engage in therapy since it has been on offer. Therapy is never an instantaneous remedy and it is bound to be a matter of months, at least, before the sort of damage experienced by this mother could be mitigated through therapy. Now, at the core of all of the professional analysis, it is suggested that the benefit of therapy is 'outwith the timescales of the child'. I cannot imagine that anyone would regard that process as satisfactory or sensible.
29. As the Designated Family Judge here, I know the care with which the need for early therapeutic intervention is being considered by this Local Authority and by other Local Authorities in this area. I commend Gloucestershire County Council for the work that it is doing in this field under the guidance of Ms O'Mahony and I know through discussion with the five Local Authorities here the systemic difficulties that arise when seeking to effect change. However, in my opinion, this is a very clear example of the need for early therapeutic intervention to be made available. Not only would that save large amounts of money (since the need for unnecessarily detailed psychological and other evidence would be avoided). It might also produce some better and clearer outcomes for parents and children.
30. Welfare analysis – I have to conduct the welfare analysis through the window of section 1(3) of The Children Act 1989, placing the welfare of C as the paramount consideration under section 1(1) of the Act. I must also apply the jurisprudence of Re B (ibid) and Article 8 of the Convention. These are not proceedings where issues under the Adoption and Children Act 2002 arise. In the light of the positions of the parties I intend to take my analysis briefly and I do not cite the full jurisprudence in this judgment as I am sure that, consistently with what was said by Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360, it will be taken that I know those essential aspects of family law very well.
31. C needs stability in his life and continuity of loving care and nurture. It would be quite wrong for him to undergo the change of circumstances that would arise if he were to be removed from the excellent care of Mr and Mrs B and placed with a mother who, currently, is not able to look after him. He is now nearly seven years old and has been subject to uncertainty for far too long. He has the characteristics and background now of a child who looks to Mr and Mrs B for his primary emotional comfort and edifice. It would be emotionally harmful to remove him from Mr and Mrs B and he would be at very real risk of emotional and psychological harm if he were to be placed with his mother at present because she could not look after him properly given the demands of her care of the baby and her own limitations. Sadly and despite all the effort that she has made, the mother is not capable of looking after him; her care of the baby is on the borderline of sustainability according to the professional reports (which I have read but which not seen subjected to forensic challenge at this hearing). Mr and Mrs B are highly capable of meeting his needs.
32. Therefore I am driven to the conclusion that C cannot return to his mother and that the best solution for him is to be subject to special guardianship orders to Mr and Mrs B. I therefore make special guardianship orders to that effect. I approve the arrangements for the mother and C to have contact eight times a year, although this will have to be kept under review and the contact arrangements will either increase or decrease, almost inevitably, as C gets older and the circumstances of all involved move on.
33. To C and to the mother - Increasingly, I see applications by people who have been adopted (or whose parents or grandparents have been adopted) to view the adoption files. I probably see one such application a week at present. This is not remotely surprising to my mind because we all want to understand our origins. That being so I wish to record the following points so that, if C ever does wish to see his own file, there is a passage in this judgment that informs him of some very important points.
34. Most importantly of all, there is no doubt whatsoever that C's mother loves him. She has done as much as she could to try to put herself in a position where she could care for him. Having had a very damaging upbringing she has struggled with being a parent despite her wish to look after her children. She has been brave enough to undergo therapy and many different assessments. She has lived in a mother and baby foster placement since the baby was born. She has attended contact regularly and, whilst pregnant, has borne the burden of these proceedings.
35. The mother has not given up on C and has not agreed to the making of a special guardianship order. She hopes that he will understand, however, why it was that, when faced with the evidence that has been gathered in these proceedings, she chose not to oppose the orders that were being recommended by the professionals. Ultimately, the decision as to what should happen has been that of the judge, and that is how it should be.
36. It is also important for C to know that his mother will always remain his natural mother. This judgment does not remove that status from her.
37. To Mr and Mrs B - However, this judgment also recognises the excellent and devoted care that is being given to C by Mr and Mrs B and the loving attachment that has now developed between them. Like the mother, everyone in the court wishes to thank Mr and Mrs B for all that they have done and will do in the future for C. Without them, what would have happened? Everyone in the court wishes C well for the future and hopes that he and Mr and Mrs B will be happy.

HHJ Stephen Wildblood QC

1^st February 2016.