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 CHILDREN AND ADOPTION ACT 2002
AND IN THE MATTER OF P [A CHILD]

		11.5.16

Introduction

1. In these proceedings I am concerned for P, a little girl aged five months. Her mother is M, her father F although he is not named on her birth certificate and does not have parental responsibility for her. P has three older siblings, all of whom were the subject of care proceedings which concluded with care and placement orders being made in August 2014, orders which enabled the relevant local authority to place the children for adoption.
2. The local authority began these care proceedings when P was born. The reason the local authority issued proceedings was because a pre-birth assessment had identified that the concerns which were present when the three older children were removed were still live issues. I shall return to those issues later. At the first hearing on an interim care order was made, the court approving the plan of P being placed in foster care where she has been ever since. Contact arrangements were put in place for both the parents and they have attended regularly throughout the proceedings. DNA testing was also ordered at the first hearing and a capacity assessment in relation to the mother. The case was later timetabled through to an issues resolution hearing, allowing for assessments of the parents and alcohol testing in relation to the father.
3. At the issues resolution hearing the father, much as he would have liked to care for his daughter, made the difficult decision not to oppose the local authority's plan for his daughter. The mother wished to oppose the plan but she did not seek to challenge any of the local authority's evidence, neither did she wish to give evidence herself. She proposed this hearing be dealt with on the basis of legal submissions. The judge who dealt with the issues resolution hearing was concerned that the mother understood the implications of not challenging evidence. The mother confirmed that she did and signed a statement to that effect. On that basis today's hearing has indeed been dealt with just on submissions.
4. For the local authority to seek a care order, it needs to establish what the situation was when the proceedings began, to prove what is known as the threshold criteria. Both parents have been able to agree that that threshold has been crossed as set out in the bundle at pages A15 – 17 and it will be attached to today's order. Threshold as agreed covers risks from M due to her learning difficulty and her emotional and psychological presentation, the mother's poor parenting skills, the mother's volatile and inappropriate relationships, and risks as a result of the father's difficulty with regulating his emotions and behaviour.
5. As a result of the parents accepting that threshold has been crossed, I have been able to focus on the welfare issues, on what outcome would be best for P. The options I have are stark. The mother wishes P to be placed in her care, whereas the local authority supported by the guardian say the best outcome for P would be adoption. There are no potential family members who could care for P, all assessments carried out having been negative and not having been challenged.
6. One other application has been made, very much at the last minute. The father has applied for a declaration of parentage as he wishes his name to be put on P's birth certificate. DNA testing has been carried out in these proceedings which proves his paternity. There is no opposition to me making such a declaration from the local authority or guardian. The mother does oppose it, simply saying it has been made very late in these proceedings.
7. In preparing for this hearing I have read the full bundle of papers provided to me in this matter. I have also heard legal argument from each of the lawyers instructed in this matter.

The Local Authority and Guardian's Position

8. I am considering the case of the local authority and the guardian together as they take the same view as to what would be best for P. The local authority began this case because of the history and that of course is relevant to decisions for P. Her older siblings were removed from their parents' care in February 2014 after the police had been called to the mother's home following a report of an incident between the parents. What the police encountered there led to them exercising their powers of protection and the children were placed in foster care, care proceedings being issued the following day. During those proceedings the parents were in a volatile and at times violent relationship, violence seeming to come from both sides and often when alcohol had been consumed to excess.
9. During those care proceedings the mother underwent a psychological assessment by a psychologist who concluded that the mother had a learning difficulty and her IQ put her within the extremely low functioning range. He also identified that there were concurrent deficits in her social functioning and that she was without appropriate family support. The mother also had an independent social work PAMS assessment of her parenting capacity which concluded that her parenting capacity was extremely low.
10. The court ultimately determined that the children should not be placed in the care of their mother or father and care and placement orders were made.
11. Since the conclusion of those proceedings the mother continued to see the father although reporting the relationship to have ended. She became pregnant to him in August 2015 but had this pregnancy terminated. Police reported that there had been continual disputes between the two, which had resulted in the police needing to be called out. An anonymous referral was received in September 2015 in which it was reported that M and F had met up and he had seen a picture of the baby scan. M had cancelled her key working session that day at the refuge at which the mother was living. After the mother's pregnancy with P became known, Social Care undertook a pre-birth assessment which concluded that P would be at risk of suffering significant harm if she was placed in the care of her mother and that led to these proceedings. The mother denied that F was P's father, necessitating DNA testing.
12. In addition to the pre-birth assessment, within these proceedings the social worker has conducted an updated social work assessment of the mother and of the father. I have considered carefully those assessments and the other social work evidence. In respect of M, the local authority has significant concerns regarding her ability to safely care for P. The social worker identifies the key concerns as being the mother's lack of insight and acceptance as to why her older children were removed from her care, her inability to work openly and honestly with professionals, her limited support network, her own vulnerabilities, and concerns about the true nature of the relationship between M and F.
13. A real concern for the social worker is the mother's aggression linked to alcohol misuse. In December 2015, she was asked to leave the women's refuge where she was living as she was intoxicated and became verbally abusive towards staff and other residents. M has a history, evident from the police documentation, of becoming verbally abusive when intoxicated. The social worker records that in the past twelve months there have been three separate reported occasions where M has been intoxicated and this has resulted in the police being contacted due to her behaviour. The Local Authority would be concerned at the detrimental impact this would have on P should she be placed in the care of her mother, exposing her to the impact of alcohol misuse and potentially to neglectful parenting. The records show that M becomes verbally abusive when under the influence of alcohol and this would place P at risk of suffering significant harm.
14. The suspicion that there is an ongoing relationship between the parents is a significant concern for the local authority given the history of this case and is seen as one of the most significant risk factors. The parents have a history of informing professionals that they have ended their relationship however soon seem to reconcile. This was evidenced when the care proceedings for the older children concluded in 2014 and the couple reconciled the same month. I have read the guardian's report confirming everyone believed the couple to have maintained their separation. Within these current proceedings, police disclosure shows a neighbour reported a domestic incident which resulted in M's window being damaged at her home on 27 February. That night the mother contacted the paternal grandmother to advise that F had caused the damage and the paternal grandmother reported this to the police. This is denied by the mother.
15. Even since the assessment concluded concerns regarding contact between the parents has continued. The social worker received a telephone call just a few weeks ago from a friend of the mother's. She stated that the mother was drinking more than she had acknowledged and she believed had also used cocaine on one occasion. The friend said the mother had collected the father from the train station in late February after he had had contact, they had gone back to the mother's home and the mother's window was smashed during a domestic violent incident. The mother phoned her friend asking for help but then hung up and in a subsequent phone call said she had left the house after F had 'kicked off'. [The friend] advised that she saw the mother later that day intoxicated. The social worker says the friend's information as to timing fits with the incident reported to the police, and also confirms that it was indeed a day when F was having contact with P. The friend expressed other concerns about the state M was in and said she was washing her hands of M. Also since the completion of the assessments the social worker was also informed via the contact team that F is now also living in Kirklees so in the area of the mother, his explanation being that it was the only place he could get rehoused.
16. The local authority says I can find from all this unchallenged evidence that there are ongoing links between the parents, whether or not they remain in an actual relationship.
17. The assessment of the mother looked more widely at her parenting capacity and whether it would be possible to place P in her mother's care. The assessment concluded that it was not. The social worker said the cumulative impact of all the concerns was such that a placement with her mother would not be safe. She said "It was reported in the previous Care Proceedings that M's learning disability had an impact on her ability to meet the continuous needs of her children; however I would suggest that her additional learning needs alone, would not prevent her from being able to safely care for P. However, her learning disability along with a poor support network, ability to form safe relationships, issues around chaotic lifestyle and alcohol misuse, along with the on/off relationship with F all together are risk factors, that I believe would place P at risk of suffering significant harm if she was to be placed in the care of her mother. It is because of these reasons that I am not recommending that P is placed in the care of her mother and I recommend that alternative permanency options are sought for her."
18. In respect of the father, the social worker again says it would not be safe to place P with him. Her concerns in respect of him include his alcohol misuse and his criminal history, the relationship between him and the mother and linked to that his inability to work openly and honestly with professionals, his instability in terms of his housing, and his lack of support network. F has undertaken an alcohol test as part of these proceedings and this showed he had been drinking at excessive levels. Despite his lack of acceptance of these results there is evidence to show that alcohol continues to be problematic for F as he was arrested two months ago due to him being intoxicated and had become aggressive to his mother, and following his arrest was charged with two counts of assaulting a police officer. And days after this the mother's window was damaged in an incident which the mother reported as involving F. The local authority says that F's chaotic lifestyle, alcohol misuse and behaviour whilst intoxicated would clearly place P at risk of suffering significant harm.
19. The social worker, having balanced all the options, concludes that adoption would be in P's best interests. The local authority's plan, if the Court approves that outcome, would be for contact between P and her mother to reduce gradually, from three times a week to weekly for two weeks, then fortnightly for the next month, and then monthly until adopters are identified. The father's contact will be reduced to fortnightly for a month, then again monthly until adopters are identified.
20. The social worker has looked at the options for P. Given her assessment of the parents and the lack of any family option she concludes that the best outcome for P would be adoption. That position is very much supported by the guardian. In her risk analysis in her final report she identified the same factors as being relevant when looking at the parents and whether either of them could care for P. She too showed her concerns as to whether the parents have indeed separated or at least whether they will maintain any separation, particularly now they are again living in the same locality.
21. In respect of the mother as a carer for P, whilst acknowledging her evident love for her daughter, the guardian concludes: "I am in agreement with the conclusion of the Local Authority's assessment. It is concerning that M still does not fully accept the outcome of the proceedings in respect of her older three children. She does not accept the deficits in her parenting and was unable to identify specific areas of support she may require if P returned to her care. The combination of difficulties that M's experiences would place P at significant risk of harm in her care. I cannot envisage a realistic support package that could be put in place to alleviate the concerns about M's parenting."
22. The guardian noted that F recognised the changes he needs to make before he could safely care for a child. That led to him making the very difficult decision not to contest the local authority's care plan. She said that the weight of this decision was evident during her conversation with him when he presented as being emotional about his inability to care for P.
23. The guardian in her report looks at the options for P in the same way that the local authority social worker had. She is of the view there is no realistic package of support could be put in place to safeguard P in the event that she was returned to the care of either of her parents. She too therefore concludes that adoption would be the best outcome for P.

The mother's position

24. M wishes her daughter to be placed in her care, accepting though that were this to happen it would be under a care order. Her view is that she has made a number of significant improvements in her lifestyle since the proceedings were issued such that she could adequately protect P in her care. Ms Barker on her behalf has today drawn out positives from the evidence, that the mother engaged with ante-natal care and with the local authority before P's birth and during the updated assessment, that she attends a women's centre and is now attending a parenting course again, that she has maintained her own home, that she has attended P's health appointments and all contact sessions, and that observations of contact are largely positive.
25. In her final statement, M says that she accepts she has a degree of learning disability and has been assisted by having an advocate during these proceedings. She says were P to be in her care she feels she would benefit from having ongoing intensive support. She feels she has good support from friends in the area she has moved to, although I note one of those is the friend who has since reported concerns to the local authority.
26. In respect of F, M is clear that she is no longer in a relationship with him and indeed says she has had no contact whatsoever since she separated from F since she moved into the refuge in May 2015. She did not think he could be P's father as at the time of conception she was drinking excessively and did not recall any sexual encounter with him around that time. She denies in blanket form all the referrals to the local authority in relationship to any ongoing contact with F. She denies that she was in the house when the window was smashed, although puzzlingly she says she was at the house of the friend who we now know notified the local authority of the incident and who believed that F was present.
27. M in her statement admits times of heavy drinking and that when under the influence of alcohol she becomes aggressive. She says however she no longer drinks to the same extent, just having one or two glasses maybe a couple of times a month.
28. It is the mother's view that she has been open and honest with professionals and she says she is happy to go on working with them. She is also interested in work to improve her parenting, such as attendance at a parenting course, as she thinks that would be useful to her.

The father's position

29. I have read F's final statement carefully and listened to his advocate. F has made the very brave decision not to challenge the local authority's care plan, much as he would have wished to be able to care for his daughter. In his statement he says that he knows he still has some way to go in achieving stability and addressing his problems. He feels he needs time to tackle those problems and achieve a settled lifestyle, which he can see does not fit with P's timescales as she needs a permanent home without delay. He does not however accept that he has had any ongoing contact with M, including the incident I have referred to above. Having thought about matters, F formed the view that he did not think P should be placed with her mother as he felt she was not able to care for P.
30. F therefore has done what almost no parents I have encountered have done, to support the local authority in its plans for his daughter. It is important to record this is clearly not been an easy decision from F and does not in any way suggest that he has abandoned his daughter. Due to his love for her he has been able to focus on what is in her best interests rather than what he would ideally wish to happen. Mr Gore said on his behalf he consents to the making of the placement order but unfortunately F has not been given the opportunity to sign the necessary paperwork and the guardian has been given permission not to come to today's hearing.

The relevant law

31. I now turn to consider what orders if any are in the best interests of P. 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".
32. 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."
33. 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 P, taking into account the assistance and support which the authorities or others would offer.
34. In reaching my decision I have taken into account that P'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 adults and the children 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.
35. A placement order is sought by the local authority in respect of P. The court cannot make a placement order unless the parent has consented or the court is satisfied that the parent's 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.
36. In this case I have to ask myself whether P could safely be placed in her mother's care or whether she should be adopted, there being no other option for her. I have to balance the pros and cons of each of the options being presented to me. McFarlane LJ in Re G [2013] EWCA Civ 965 said "What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or 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. I shall use those factors as I consider the evidence.

My decision

37. Maybe the most significant factors I have to address relate to harm and the capacity of the parents to meet P's needs. Looking first at the question of any harm which P has suffered or is at risk of suffering, it has been agreed by all the parties that the local authority has proved the threshold criteria in relation to both parents as at the start of these proceedings, that at that time P would indeed have been at risk of significant harm were she to be in the care of either of her parents. From all the evidence I have read I am satisfied that nothing has changed the position of the parents. Sadly they both remain where they were at the time their older children were removed. Where the evidence of the social worker conflicts with the mother I prefer the social worker's evidence. I do not think the parents have been honest about ongoing contact with each other. It does not matter whether or not they are actually in a relationship. They are now geographically in the same area again and the risk of further domestic abuse incidents between them is high, particularly if one or both have been drinking. Were P to be in the care of her mother she would be at risk of harm from such incidents as I do not imagine F would be able to keep away from his daughter or M from F.
38. M is unable to recognise the defects in her parenting which were part of the problem when the older children were removed. I have considered carefully the evidence filed in those proceedings, including the report of the psychologist and the PAMS assessment. The guardian in those proceedings summarised the outcome of those assessments in this way : "These reports make clear that M's capacity to prioritise and respond to the needs of her children is significantly compromised by her learning difficulties and her personality and functioning. [The PAMS assessor] adds that M's parenting knowledge is limited and her implementation of basic care of her children is poor. Both experts observe that in contact M struggles to attend to the differing needs of her children in an equitable manner. [The PAMS assessor] is equally concerned regarding the limited capacity of M to provide emotional warmth and stimulation to her children…… [The PAMS assessor] also considers that M demonstrates little acceptance of the local authority concerns and that the prognosis for her engaging with professionals and sustaining necessary change in her parenting within suitable timescales for the children is poor. [The psychologist] comes to a similar conclusion." The guardian went on to confirm that her assessment of the mother was consistent with the expert assessments.
39. It is evident from the evidence in those proceedings what the impact was on the children of the parenting they experienced, particularly the older two who as a result were children with additional care needs. One of the children exhibited a range of anxiety related and controlling behaviours and struggled to regulate her behaviour. Another child presented with delays in speech and language as well as in her social and emotional development, that child expecting little from her carers and presenting as withdrawn, self-reliant and without any concept of play when first removed. Even the youngest child slept for long hours and made few demands on carers.
40. It is clear from her evidence that M cannot see what she needs to change and that is an essential first step in improving the situation such that she could care for P. This means P's needs would not be met in her mother's care. On considering the evidence of the local authority, particularly the recent referral from the mother's friend, evidence I remind myself she has sought not to challenge, I am satisfied M has not been open and honest in her dealings with professionals and I have no reason to think that will change. I am satisfied therefore there is no support package that could be put in place to keep P safe were she in the care of her mother.
41. F has bravely been able to admit that he is not in a position to his care of his daughter and I do not need to decide that. The evidence I have read though satisfies me that his decision is the right one, that P would be at risk of significant harm were she in the care of her father.
42. If I address then another of the factors in the welfare checklist, how capable each of the parents is of meeting P's needs, I am afraid the answer is that neither M nor F are capable at this time, for the reasons I have set out above. Both of the parents have significant problems and have much to do before they can parent a child.
43. Looking at other factors I need to consider, I am conscious that P has all the needs of any small baby. She needs to be kept safe and secure, to have all her day to day needs met, to have a carer who is attuned to her needs and knows what is required and how to meet those needs. She needs to have the chance to make an attachment to carers who will be her carers throughout her childhood and into adult life.
44. P is obviously of an age where her wishes and feelings cannot be ascertained but I can assume she would want to grow up in her birth family were that in her best interests.
45. Whatever I decide P is going to have a change in her circumstances as she lives with short-term foster carers who cannot provide her with a long-term home. Fortunately she has had a secure experience in foster care and has attached to her current carer, an attachment which she will be able to transfer to her long-term carers. What she does need is to have one and only one change in her circumstances, so the family she moves to must be one where everyone can be confident she will spend the rest of her life.
46. I have to consider the likely effect on P throughout her life of having ceased to be a member of her original family and become an adopted person. I accept adoption is a draconian outcome for any child, ending her legal and practical relationship with her parents and extended family. P has had good contact with her parents and that will end if she is adopted. Adoption might however make the possibility of contact with her adopted older siblings possible. I acknowledge the loss of family contact to P and I can only balance it against the advantages that adoption would bring her.

Balancing the Options

47. When I come to balance the options for P I find it is not difficult. I have looked again at the analysis done by the social worker and guardian and I agree with them. Placing P with her mother would mean her needs would not be met and she would be at risk of harm. From all I have read I can have no confidence that M even understands what changes she needs to make let alone has the capacity to make those changes. The only advantage to P of a placement with her mother would be an ongoing relationship with her mother and indeed with her father, but again I have to look at her older siblings and their experiences when considering how great an advantage that really would be to her.
48. The alternative, as there is no potential family placement for P, is adoption. In such a situation I know all of her needs will be met and she will be safe and secure. She would have a permanent family throughout her life, going beyond her childhood, with all the advantages that brings. There may potentially be issues for her around her identity as an adopted person but life story work and adopters who are open to discussing her origins will lessen the harm that could come from this. Overall I am entirely satisfied that this option would be in P's best interests.
49. The making of a placement order enabling P to be adopted obviously breaches the parents' Article 8 rights but my view is it upholds P's right to family life. I am satisfied the making of such an order is proportionate in terms of its interference with the family's Article 8 rights and is a necessary order.
50. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of P being placed safely in her mother's care. I am quite clear that P's 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 P 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. That includes the level of future contact which is proposed, unless the local authority is minded to make its reduction slightly more gradual out of kindness to the mother. I therefore make a care order. I am satisfied that it is in P's best interests for her birth certificate to reflect the truth regarding her paternity, so that she has a true and positive sense of her own identity, so I also make a declaration of parentage, confirming that F is P's father, and invite the Registrar General to exercise his discretion to reregister her birth to reflect that.
51. I am also satisfied that P's welfare requires me to dispense with her parents' consent to placing her for adoption, the word "require" here again having the Strasbourg meaning of necessary, "the connotation of the imperative". I should reflect that that in F's case I am only taking the step of dispensing with his consent due to the technicality that he has not signed the necessary documentation confirming his active consent. I therefore make a placement order authorising the local authority to place P for adoption.
52. 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 my thinking when reaching my decision, 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 P up. I propose therefore to make a direction that this judgment must be released by the Local Authority to P's adopters so that it is available to her in future life; that release however is on the basis that it should not be disclosed beyond them or any medical or therapeutic staff working with the child or family. It is very important therefore that the judgment is passed on to the Adoption Team to give to them. I have written this not for the benefit of the adults but for the P and wish to be sure it reaches her.
53. Finally I also make an order for public funding assessment for all the respondents in this matter. I hope that my reasons as given are sufficient but if the advocates require any further detail to be given I would ask them to let me know.