England and Wales Family Court Decisions (other Judges)

In the FAMILY COURT at
NEWCASTLE UPON TYNE

		The Quayside Newcastle upon Tyne NE1 3LA
		30th March 2016

1. His Honour Judge Simon Wood : I am concerned with the welfare of A, a boy born on [a date in] 2015, so now almost six months old. Durham County Council, on 15^th November 2015, shortly after A's birth, issued an application seeking a care order in respect of A. Its plan is that he be placed permanently outside his family and so the local authority seeks a placement order in respect of him as well.
2. That plan is opposed by A's parents; his mother, M and his father, F, who seek to have A returned to their care. The plan of the local authority is, however, supported by A's Guardian, Elizabeth Clark.
3. Before I say anything more about the procedure and how we have got here, I should just say a word about A himself. Born a very small child after what appears to have been a pregnancy that his mother had which carried hazards for both him and her, he has more recently been diagnosed with a chromosome 15 mutation. There are a number of chromosomal conditions associated with that mutation, such as Angelman syndrome, Prader-Willi syndrome, isodicentric chromosome 15 syndrome, sensorineural deafness, various forms of cognitive difficulties, delayed growth and development, hypertonia, and characteristic facial features. As matters stand, there is a great deal of uncertainty surrounding A's future health needs and his cognitive development and the evidence before me suggests that it may be a little while before signs, if there are any, of that mutation become apparent. It is, however, suggested that, amongst other things, the circumstances in which A is brought up is likely to play at least some part in the development of various types of presentation.
4. It follows that the local authority believes, as does the Children's Guardian, that A is potentially going to be a child who is going to need care that goes beyond that of what might be described as ordinary parenting. That is therefore a factor that the court has to consider throughout this case, because it not only affects the care which his parents may be able to give him, but it may also affect the plan which the local authority has and the willingness of prospective adopters to consider committing themselves to A.
5. Care proceedings, of course, involve two principal questions. The first question is whether the threshold criteria for making a care order under section 31 of the Children Act 1989 have been satisfied; the second question is that, if so, the court has to consider which order it should make.
6. Section 31(2) provides that a court may only make a care order, or supervision order, if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and that the harm or 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.
7. In this case, the threshold is formally disputed by the parents, but that brings me to the second issue that I should mention, which is that M is also the mother of two older boys, X who was born in 2001 and Y who was born in 2002. F is not the father of either of those boys.
8. There had been extensive involvement of the local authority from 2002 onwards in respect of those boys and care proceedings were ultimately brought in respect of them, which concluded at a hearing at this court on 22^nd July 2015, in front of District Judge Loomba, when he made care orders in respect of each, with plans for long term foster care. He obviously had to consider the question of threshold in relation to each of those boys in the course of making the order that he did and there were three overarching findings. The first was that they had been exposed to the risk of physical harm; the second, the risk of emotional harm; and the third was the risk of neglect. The findings that were made are repeated in the threshold document in respect of A and particulars of each are given.
9. So, in respect of the risk of physical harm, there was a finding that in January 2013 X had disclosed to the police that he and F in this case had scuffled, resulting in X falling to the floor. Then on 6^th January 2014, Y had made a disclosure to school staff that F (in this case) had strangled him over the weekend.
10. The risk of emotional harm is supported by police reports of call outs in November 2012, when M reported that X was causing a disturbance and was found to really have very little understanding of how to deal with her son, reporting that she would call the police every time he misbehaved. There was a further referral in January 2013, with M reporting that she was unable to control X, X reporting at that time that F drank to excess. There was a further call out in September 2013, when an argument became heated and X took up a knife and approached F. The upshot of it was that X was disarmed, but when spoken to by the police complained that it was F winding him up that had caused this to happen. In June 2014, Y had disclosed to the social worker his unhappiness at home and wanting to sleep at school. Work was done with X which indicated that he held very strong views indeed against F, reporting that he did not want to look at his face; picking out a card saying "because he tried to hit me and take by brain out", and a third one saying, "I shake when I see me dad, my heart pumping".
11. So far as neglect was concerned, there was a disclosure in May 2014 to a community support worker by X that F was always drunk. Then on 17^th October 2014, Y's school made a referral to the local authority when Y attended with numerous facial, neck, ear and arm bruises as well as scab like marks on his hands and legs. There were a number of accounts, some of which conflicted as to how they occurred, but the bruises were of different colours and it seemed as if the bruises had not occurred at the same time.
12. So those were the findings made in July 2015. In the course of those proceedings, it was discovered, in April 2015, that M was pregnant with the baby who is now A. It is also a fact that, at that point, she disengaged with both the local authority and the court, not attending sessions arranged for work to be done, but not significantly attending hearings in relation to X and Y, in particular, not attending the final hearing. In those proceedings, Dr Rippon, a psychiatrist, found M to lack capacity, so she was represented through the Official Solicitor.
13. Accordingly, within these proceedings, a further assessment has been carried out of M by Dr Cooper, a psychologist, who has concluded that her presentation is different from the time when she was seen by Dr Rippon and that although she has an extremely low IQ, she nevertheless has capacity. She has an IQ score of 64, which indicates extremely low cognitive functioning; Dr Cooper also found that M lacked insight into the concerns around her abilities as a parent and thus presented as unrealistic in her understanding of the situation. Nevertheless, Dr Cooper felt she was capable of participating in the litigation and indeed giving evidence, providing that detailed guidance that she offered was adhered to, to enable her to participate.
14. I mention the question of capacity now because so far as the threshold in X and Y's case was concerned, M, via the Official Solicitor, did not seek to oppose it. X and Y's father – not F – did not oppose the threshold either, but F was not a party to that litigation, as an intervener or in any other sense. Yet, nevertheless, in his witness statement, he now seeks to challenge the findings that were made against him, on the basis that he was not then a party. Now that by itself would not have been a completely impossible task. However, there are three factors that it seems to the court are relevant in this regard.
15. First of all, neither in July, although he had the opportunity to be present, or subsequently, save in his statement, has he sought to challenge those findings.
16. Secondly, he was in fact intimately involved in the case of X and Y because he, along with M, had put himself forward as a joint carer of those boys. Yet despite having done so, he almost wholly failed to engage within the litigation, missing every single parenting assessment that was arranged and, as the social worker put it to me, "did not, in any sense, engage with …" her.
17. Thirdly, although F has filed a statement seeking to challenge the findings, he has not attended any hearing within these proceedings and, along with M, not even attended this final hearing, despite, the court is quite satisfied, being fully aware of it taking place today and having been notified, I am satisfied, both by his solicitors in personal meetings and by letters and by the social worker who herself took the trouble to provide the parents with a copy of the last order, setting out the date of this hearing, at her meeting with them on 18^th March. Whilst it is obviously disappointing that they have not sought to attend this hearing, it has to be said that it is entirely in keeping with the non-engagement that occurred regarding X and Y and, more recently, regarding A, to which I will come.
18. Accordingly, it seems to the court that F had the opportunity to challenge the findings previously made. Beyond filing a statement, he has taken no steps to do so and, with M, disengaged. So I am satisfied first that the findings in July 2015 stand and secondly that this case must proceed, notwithstanding their non-attendance, because A's welfare and Parliament demand that, absent good reason, a decision regarding his future must be made within 26 weeks of these proceedings having been issued.
19. I have referred to the threshold in July, but the local authority has also relied on further factors that were present as at the date of the issue of these proceedings, on 15^th November 2015. Of those that continue to be relied upon by the local authority are the following.

(1). M has not attended any contact with X and Y since January 2015.

(2). M has continued to prioritise her relationship with A's father – F – over and above the needs of X, Y and her unborn baby.

(3). M failed consistently to engage with ante-natal care in that she failed to attend seven scan appointments and three consultant appointments, notwithstanding the fact that she had a low-lying placenta, which placed both herself and her baby at an increased risk of significant complications, or worse.

(4). A's father, F, has a significant history of substance misuse, including both drugs and alcohol.

20. There is really no issue that can be taken with the first three of those further factors. So far as (4) is concerned, however, an issue does arise because, notwithstanding the local authority's belief of a history of drug and alcohol misuse, hair strand testing which was directed by the court was found to be entirely negative. True it is that his hair was very short and it was only possible to test for a period of two and a half months, but the findings were completely negative.
21. Now, the issue that arises therefrom is that first of all the social worker had a conversation with F, on 4^th December 2015, at a time when the hair strand testing had been directed and, as she explained to me, she told him that the testing was going to happen and she asked him if there was anything that was likely to be found. At that meeting, he said that he used amphetamines and had been using drugs for many months. The hair strand testing being negative therefore came as a surprise, in the light of his direct evidence. There is, however, other evidence in that the general practitioner reported to the child protection conference, in a letter of 2^nd November 2015, and drawing on the records, identified alcohol dependent syndrome in 1999; heroin misuse since 2000; opioid type drug dependency in 2011, along with drug addition therapy with methadone. There was also a record of self-harm, drug overdose and anxiety and a history of amphetamine abuse in 2009.
22. Now Ms Kitching invites me to make a finding different to that which the local authority suggests, on the basis that there is an acceptance of taking drugs in 2015; there is no formal acceptance by him of alcohol misuse at that time and there is, of course, the negative drug test that was taken following the order of this court directing testing at the end of November 2015. I think the points to make are these.
23. First of all the relevant date is 15^th November. Secondly there is certainly the admission of drug taking for many months, but thirdly there is also the evidence from the doctor which suggests a history of misuse going back at least to 1999, or 2000. So it seems to the court that notwithstanding the negative drug test, which is of course noted and an encouraging sign, as at the date of protective measures being taken, the assertion in the threshold document is in fact correct.
24. Because of the form that this case has taken, the only evidence I heard orally was from the key social worker and I heard from her briefly. Mrs Helen Hale is an experienced social worker: she was, in the latter part of the proceedings at least, X and Y's social worker and she has had very extensive involvement with the family since that time. She has filed two detailed statements; she has filed two assessments and prepared a chronology as well as both care plans, including the final care plan. These are comprehensive, closely argued, evidentially well supported pieces of work and, indeed, no challenge was or could have been mounted to them. Her ability to present a positive case for these parents was, sadly, seriously impaired by their non-engagement. I do not propose to repeat in this judgment the unchallenged written evidence that she gave, but in order to give some of the flavour of that non-engagement and of course she had the past experience of the non-engagement with regard to Y and X, she said that, with regard to the parenting assessment of A:

"Neither parent engaged fully and indeed they only attended two out of the five sessions, which were arranged for that purpose."

25. Asked about support and services, because this appears to be a couple who would benefit from such, she pointed to a list of services which had been offered, none of which had been taken up. So, a nurturing course, through Sure Start, was offered via a pre-birth family intervention worker; no sessions were attended. Parenting courses were offered to each parent through Sure Start, again the pre-birth family intervention worker was involved; neither parent attended any session. Stonham, the charity that deals with housing issues and housing support, who had been involved regarding X and Y initially, the parents simply ended their involvement with that organisation shortly after A was born, thereby depriving themselves of support that would have been available to them in meetings with help over finances and, although not pursued as a threshold matter, it is quite plain that there were significant financial issues affecting this couple, as well as more general support. All abruptly ended in October.
26. Fourthly, affecting both M and F, but particularly M, was the access to medical services. She was very late in notifying the medical authorities of her pregnancy, I think she had reached 20 weeks at that point. She attended no scans at all, although she attended basic midwife appointments and, notwithstanding the importance of those scans that I have referred to, by reason of the complications of pregnancy, neither she nor F, who was fully aware of their importance, did anything to engage.
27. As a consequence, these parents, who themselves have suffered the misfortune of experiencing seriously abusive childhoods, appear to be ill-equipped to meet the needs of a young child with the unhappy history of X and Y before A and have thereby demonstrated an inability to provide safe, nurturing and consistent care. As I say, there is a long history regarding X and Y, who not only find themselves now in long term foster care, having suffered significant harm themselves, but they have in effect been abandoned by M, by her withdrawal from contact, over a year ago.
28. So, in the circumstances, despite an attendance at the early assessment sessions, they have failed to attend consistently. The evidence suggests they were unable to put into practice matters that had been learnt in theory by such sessions as they did go to. As I said, they failed to access appropriate support and they have been unable to meet their own health needs, causing grave concern as to their ability to meet those of A, who, as I have indicated, has very particular needs.
29. So to revert to the threshold, that is, as I have indicated, not accepted. That regarding X and Y was found by the court in July 2015 and whatever M now says, there is no serious challenge to it. Insofar as she asserts, as she does, that she did nothing wrong with X and Y, she simply underlines the lack of insight that Dr Cooper identified, already mentioned, as well as flying in the face of the acceptance by the Official Solicitor on her behalf of those findings.
30. I have dealt with the issue raised by Ms Kitching on behalf of F with regard to drink and drugs. I am satisfied that that finding is also made out. So, in the circumstances, in the more limited way advanced by Mr McCain, on behalf of the local authority at the outset, I am satisfied that the threshold, under section 31 of the Children Act, has been satisfied and the findings that are thereby made, lead inexorably to the conclusion that, at 15^th November, there was a likelihood that A would suffer harm if he were to be placed in family care. I have not said already, and perhaps I should have done, is the fact that the plan was for him to go into foster care at birth and that is what has happened and where A has remained.
31. So, I turn therefore to the second question which is what order should the court make. In answering that question, I apply well-established legal principles; I bear in mind the rights of M, F and A, under Article 8 of the European Convention, to respect for family and private life; under section one of the Children Act, A's welfare is my paramount consideration and I have regard to section 1(2), namely that delay in making decisions concerning his future is likely to prejudice his welfare. I also have regard to the checklist of factors, set out in section 1(3), to be taken into account, in determining where his future lies and what order should be made. The particularly important factors in A's case are his very specific needs; the capacity of his parents to meet those needs and any harm that A is at risk of suffering.
32. These provisions have been the subject of numerous important decisions by higher courts, most particularly that in Re B (A Child)[2013] UKSC33, and the decision in the Court of Appeal in Re B-S (Children)[2013] EWCA Civ 1146 and subsequent cases, decisions which I have had firmly in mind, at all points during this hearing. I remind myself that in Re B the Supreme Court reiterated that the test for severing a relationship between parents and child is very strict, such that in the words of Baroness Hale, it should only occur:

"In exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare. In short, where nothing else will do."

33. I remind myself that everything necessary should be done to preserve family relationships and keep families together, unless the maintenance of those family ties would harm the child's health and development. The President in B-S pointed to the stringent nature of the test set out in the statutory language of the 2002 Act. What must be shown is that the child's welfare requires parental consent to adoption to be dispensed with. In that same case, the President identified two essential things required where a court is being asked to approve the plan placed before it today. Its draconian nature is such that what is required is first of all proper evidence, both from the local authority and from the Guardian; the evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.
34. The second matter identified by the President is the need for an adequately reasoned judgment, citing, with approval, the observations of McFarlane LJ, in Re G (A Child) [2013] EWCA Civ 965 in which he emphasised that the nature of the judicial task was to undertake a global, holistic evaluation of each of the options available, before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.
35. Now in this case, very sadly, the options are limited. As I have indicated, the local authority invites the court to the view that the threshold findings and the parents' behaviour and conduct are such that they cannot appropriately be considered to be safe carers for A. There are no alternative family members who have been able to be identified and positively assessed to be able to look after A; the paternal grandmother was, at an early stage, advanced as a potential carer, but following an incident of violence when F was cautioned and the paternal grandmother's property was damaged in October 2015, it would appear that the paternal grandmother herself withdrew. Certainly no family member has sought to challenge any decision by the local authority in that regard.
36. So the options are stark. The first option plainly is a return to the parents as the parents propose. Each has filed a statement in which they, as I say, indicate that A should be returned to them and, as I have also set out, in M's case denies any reason exists as to why that should not happen. The parents are not here to seek to persuade me that the concerns that are raised by the local authority and the Guardian are either not realistic concerns, or are not concerns which are incapable of being managed. They therefore place themselves at a considerable disadvantage. The local authority submit that there is, with the Guardian, strong evidence to suggest that these parents cannot safely care for A, drawing attention to the nature of the findings made by the court and the inability, particularly for M, to see that those findings, and particularly where they impact upon her older children, really rule her out as a person who has the necessary insight and ability to work with the local authority and other professionals to meet A's needs, notwithstanding how successful some of their contact may have been.
37. The positives which could be identified in relation to a return to the parents' care, would be that A would have the opportunity to be looked after by his parents; secondly he would be able to maintain direct links with his birth family; thirdly that would provide him with a positive sense of identity as part of his birth family; fourthly, it is not in question that the parents demonstrate love and affection for A and they have at least been able to attend the greater number of contact appointments with him.
38. Set against that, however, are the historic and current significant concerns regarding the parenting capacity of each of the parents and their ability to meet A's needs throughout his minority. There is a significant concern that in A's case in particular his holistic development needs would not be met. Thirdly, there are significant concerns as to whether A's safety would be maintained, were he to be placed in the care of the parents – that is by reference not just to the shortcomings in parenting identified, but by the proven history in relation to Y and X. Fourthly, there is the inability of this mother to demonstrate insight into the previous and ongoing concerns. Finally, notwithstanding the attendance at contact, there is evidence to suggest that these are parents who cannot put into practice the theoretical matters that they have learned.
39. The second option, therefore, I am afraid is the stark one of adoption. A is too young a child to be placed in foster care; he has been in foster care for the whole of his life and he has a pressing need to leave foster care and that could only be a solution in the event that there was some prospect within the foreseeable future of a return to family care. Nobody has argued that that is appropriate in this case, hence the local authority advocates the placement for adoption.
40. The positives in favour of the making of a placement order and subsequent adoption would be that first of all, in all probability, A's emotional and physical needs would be met within such a placement; secondly, he would be placed with a carer or carers who would have been fully assessed as having the capacity to not only look after a child, but specifically matched as suitable and equipped to meet A's particular needs. Thirdly, there is no likelihood that A would suffer significant harm in the care of a properly vetted adopter or adopters, where he could be safe and secure and not exposed to the degree of risk of harm that, for example, X and Y were. Fourthly, as a result of such an order being made, A would have the opportunity to have stable and consistent care and the chance of living a normal life. In that secure environment he would have the best opportunity of developing into a well balanced and emotionally secure young person. Finally, at six months of age, he will be able to manage the transition from foster care to adoption without suffering any undue emotional harm.
41. Set against that, of course, are very significant disadvantages. First of all, A would lose the direct relationship with his parents; secondly, he would lose the potential of relationships with extended family members – relationships which can be very valuable to a child, even where a child cannot be cared for within the family; thirdly he would lose his identity as a member of his birth family – identity being an important aspect of any child's development; finally, although most adoptions are successful, a not insignificant number break down, resulting in further emotional harm to the child.
42. I am reminded by the Guardian that adoption should only be considered where completely and absolutely necessary and in A's best interests. But, as I say, the final analysis of the local authority reaches the firm conclusion that this is one of those exceptional cases where A's welfare requires the court to approve the plan.
43. In the court's judgment, the evidence in this case does comply with the requirements identified by the Court of Appeal in B-S. The realistic options available, sadly limited though they are, have been comprehensively analysed and the advantages and disadvantages of each carefully considered by the local authority and the Guardian and I accept their analyses.
44. There is, in the court's judgment, no evidence that would give the court any confidence that these parents can meet A's needs in the foreseeable future, however understandable their desire to do so. Indeed, it seems to the court that they are, at the present time, further than ever away from being able to meet needs by failing to access the help that they need, by failing to engage within this process.
45. So, although the Supreme Court has reminded us all that adoption is a last resort and I take account of the fact that adoption is not necessarily a panacea, on a proper conduct of the balancing exercise, at this stage, I am in no doubt that there is no realistic prospect of A being returned safely to the care of his parents and that he has a need for stability and permanence, as a vulnerable baby, which can only be met in an adoptive placement.
46. So, in those circumstances I do make a care order and, being satisfied that A's welfare requires me to dispense with the consent of both of his parents to placing him for adoption, I make a placement order permitting the local authority to place A for adoption.
47. This is a very sad outcome. At one level one can understand why the parents are not here. I would say only this to them: that whilst there is very little in the way of comfort that the court can offer them at the present time, I hope that by virtue of the order that I have now made, A will have the best opportunity possible to develop whatever potential he may have; to grow up being a secure, emotionally well balanced child, young person, adult and that that may in the distant future be some consolation for the outcome today.
End of Judgment

We hereby certify that this judgment has been approved by His Honour Judge Simon Wood.

Compril Limited