England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT WREXHAM
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF R and M (CHILDREN)

		18th July 2016

JUDGMENT 18^th July 2016

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application by the mother for permission to revoke a Placement Order made in April 2015, in respect of two children, R, who is three years and eleven months-old, and MF, who is very nearly three years-old.
2. The parties to the application are as follows:

(i) the birth mother is represented today by Mr Im Thurn. He had the benefit of the mother's presence in Court earlier, but she has decided not to return to Court upon me announcing my decision a few moments ago;

(ii) the Local Authority (who I shall identify as such for the purposes of this judgment) is represented by Mr Sellars;

(iii) the Children's Guardian, (who has been involved with this case for many years now) Miss Segar, is here today with her Counsel, Mr Blythin;

(iv) the children's birth father is not present nor represented (that was a feature of the earlier proceedings as well) but he has been informed of the Local Authority's Plans.

3. The mother's application was issued in June 2016, and listed before Her Honour Judge Lloyd on 29^th June 2016. It was adjourned by her until today, 18^th July 2016.
4. The parties have filed up-to-date witness statements, position statements/skeleton arguments, and I have heard the oral submissions of the parties.

The background

5. I have had a long involvement with these children, and with their older half-sibling, M, who is now six years-old. M lives with her birth father.
6. In 2014 I made Care Orders in respect of R and MF, and there is a transcript available of that decision. The Plan for rehabilitation (which was approved at that time) broke down and in April 2015, and I granted Placement Orders in favour of the Local Authority. There is a lengthy transcript of the judgment (see F75 to F100) setting out the basis for these Orders. That judgment is to be read in its entirety into this judgment, and if there were to be an application for permission to appeal issued hereafter, a transcript of that judgment of 2015 should be available to the Court of Appeal as well.
7. The Local Authority's plans in respect of the Placement Orders was a placement of both children together in an adoptive placement. As the Orders indicate (see F18):

"In the event that the Local Authority is unable to identify a suitable joint placement for both children within a nine month search period, the Local Authority's Contingency Plan is that both children should be placed in a joint long-term foster placement (with their current carers if available)".

8. Later the following appears:

"In the event that the Local Authority is unable to identify a suitable joint adoptive placement within nine months, the Local Authority undertakes to apply to the Court to revoke the Placement Orders".

9. These provisions of the Order are reflected in my judgment in 2015.
10. The mother's monthly contact with the children was ended by a "farewell" contact on 19^th January 2016 (see B12).
11. On 14^th March 2016 the Local Authority wrote to the Court indicating that although the nine month period had elapsed in January 2016, the Local Authority:

"… wants a short period of additional time to follow through the most recently identified adopters. If those adopters are not suitable then the Local Authority will return the matter to Court" (see E2 and E3).

12. The Local Authority's initial selection of adopters was discontinued in February 2016. The Local Authority has now approved a match on 23^rd May 2016, and the match has been ratified by the Agency Decision Maker on 27^th May 2016. The children have been in foster care since December 2013.
13. The mother applies for permission to revoke the Placement Orders on the basis of section 24 Adoption and Children Act 2002. As an ancillary aspect, a suggested breach of good faith by the Local Authority in extending the nine month period (which I have mentioned already) to fifteen months without applying for a Revocation Order is relied upon. This application is opposed by the Local Authority, and by the Children's Guardian. The mother's case is put on the basis of continued foster care with a view to future reunification with her.

The legal provisions that have to be applied

14. The mother is required to obtain permission of the Court before she can apply for a revocation of a Placement Order under section 24(2)(a) Adoption and Children Act 2002. Such leave cannot be given unless the Court is satisfied that there has been a change in circumstances since the Order was made, under section 24(3) Adoption and Children Act 2002.
15. The following propositions have been identified in a triad of cases: Re P [2002] 2 FLR 1069; M v Warwickshire County Council [2008] 1 FLR 1093; NS-H v Kingston upon Hull Council & NC [2008] 2 FLR 918.
16. There is a twofold test:

(a) Has there been a change in circumstances? This is an issue of fact; and

(b) Should the discretion be exercised in favour of the applicant?

17. In relation to the former:

"The change of circumstances since the Placement Order was made must equally be of a nature and degree sufficient in the facts of the particular case to open the door to the exercise of the judicial discretion" (see paragraph 30 Re P).

18. In relation to the second aspect the Court should consider whether there is a real prospect of success, and this can include welfare considerations. However, the combined effect of section 1(7) and section 1(5) Adoption and Children Act 2002, mean that the welfare of the children is not paramount as it is in applications under section 47(5) and section 47(7) Adoption and Children Act 2002, for permission to oppose the making of an Adoption Order.
19. The "prospect of success" test relates to the revocation of a Placement Order and not necessarily to the return of the children to the birth parent. However, as I have said in this case, the mother does put her application on the basis that ultimately she would wish to care for the children once more.
20. The Court should adopt a summary procedure without there being any requirement for oral evidence, nor cross-examination.

The original circumstances

21. These are set out comprehensibly in the April 2015 transcript (see paragraphs 9 to 31 at F77 to F80). I summarise briefly:

(i) domestic violence and intra-familial discord;

(ii) mental health and adverse behaviour issues (see paragraph 25);

(iii) a significant criminal antecedent history (see paragraph 24);

(iv) substance misuse issues – alcohol and drugs (see paragraph 27); and

(v) delayed medical attention (see paragraph 12).

22. Unfortunately the formal psychiatric diagnosis of borderline personality disorder, and attention deficit hyperactivity disorder in the mother's case, was unavailable at the time of the Care Orders being made. The diagnosis was, however, available at the time of the placement applications (see paragraphs 28 and 29). The mother's behavioural difficulties were acute and dramatic in presentation, as the events following the June 2014 hearing demonstrate (see paragraphs 32 to 73 of the transcript).
23. The mother's conduct at the hearing (which ended in 2015) was extreme and unrestrained (see paragraphs 119 to 128), and the mother's conduct at the hearing itself, prior to the conclusion of the hearing, was also extremely difficult. All those present at the time (including myself) recollect the significant disruption which resulted from the mother's behaviour at a Combined Court Centre, which included two Crown Courts, a Family Court, and several Magistrates' Courts being within the same premises.
24. The mother's counsel asserts in his skeleton argument (see paragraph 5) that:

"The mother's case was not at the far end of the threshold".

I disagree. The threshold was serious, the mother's conduct which was part of the evaluation of risk under section 1(3)(e) Children Act 1989, and section 1(4)(e) Adoption and Children Act 2002, was extreme. For those who witnessed these events (and again I include myself) the mother appeared to have lost all reason.

27. In my judgment, I deal with the issues of therapeutic assistance at paragraph 129 to 137 of the judgment. So far as I am aware, the psychotherapy which was mentioned therein has not been undertaken, although the mother has undertaken some work relating to anger management with the North Wales Women's Centre, and I have read a letter dated 7^th July 2016, in that regard. Accordingly, the "treatment" which was referred to in my 2015 judgment has not actually occurred.

The mother's case with regard to change of circumstances

28. The relevant items the mother relies upon are:

(i) she has been assisted by her Probation Officer and has attended the North Wales Women's Centre (to which I have already referred);

(ii) she has learnt budgetary skills. She has debts to catalogue companies but she tells me she has no current rent arrears. She is dependent on welfare benefits but she manages to pay voluntary maintenance to M's father;

(iii) she has undertaken voluntary work, and employment at a café may be imminent. She has taken up an attendance at a local gym;

(iv) she has engaged with ARCH to assist her alcohol misuse; and

(v) her house is kept neat and tidy.

29. Many of these features were identical in 2015, or alternatively they played little part in the ultimate conclusion. For example, the mother's basic physical care of the children was acceptable, and the home conditions were identified as being good (see paragraph 139). There is, therefore, no change in that regard. She was committed to M's financial upkeep in 2015 (see paragraph 139). Ultimately the mother's employment and her budgetary skills were not determinative of the application in 2015. Her accommodation appears to be perfectly suited to a single person (so far as I can make out – see B10, paragraph 37).
30. The mother asserts (see paragraph 23 of her statement) that:

(i) her behaviour has stabilised;

(ii) she remains separated from R and MF's father, and the chronic domestic abuse is not a concern;

(iii) she maintains the therapy is no longer required by her (although I do not have expert confirmation of that assertion);

(iv) she describes her lifestyle now as being "boring";

(v) there are, she maintains, fewer instances of antisocial/criminal behaviour and substance misuse;

(vi) the children have deepened their links with their foster carers, due to the lapse of time, and it will be more difficult for them to make the transition to an adoptive home.

This is not borne out in the evidence of the key social worker and the Guardian, and the therapist for Action for Children (who completed a report on 17^th June 2016 – see D1 to D2). There is no basis for the assertion that these children are currently unadoptable.

The indicators for change since April 2015

31. The mother's application in June 2016, impeded the Local Authority's planned introductions. Ideally the Local Authority wished this application to be resolved on 29^th June 2016, due to the foster carers' annual leave taking on 17^th July 2016, and the possibility of delayed introductions.
32. The following features appear from the documentation which has been filed:

(i) on 11^th June 2015, the mother was convicted of assaulting a Police Constable, an offence which occurred in April 2015. She was, at the time, in breach of a suspended sentence of imprisonment, and she was given a fourteen week custodial sentence. She was released in July 2015;

(ii) on 22^nd April 2016, the mother received a suspended sentence of twenty weeks imprisonment, suspended for twelve months, which included a six month alcohol treatment requirement. This sentence was imposed for an assault upon a female taxi driver in November 2015, and the operational period of the suspended sentence continues until April 2017 (see B8);

(iii) it is asserted that the mother made threats against the social worker on 27^th May 2016 (see B11). That is denied by the mother;

(iv) the mother's behaviour towards the Local Authority's Independent Reviewing Officer on 11^th December 2015, it is said, was threatening and aggressive (see B8). That allegation in its entirety is not accepted by the mother;

(v) in April 2016, the children's birth father was informed of the Local Authority's current planning. He was opposed to adoption. A warrant was issued in June 2016, in relation to him due to an assault on his pregnant ex-partner (see B11). He has, therefore, remained in the locality and he is by no means a figure who can be relegated safely to the past. His opposition to the Local Authority's Plans is also of significance;

(vi) the mother has had no contact with M (the children's half-sibling) for almost twelve months (see B11). The potential adopters (I am told) would not promote direct contact between MF and R on the one hand, and M on the other. However, this risk was fully appreciated in 2015, and this was never a key component of the Plan. The placement needs of MF and R were accorded priority (see the Guardian's evidence and paragraph 87 of my judgment);

(vii) the mother has spent recently much of her time with the maternal grandmother (see paragraph 15 of the mother's statement), the maternal grandmother accompanying her to Court today. That relationship between the two of them at present may be entirely without incident, and potentially it could be useful for the mother as a supportive relationship, however, that has not always been the case in the past (see paragraph 148 of my judgment). I voiced concern about this resumed relationship in 2015. The mother has certainly not put distance between the maternal grandmother and herself; and

(viii) the mother has not seen M for nearly a year (see paragraph 12 of her statement) although no real explanation is provided for this. In the past (as I noted in my 2015 judgment) M's father had taken steps to safeguard her by the discontinuance of the mother's contact when that (in his view) became necessary. He appears presently to be of the view that until the difficulty emanating from this application is overcome, he is reluctant to reintroduce contact between M and her mother.

33. I have read paragraph 9 of the mother's counsel's skeleton argument very carefully. I reach the following conclusion:

(i) the mother's behaviour has not, in my view, stabilised. Two criminal convictions in the past fifteen months, and aggressive/threatening interactions with professionals (if true) is not an indicator of stability. There is, to my mind, little objective evidence of change, but I will say more about this topic in a moment;

(ii) it is too early to say whether the mother's future relationships with partners would be violent or not. There has not been a relationship over the last few months for this hypothesis to be tested one way or the other;

(iii) the risk of future harm for the children (if they were returned to their mother's care) as evaluated objectively as present in the medium term has not to my mind significantly abated. It is much the same as it was previously.

Conclusion

34. Under section 21 Adoption and Children Act 2002:

"A Placement Order is an Order made by the Court, authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the Local Authority".

The Order cannot be time limited by the Court, nor can conditions be applied by the Court.

35. I have no basis for considering alleged breaches of the Care and Support (Care Planning) (Wales) Regulations 2015, nor do I have jurisdiction to do so under section 24 Adoption and Children Act 2002. The Local Authority did provide an indicator of its initial search duration and that has been extended. However, Placement Orders can be granted where the prospect of a significant match is uncertain, so as not to deprive children of the opportunity of an adoptive home.
36. As the Local Authority's counsel observed, the approval of a contingent adoptive/foster care outcome does not contravene the stringency of the test to be applied; Re CM v Blackburn with Darwin Borough Council [2015] 2 FLR 290.
39. I was not taken to any authority where an allegation of bad faith or extended search duration of itself led to the revocation of a Placement Order. I see no basis, therefore, for importing these issues into the well-known statutory test under section 24(3) Adoption and Children Act 2002.
40. Accordingly I conclude:

(i) there are no relevant changes of circumstance; and

(ii) there is no real prospect of success in this case.

The mother's application is therefore dismissed.

End of judgment