England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (A CHILD)

		Date : 27.1.16

Introduction

1. In these proceedings I am concerned for A, aged five months old. He is the child of M (the mother) and F (the father). F is not named on A's birth certificate, does not have parental responsibility, and has played no part in these proceedings. We only know that F is his father because A's DNA has been tested against the DNA of two siblings where F is known to be their father.
2. The mother has four older children, B, C, D and E,, the younger two being A's full siblings. None of these children live with the mother. Care proceedings regarding B, C and D ended in 2013 and all three children are in long term foster care. Care proceedings were begun regarding E at birth and in 2014 he was placed with X and Y, X being the mother's second cousin, under a special guardianship order.
3. Concerns were raised prior to A's birth as there were historic concerns relating to domestic violence, mental health issues and the mother's chaotic lifestyle which had led to the four older children being removed from her care. The mother also failed to engage consistently with ante-natal care. The local authority tried to carry out a pre-birth assessment but the mother did not engage with that so all the information at the outset of these proceedings came from the family's history.
4. Care proceedings were begun in respect of A at birth, this application being issued on 17.8.15. He was accommodated by the local authority with foster carers when he was discharged from hospital. At the first hearing on 4.9.15 an interim care order was made, which order remains in place. During proceedings the obtaining of a psychological assessment of the mother was approved by me.
5. Whilst these proceedings have been ongoing, contact has taken place between A and his mother. Due to her inconsistent attendance this was reduced to contact twice a week for one hour, which the mother has kept up.
6. A's father has chosen to play no part in these proceedings. He was informed that he was A's father on 14.10.15. He initially indicated that he wished to see A and was invited to meet with the social workers on 16.10.15 but did not attend. Three home visits were undertaken to the father, both unannounced and announced, but workers could get no response. He was written to by the Social Work Team on 23.10.15 and 5.11.15 asking him to make contact but he did not respond. Three further phone calls were made to him but he has not responded. The father has also been written to by the Independent Reviewing Officer but has not made contact. He was also served formally with a letter from the local authority about these proceedings on 8 January, confirmed he understood the letter but mentioned he was likely to receive a custodial sentence at a hearing on 13.1.16, although that decision has in fact been deferred. Plans for contact for him are up and running, subject to him meeting the social worker. I am satisfied that he has had every opportunity to become involved in his son's life and indeed in these proceedings, being aware of today's hearing, and has made an active choice not to do so, such that I am content to proceed in his absence.

The Issues and the Evidence

7. In preparing for this hearing I have read the full bundle of papers provided to me in this matter. As no party opposed the plans for A, I have heard no evidence but have heard submissions from all of the legal advocates. X and Y, the proposed carers for A, have also come to court today and came into the hearing.
8. Looking at the local authority's case, the social worker did her best to assess the mother fully but after attending four sessions the mother missed the next seven sessions. In the light of their assessment, and also taking into account the psychological assessment of her, the local authority has concluded that A could not safely be placed with his mother. The local authority's plan is that instead he should be placed with his brother in the care of X and Y under a special guardianship order.
9. The local authority's reasoning regarding the mother is in essence that she has not made the necessary changes since the removal of her four older children which would be needed for A to be safe in her care. There were issues regarding the mother's mental health while she was pregnant and medical services were involved. The mother also failed to disclose her pregnancy because of fear of the baby being removed. During her pregnancy the mother spoke of wishing to take her own life. No evidence has been filed by the mother to suggest that the situation regarding her mental health has improved.
10. There are also many concerns regarding A's father and there are strong doubts on the part of the local authority that the mother has managed to separate from him. She denied A's paternity until the DNA results were known, and even then suggested this was another one off stand with him when she was drunk.
11. The relationship between the parents, ongoing since around late 2007, has been characterised by repeated and extreme violence. The mother has reported that the father had a drink problem. She spoke of him becoming more and more controlling, of her losing her independence and then physical violence starting and increasing in intensity over time. Assaults the mother reported have included the father holding a knife to her throat, causing a broken rib, making threats to kill the children, and strangling her. The mother has also reported assaults taking place whilst she was pregnant. The strangulation resulted in her obtaining a non-molestation order but within two months the father was back at her property and that led to the three older children being removed. Most recently, in January 2015, the father was arrested and charged with arson with intent to endanger life with respect to the mother. He was remanded in custody but she did not attend to give evidence at his trial last July.
12. The local authority suspects that the parents remain in a relationship. The social worker in her final statement says : "M has stated that both E and A were the result of one off encounters. The Local Authority finds this improbable. CSWS do not have any conclusive evidence that F and M remain in a relationship but feel unable to rely on her word alone due to the numerous occasions in which she has been untruthful. Additionally, a family member has recently advised CSWS that F and M remain in a relationship and have 'never really been apart'. It is further alleged that M has informed F that she is once again pregnant with his child."
13. The local authority also in this regard places reliance upon the psychological assessment of the mother. In her report the psychologist comments that the mother's personality traits and style of emotional regulation mean that "she is more likely to enter into and stay in, relationships characterised by domestic violence as well as not engage consistently with professionals" and that "she is vulnerable to re-engaging with him [the father] or other partners who may be violent". The psychologist concludes that "it would not currently be possible to manage the risks to A were he to be placed back in her care".
14. The local authority also argues that the mother's chaotic lifestyle continues. She has not been able to maintain a tenancy or manage her finances. It is known that the mother has arrears and a housing benefit overpayment that she needs to repay. Her tenancy is at risk as a result of her failure to comply with the repayment agreement. Also during the assessment process the mother requested a food parcel stating that her benefits had been suspended. The guardian reports the mother living with her brother at the time the guardian visited as she had no gas or electricity.
15. Overall the mother's engagement with services has been inconsistent. Although her attendance for the social work assessment began well, her engagement significantly decreased and she only attended four out of eleven of the sessions. The mother also failed to engage with one project where she was meant to access their Domestic Violence Support and Education Group, and support from another domestic violence legal support service was ended in October 2015 due to lack of engagement. Her contact with A was also inconsistent, missing almost half the sessions offered, resulting in contact being reduced to twice a week. None of this makes the local authority think the mother could care for a child given the chaos in her life.
16. The social worker in her final statement talks about particular needs which A may have. She reports : "It has become known that he is experiencing some significant difficulties with his eyesight. His foster carer noticed that he was not making eye contact and was not tracking toys and other objects with his eyes. After investigations at the Childrens' Eye Clinic at (a local hospital), it is believed that he currently has little or no vision, however he may possibly have Delayed Visual Maturation and his eyes could develop normally by age 6 months. His progress will be monitored and he may require further testing. CSWS are aware anecdotally that there is a family history of blindness from birth on the paternal side of the family and this has been reported to the Consultant." Concerns have also been raised that A may have Intrauterine Growth Restriction, most commonly caused by poor maternal nutrition but can also be a result of drug and alcohol misuse in pregnancy.
17. The local authority assessed X and Y as potential carers for A, given that E is in their care. That assessment is entirely positive, including an update carried out after the information regarding A's potential sight problems became known. The couple are aware of his potential health problems and still wish to offer him a long-term home.
18. In terms of future contact between A and his mother, the local authority proposes that this should happen twice a year, that contact to be supervised, initially by the local authority but then by X and Y. It will also take responsibility for promoting contact between A and the oldest of his three siblings. Matters are slightly complicated by the fact the mother did not take up contact with E until December 2015, having not wanted to meet with his carers to organise this. She has now had a successful contact and it is hoped this is a good grounding for future contact with both boys. The local authority has filed a plan showing how the contact will gradually reduce, so arrangements are clear to everyone involved. The father was offered twice yearly contact with E and attended one of the two possible contacts, being in prison when the other was due to happen although the paternal grandmother attended. The local authority is suggesting that the father's contact with both E and A would also be twice a year, supervised by X and Y, but as a prerequisite he needs to meet with the social worker to discuss arrangements.
19. In her final statement social worker analyses the options for A's future. Given the negative assessment of the mother, her view is that the best option would be for A to grow up alongside his brother in the care of X and Y. Adoption is clearly not appropriate and long-term fostering would not meet A's needs for security and a permanent family base.
20. The guardian entirely supports the local authority's application. She agrees that the mother's chaotic lifestyle and presentation is such that it does not appear she could prioritise and meet A's needs. Looking at the history and the current situation suggests that her difficulties in parenting are of a long-standing nature and are unlikely to change in a timescale appropriate for A. The guardian carries out her own analysis of the options for A and she too concludes that the making of a special guardianship order to X and Y would be the best outcome for A.
21. M has found it hard to stay engaged in these proceedings and has not provided a final statement but I have heard today from her solicitor. She very much loves both of her sons and would very much like to have cared for A, as with E before him. Sadly she realises she is not in a position to do so and with a heavy heart accepts the plans for him. She is very grateful to X and Y for providing a home for both of her sons as she wants them to grow up together. She accepts the plan for contact twice a year, whilst hoping in due course that may be able to be more frequent.

Threshold

22. For me to make a public law order, the local authority has to satisfy me that the requirements of s31 Children Act 1989 are met, what is known as the 'threshold criteria'. It has to prove that A has suffered, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to the care given to him, 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 to him.
23. The parties have managed to agree between them wording which sets out the threshold, the basis on which I am making orders today. I am happy to endorse that agreement and to find that the following facts are proved :

a. The mother has had four older children removed from her care. The most recent proceedings concluded in July 2014.

b. The mother failed to engage with CSWS or health professionals during the course of her pregnancy. The local authority was unable to undertake a pre-birth assessment.

c. The mother has a long history of being involved in a violent and damaging relationship with the father of the two youngest children. She has been unable to separate from him in the past.

d. The mother has a history of leading an unstable lifestyle evidenced by the children spending periods of time living in temporary accommodation and the lack of a consistent support network. She has not evidenced she has made any changes to her lifestyle.

e. In previous proceedings, the mother was diagnosed with Post Traumatic Stress Disorder and a course of cognitive behaviour therapy was recommended . This has not been undertaken.

f. In June 2015, the mother presented at the hospital expressing thoughts of extremely low mood. She failed to engage with mental health services offered to her.

g. The mother struggles to manage her finances and is in arrears in respect of her rent.

Decision

24. I now turn to consider what orders if any are in the best interests of A. I start 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, admittedly talking about adoption. Re B reminds us that orders which in effect mean permanent removal of a child from the care of a parent 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".
25. In reaching my decision I have taken into account that A's welfare 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 A. My decision inevitably involves an interference with the right to respect to family life. Having given very careful consideration to the orders I am going on to make, I am satisfied that those orders are in accordance with law, necessary for the protection of the children's rights and are proportionate.
26. I have also considered s2A Children Act 1989. I start from the position of course that it must be presumed that, unless the contrary is shown, that involvement of each parent in the life of a child will further the child's welfare. I remind myself that involvement here means involvement of some kind, either direct or indirect, but not any particular division of a child's time. A parent must be able to be involved in the child's life in a way that does not put the child at risk of suffering harm.
27. Although in this case no formal application has been made for a special guardianship order, no party raises objection to this. The possibility of such an order has been envisaged since early on in the case and no party has been disadvantaged by the lack of an application. This is particularly true given that X and Y are caring for E. The necessary information is contained in the local authority's final evidence and a support plan has been prepared. I am therefore content to proceed in the absence of such an application.
28. The key question for me is whether A could be safely placed with his mother or whether I should make a special guardianship order in favour of X and Y. I have to balance the pros and cons of each of the options. 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 checklist and propose to consider the evidence in the light of the factors.
29. A has all the obvious physical, emotional and educational needs that a child of his age does, being particularly vulnerable as he is such a young baby. He needs a safe and loving home environment in which all of his care needs are met. He needs stability and consistency in his life. He also has particular health needs as I have described.
30. It is important to consider any harm which A would be at risk of suffering. Given the findings I have made in respect of threshold, I am satisfied that A would be at risk of physical and emotional harm were he to be in the care of his mother, not least because I do not believe she will be able to maintain a separation from the father, whether or not she is not currently in a relationship with him. Even if she did there would be a huge risk of her forming another such relationship. I rely on the social work evidence and the psychological assessment in this regard.
31. The evidence I have read also satisfies me that the mother is not in a position to meet A's needs, given her own vulnerability and her mental health difficulties, all of which contributes to the chaotic lifestyle she leads. It is not even certain at this time that she will be able to keep the tenancy she has, a very basic requirement in terms of caring for her son.
32. The evidence is very clear though as to the quality of care that X and Y are giving to E and will be able to give to A. There is a particular advantage in this placement linked to X's employment. Normally I would not make a special guardianship order where a child was not already placed and so the placement had been tested. Here though I have all the evidence regarding X and Y's care of E and that gives me confidence as to A's future were he to be in their care, including their ability to manage contact.
33. The final factor I must consider is the likely effect on A of any change in his circumstances. The reality is he will have to move whatever order I make, whether that were to the care of his mother or X and Y. Even a decision that long-term fostering was right would mean a move as his current placement is a short-term one. Whilst I do not underestimate the impact on A of leaving the care of the only person he knows as his primary carer, particularly given what I have read in the social worker's final evidence, I am confident the social worker and his foster carer will manage this in the best possible way for him. I have considered the local authority's transition plan which seems a sensible balance between testing things out while not dragging it out unnecessarily.
34. So I turn to the options before me today. For reasons I have already given it would not be safe for A to be placed in the care of his mother due to her lifestyle and history of unsafe relationships. Long-term fostering would not be an appropriate plan given A's age. As the guardian says in her report, it would not offer the level of permanent family life which such a young child needs in order to have the opportunity to develop a secure attachment and thrive developmentally.
35. Everything I have read about X and Y makes me satisfied that a placement with them, secured by way of a special guardianship order, would be in A's best interests. It would mean him being placed with his brother, with whom he will have a lifelong relationship, in a secure and loving home where all his needs will be met. The special guardianship order will enable his carers to exercise their parental responsibility over and above that of his mother if necessary. I am satisfied they will promote contact in accordance with A's needs and I agree with the guardian that no child arrangements order is necessary. More commonly one would support a special guardianship order with a supervision order, but here I accept it is not, X and Y having already demonstrated with E their ability to look after a child and their willingness to engage with contact arrangements.
36. Having conducted the required balancing exercise, I am satisfied that the local authority's final care plan for A, including arrangements for contact, is proportionate and in the context of s1(1) Children Act 1989 in his best welfare interests. I make a special guardianship order in respect of A in favour of X and Y. I direct that a copy of this judgment should be provided by the local authority to X and Y. I reserve any future applications in respect of A to myself and I make a public funding direction as necessary.
THRESHOLD AS FOUND BY HHJ LYNCH – 27.1.16

a. The mother has had four older children removed from her care. The most recent proceedings concluded in July 2014.

b. The mother failed to engage with CSWS or health professionals during the course of her pregnancy. The local authority was unable to undertake a pre-birth assessment.

c. The mother has a long history of being involved in a violent and damaging relationship with the father of the two youngest children. She has been unable to separate from him in the past.

d. The mother has a history of leading an unstable lifestyle evidenced by the children spending periods of time living in temporary accommodation and the lack of a consistent support network. She has not evidenced she has made any changes to her lifestyle.

e. In previous proceedings, the mother was diagnosed with Post Traumatic Stress Disorder and a course of cognitive behaviour therapy was recommended . This has not been undertaken.

f. In June 2015, the mother presented at the hospital expressing thoughts of extremely low mood. She failed to engage with mental health services offered to her.

g. The mother struggles to manage her finances and is in arrears in respect of her rent.