England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT T BRISTOL

		Bristol Civil and Family Justice Centre
		12th December 2016

HHJ Wildblood QC:

1. With the support of the guardian Gloucestershire County Council applies for care and placement orders in relation to a three year old boy to whom I shall refer as C. Bravely, C's mother, who is aged 24 and is referred to as 'A' in this judgment, has stated that she is in not in a position to oppose the Local Authority's applications; at a hearing on 2^nd December 2016 she indicated through her solicitor that she would not wish to attend this final hearing.
2. On 2^nd December 2016 C's father ('B'), who is aged 33 and lives separately from the mother, attended the court having disengaged with the proceedings and from contact with C since September 2016. He has not filed evidence, despite orders that he should do so and he has not kept in contact with his solicitors. On 2^nd December 2016 he indicated that he wished to oppose the Local Authority's applications and sought orders for C to live with him. It is with regret that I have to record that the father has not attended this final hearing on 12^th December, despite knowing about it (not least because I told him of its date, venue and time when he attended on 2^nd December 2016). His counsel, Mr Hodge, has prepared the case fully and has made some very accurate submissions about its state.
3. There was nothing more that Mr Hodge could do for his client at this hearing, however. I waited until 10.45 a.m. before starting the case and have given this judgment in the afternoon of the first day of the hearing. The father has not made any communication to explain his absence or shown any intention of attending. He has made no proposals at all as to how he might care for C, has not seen him now for three months and faces evidence from the Local Authority and the guardian to the effect that he cannot care for C adequately. Faced with that weight of unchallenged evidence from the Local Authority and the absence of the father and mother, there is in reality no basis upon which I could do other than make the orders sought by the Local Authority.
4. In my opinion this is a desperately sad and unfortunate case. It began on 17^th December 2015, almost exactly a year ago. The Local Authority had been involved with the mother, on and off, throughout C's life and there had been a family crisis in May 2015 which led to the Local Authority's heightened involvement. Why it took seven months after May 2015 to initiate these proceedings is not clear. Why it took twelve months for this case to reach final hearing is clear but, in my opinion, is not satisfactory. This is exactly the sort of case that could and should have been dealt with in 26 weeks from the date of issue in accordance with section 32 (1)(b) of The Children Act 1989. The greatest sadness, in my opinion, arises because there are positive reports of this father as a father within the paperwork and he maintained regular and positive contact with C (with some gaps) for over a year.
5. Law – This case involves the following key legal considerations:

i) Nature, law and common sense require that it be recognised that the best place for this child to live is with one of his natural parents unless proven and proportionate necessity otherwise demands. Society must be prepared to recognise that there is a wide range in standards of parenting and the court must not apply the yardstick of optimal parenting. It is only if the circumstances of the case are exceptional that children will be removed from their parents under care and placement orders or, to put it another way, the making of the orders sought by the Local Authority is confined to circumstances where no other realistic solutions consistent with C's welfare are available.

ii) Before the court could consider making a care or placement order the threshold criteria in section 31 of The Children Act 1989 must be fulfilled. It is agreed, in this case, that they are fulfilled on the basis that, at the time and in the circumstances of the issue of the proceedings, C was living within the maternal family in circumstances where he was suffering significant emotional harm and was likely to continue to do so. I will describe this in more detail below.

iii) Article 8 of the European Convention on Human Rights is heavily engaged in relation to both of the Local Authority's applications. Care and placement orders involve a very significant invasion of the rights of these parents and this child to a family life together. That invasion can only be justified if it is a) necessary, b) proportionate to the proven circumstances of the case and c) in accordance with the law.

iv) The domestic law of this country is to be found in s31 of The Children Act 1989 (the threshold criteria to which I have already referred), section 1 of the Children Act 1989 (the welfare provisions of the 1989 Act relating to the care application) and sections 52 and 1 of the Adoption and Children Act 2002 (relating to the placement application).

v) It is not clear whether the father has parental responsibility in law; I asked about this and was told that the position was not known. That is also unfortunate because, unless those with parental responsibility consent to C being placed for adoption, the court must dispense with that consent under section 52 of the 2002 Act if it is to make a placement order. I have therefore assumed that both parents have parental responsibility.

vi) Section 52 (1)(b) of the 2002 Act, which permits the court to dispense with relevant consent where the welfare of the child so requires, has been interpreted in cases called Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625 and Re B-S (Adoption: Application of s47(5)) [2014] 1 FLR 1035 in terms that are summarised at page 285 of the Red Book and which I will not repeat here. However, the test is anything but a lightweight one and is an important aspect of our law. The word 'requires' has a connotation of the imperative meaning that the child's welfare throughout his life requires adoption as opposed to something short of adoption.

vii) Section 1 of the 2002 Act contains the welfare provisions of that Act by which the welfare of C, throughout his life (I emphasise those words again), is the paramount consideration of the court. The application for a placement order overshadows the application for a care order and, therefore, the main welfare determination needs to be made by reference to the provisions of that Act and, in particular, the more stringent welfare checklist in section 1(4) of it.

viii) In considering the competing options for C's future the court must carry out an holistic or joined-up evaluation of them, weighing up the pros and cons that they represent. It is obviously wrong to look at the options one by one (in what lawyers have come to call linear analysis) because that can lead to a mistaken result where the order that is most invasive of family life is made by default.

ix) In considering the care that a parent might be able to provide for a child it is important to recollect the concept of parenting with support. The President stressed the significance of the concept in a reported case called D (A Child) (No 3) [2016] EWFC 1 in which he referred to the decision of the then Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. The very purpose of the welfare state is to provide support for those in need (as was said in Soares de Milo v Portugal, ECHR, Requête no 72850/14, para 106). The Local Authority must place evidence before the court of the support that is available to parents so that the court is then able to make a satisfactory welfare evaluation – Re W [2013] EWCA Civ 1227.

6. I have repeated those principles, which any judge at my level has to apply frequently, because I wish to emphasise the importance of the decisions that are being taken in relation to C within these proceedings. The decision that is taken today will affect C for the rest of his life and is also definitive of the roles that his natural parents will play in his future. What is more, C may want to read this judgment himself in later years, along with the rest of his adoption file; I get frequent applications to that effect. If he should do so it is important that he should be able to see just how seriously these applications have been taken.
7. Background - For the first two years of his life C lived with his mother but also spent a lot of time with his maternal grandmother. The Local Authority Children's services were heavily involved in trying to support the mother and her family in caring for C. However at the mother's home C experienced chronic and profound neglect, a very poor home environment, exposure to the mother's unsafe associates and to her misuse of drink and drugs. There is a full summary of just how bad things were at C79 of the bundle and I do not need to repeat it here.
8. The position at the maternal grandmother's home (where the maternal aunt also lived) was not much different according to the evidence in the bundle in front of me. At C79 it is said: 'The grandmother's house has been observed to be cluttered, chaotic and untidy with an adult rated violent TV programme on the television…[The playing space] is shared with the dogs feeding area, resulting in it being very dirty and unhygienic. Furthermore the play space has been observed to have dog faeces in it. Since C has resided there the cleanliness of the home condition has deteriorated dramatically…'
9. On 11^th May 2015 the mother, A, was arrested for conspiracy to commit a burglary but remained on bail. The chronology is far from clear from the paperwork but it seems that it is then that C went to live with the maternal grandmother and the maternal aunt. He appears to have remained there until December 2015 when these proceedings were started.
10. When these proceedings were eventually started in December 2015, C was placed with the maternal aunt together in foster care. The aunt was not able to care for C adequately and so she left the foster placement in April 2016 with C remaining there ever since. Thus C has lived with his mother, his grandmother, his aunt and with foster carers by this stage. He has now been with his current foster carers for 12 months and, as I will set out later, that placement has not been without its own difficulties for C and the foster carers. It was always known that the placement with those foster carers was a temporary arrangement whilst this case was being decided. He has had a very unfortunate start to his life.
11. It appears that C's father, B, was not involved with him at all for the first two years of his life but, in July 2015, began to have contact with him twice a week. On the whole he stuck to that contact arrangement until September 2016 when the relationship between the father and the Local Authority broke down. Thus the father was having contact for 14 months and, on the whole, that contact was relatively positive.
12. In February 2016 there was a parenting assessment of the father. That assessment was obtained, therefore, seven months after the father had begun to restore his relation with C. It concluded [C116] that the father can 'meet the basic needs of C including play and stimulation and the father has taken some advice from professionals. There are, however, concerns about whether the father can meet the emotional needs of C and act protectively…and the father remains having contact with the maternal grandmother…further assessment is needed…' Concerns were also raised because the father has another child, G, whom he was not seeing at the time of the assessment [C170-1], although it has subsequently become clear that the father saw her in February [E17]. I do not know the current state of his relationship with G.
13. In the first half of 2016 the mother was sentenced to ten months imprisonment for handling stolen goods [C155] following her arrest for conspiracy to burgle in May 2015. The effect was that the mother was in prison until October 2016 and further assessment of her did not take place (although there had been some limited assessment of her before she was imprisoned).
14. In July 2016 the psychologist, Dr Gillian Evans, began her assessment of the father and his relationship with C. She has filed two reports – the first is dated 29th July 2016 [E1] and speaks positively of him. In that first report she stated (in terms that are not always grammatically correct):

i) 'C's primary attachment figure would appear to be his father…C benefits from the individual attention that his father is able to offer to him. A style of parenting that is predominantly authoritative although occasionally more authoritarian and/or can be overly directive. A style in which warmth and affection-giving, praise and shared enjoyment, pleasure is evidenced' [E6].

ii) 'C's least secure behaviour is displayed within the foster care context' [E6]. Dr Evans then goes on to describe the disruptions that C experienced in the foster home with the aunt departing and other children coming into the home. She gives further detail of this in the addendum to her report at E56.

iii) C has a full scale IQ which is within the average range (scoring 92) [E7]. Dr Evans did not consider that he showed signs of global developmental delay.

iv) The father's full scale IQ also fell within the average range.

v) The father reported that he had used cannabis since the age of 14 or 15 [E12] but had only used cannabis 'very occasionally' since January 2016 [E12]. He said that he had used cocaine very occasionally in the past and, at the time of the assessment in July 2016, he said that he had last used it 'a few months ago on his birthday'. He has misused alcohol since his teenage years but told Dr Evans that he did not consider that he still had any problems with excessive drinking [E13]. On 2^nd December 2016 the father agreed to undergo further testing for drugs but has not done so and so the current position is not known.

vi) Overall Dr Evans said that the father 'did not identify significant risk factors that would negatively impact upon his prospective ability to care for C during and through to his minority' [E15].

vii) She formed a positive view of C's ability to form attachments to the father and said that she did not identify any significant concerns in relation to the father's emotional warmth, affection giving and affection receiving in relation to C [E15].

viii) She considered that the father was able to offer C good enough parenting and did not require specialist professional support in meeting C's current needs [E16]. She also considered that the father had the ability to understand the Local Authority's concerns regarding his approach to C's emotional needs. She was also of the opinion that the father has the ability to act as a protective parent [E18].

15. On 5^th September 2016 Dr Evans wrote an addendum to her report [E50] in which she expanded upon her previous opinions. The further report was prepared as a response to specific questions as approved by the magistrates and proposed by the Local Authority and guardian in which the point of view of the Local Authority was put to the expert in very strong terms with the intention of challenging her first report. Dr Evans said:

i) Whilst the father can display empathic care-giving in terms of affection and comfort, his play / interaction with C tends to be quite task / action-focussed. She says: 'whilst record of contacts are generally positive, father and son enjoying the time spent together, the father appears to have difficulty in taking responsibility for and appreciating how cancellation of contact may make C feel…The father does not appear to appreciate the negative impact upon C of exposing him to his rudeness and conflict with supervisors or the poor role model he is setting'.

ii) If C displayed very difficult behaviours in the future, the father 'is more likely to have difficulty managing such behaviour. Such behaviour could cause him to become angry, punishments could be excessive or the reverse, the father could withdraw from C with a breakdown of communication, lack of support offered by the father, or a combination of both'.

iii) The father seemed to show poor emotional insight into the possible trauma that exposing C to his former home with the maternal grandmother could have [E59].

iv) The father would benefit from counselling to help him deal with stress and issues from the past. Dr Evans thought that the father was likely to be resistant to engagement in counselling [E60].

v) The father showed quite good insight into his past misuse of drink and drugs but Dr Evans expressed concern at his over optimism that he would be so busy and fulfilled with C that he would not revert to drink or drug taking [E61].

16. On 22^nd September 2016 the case came before the magistrates and they adjourned it into my list on 27^th September 2016 out of concern at the delays that had arisen. On 27^th September 2016 I ordered that there should be a parenting assessment of the mother and recorded, by agreement, on the face of the order that no such assessment of the mother had taken place up to that point [B86]. I regarded the reasons for that absence to be inadequate (the mother was advancing herself as a carer of C at that time).
17. There had also been an application by the Local Authority for the father's contact to be suspended. That application was stated to be made because:

i) The father went with C (who was on a scooter) down a path away from the contact centre on one occasion in September and the contact supervisor felt it necessary to insist that he should return to the centre.

ii) At the same contact session the father was noted to be recording events on his mobile phone and told the supervisor that he did this regularly and put it on the internet.

iii) The father recorded a care review meeting in September and apparently took the diary of the IRO (Independent Reviewing Officer) and a set of confidential papers.

18. It appears that it is at this point that the father disengaged. Although the order of 27^th September 2016 provided for the father to continue to have contact twice a week under increased supervision, he has not taken up any contact at all.
19. On the 7^th October 2016 the mother was released from custody and the Local Authority began its parenting assessment of her which it submitted on 15^th November 2016. The report of the social worker concluded that the mother could not care for C adequately and lacked motivation to do so. At the hearing on 2^nd December 2016 the mother decided not to challenge that conclusion.
20. On 8^th December 2016 the guardian's report was written. The guardian has also encountered difficulty in securing the engagement of the father since September. She expressed her opinion that the father is unpredictable in his behaviour, is not a good role model for C, is not open and transparent and mistrusts professionals. She considers that the father does not have the emotional maturity to understand C's emotional needs. Her report recommends that care and placement orders should be made.
21. Analysis - The above represents the very unfortunate procedure that has unfolded in relation to C and upon which I do not think that it is necessary for me to comment further. In my opinion it is obvious now that C's welfare throughout his life requires that he be placed for adoption. Nothing less than that will do although, as Mr Hodge observed, it may not be a straightforward task for the Local Authority to find him an adoptive placement now given the extent of his difficulties, the fact that he has been with the current carers for so long, his existing attachments and the unsettled life that he had before moving to foster care.
22. Looking at matters holistically, although adoption means that he will lose his place within his natural family, neither fostering nor a placement within his natural family would meet his needs. Fostering would mean that he would remain in care and would never know permanence within a substitute family. Fostering would end when C reached majority, would allow for applications to be made in relation to him by his natural family and leave him subject to the dominant parental responsibility of the Local Authority in which personnel will inevitably change. It would also leave him subject to the inevitable stigma, for instance at school, of being in care.
23. It is deeply regrettable, in my opinion, that it has not been possible for C to find a home with his parents, especially his father in the light of the positive aspects of the reports about him. However the only available solution now means that C will have to cease being a member of his birth family and become the legitimate child, in law, of adopters if this can be achieved. The task will not be easy for adopters, however since C has formed a relationship with his mother, grandmother, aunt, foster carers and father during this very delayed procedure. He is now of an age where his experience of those relationships will inevitably impact upon his own emotional make-up in the future.
24. C has suffered harm in the past when in the care of the maternal family and would be at risk of suffering further harm if committed to the care of a father who has not planned for his future, shown consistent commitment to him or shown sufficient understanding of what he needs.
25. C is also at real risk of emotional harm in the future if supportive and therapeutic measures are not put in place to help him settle into a new placement and mitigate the damage arising from the loss of his relationships with his family members and foster carers. Very sadly C's relationship with his parents cannot continue in these circumstances and his father appears now to have withdrawn from him. Having only met the father briefly I cannot say for certain but I anticipate that at least part of the difficulty for this father is that he has become frustrated and disillusioned by this delayed procedure and the response to the report of Dr Evans.
26. It is therefore with profound regret that I consider that there is now nothing else that can be done other than to make the orders sought by the Local Authority. I dispense with the consent of both parents to the placement of C for adoption on the grounds that C's welfare so requires. I make a placement order in relation to him and I make an underlying care order. I approve the care plan which proposes indirect contact only under the 'letterbox' scheme.
27. I will publish this judgment on Bailii under the guidance issued by the President in relation to transparency in the Family Court.

HHJ Stephen Wildblood QC

12^th December 2016.