England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: S (CHILDREN)

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		15th December 2016

JUDGMENT

HER HONOUR JUDGE HUDSON:

Introduction

1. I give this judgment at the conclusion of proceedings concerning A, aged 10, and B who is 7. These long running proceedings started 17 months ago in July 2015. They are themselves the latest and, it is hoped, last instalment of proceedings dating back to 2009, when A was 2 or 3 and the year B was born. The children are presently living together with local authority foster carers. The principle issue for my determination is whether, in accordance with the local authority care plan supported by the children's guardian, the children should remain in local authority foster care but placed separately, or whether the children should be placed together in the care of their father. The local authority does not support direct contact between the children and their parents and seeks orders authorising a refusal of contact between them.
2. Before addressing the issues which are directly relevant to the planning for the children, it is necessary to record in outline the circumstances which have given rise to the applications now before the court.

The Background

3. The parents of A and B are M and F. Their relationship was longstanding but volatile and, on all accounts, characterised by domestic abuse between them (although they each place responsibility for this on the other). Following A's birth in 2006, she was made the subject of a child protection plan in 2007 under the category of neglect in the light of the relationship between her parents, and issues of substance misuse and their criminality. In late 2008 A was cared for by her maternal grandmother (MGM) before returning to her mother's care. B was born in 2009 and placed in foster care. A is recorded to have spent a further period in the care of her maternal grandmother.
4. In 2009 care proceedings were issued for the first time. The local authority plan was for adoption, but the children's guardian recommended rehabilitation to the care of the mother. In January 2010 the Family Proceedings Court rejected the local authority's plan of adoption and approved rehabilitation to the mother subject to a four-month supervision order. The children returned to the care of M; F was also part of the household for some of that time.
5. In November 2011, M and F separated. They each made private law applications which included allegations of domestic abuse and drug and alcohol misuse. On 3^rd April 2012 a finding of fact hearing took place in injunction proceedings brought by M against F, with judgment finally given on 10^th May 2012. That judgment is included in the case papers before me. It is clear that the deputy district judge who heard the case did not accept the allegations made by M against F and discharged the order which had been in place since 30^th November 2011 (when made without notice).
6. Care proceedings were issued for a second time in 2012. The children were removed from the care of M in June 2012 and placed with foster carers. F is variously described as having his last contact with the children in 2011 and 2012. The children changed both placements and school in October 2012 as a result of threats from M. The children were then placed with foster carers with whom they remained for about two and a half years until January 2015. The care proceedings came before District Judge Stapely for final hearing. He gave judgment at the conclusion of the final hearing on 29^th November 2012. His judgment is also included in the case papers.
7. At that final hearing, M was not putting herself forward as a carer for the children, but F was. The local authority plan was for adoption. At paragraphs 12 and 13 of his judgment, the district judge recorded what he found to be F's limited commitment to the children (failing to send cards and presents for the children's birthdays and failing to seek contact through the local authority) as well as his failure to cooperate with the local authority and the children's guardian in their assessments and enquiries.
8. The district judge dealt with F's application to care for the children at paragraph 14. He found that his focus in the local authority's assessments had been his relationship with M. The district judge found that F's plans were not thought through, he found the plans to be incoherent and not in the children's best interests. He concluded that F did not take responsibility for his own actions and blamed others instead. The district judge made care orders approving the care plan of adoption with indirect contact. He made placement orders dispensing with parental consent.
9. M had her final contact with the children in February 2013. No final contact was arranged between the children and F. District Judge Stapely did not agree with F's request for such a visit in the light of the long break since contact had taken place. The judgment also recorded that A, then aged 6, did not want to see her father.
10. In 2014 prospective adopters were identified for the children, Mr and Mrs X. They were matched with the children in December 2014. The children were placed with them in January 2015. Within a matter of weeks concerns were being raised about the placement. The circumstances of the children's placement with Mr and Mrs X, which ended in August 2015, have not been the subject of the evidence before me. I do not make any determination of the issues recorded in these circumstances, but simply record that a range of professionals raised significant issues about the ability of Mr and Mrs X to meet the children's needs and to work with professionals.
11. In June 2015, the Xs said they were unable to continue to care for A but were keen to continue caring for B. In July 2015 a professionals meeting concluded that the children should remain together and would therefore both be removed from the Xs. The Xs were served with the relevant notice. This was overtaken by the issue of care proceedings by the local authority and an adoption application by the Xs in respect of B only. The notice which had previously been served pursuant to section 35(2) was withdrawn.
12. On 28^th August 2015 the Xs contacted the local authority and said A could no longer remain in their care and requested her immediate removal. An emergency placement was identified for her with a single female carer. The case papers include detailed descriptions from the local authority of the events that day which ultimately led the local authority to remove both children. Once again, it has not been relevant to hear evidence about these events.
13. The local authority's case is that the children, and particularly A, were subjected to an episode which was highly damaging to their emotional wellbeing. Both A and B were removed from the Xs and placed together in the placement previously identified for A alone. Following their removal from Mr and Mrs X, both A and B made allegations to the foster carer and social workers of wide-ranging physical and emotional abuse while in the care of Mr and Mrs X. In October 2015 the foster carer gave notice to the local authority that she was no longer able to care for the children and meet their needs. The children moved to a foster placement on 23^rd October 2015 in which they have remained.

The Proceedings

14. The case management directions in the care proceedings included the joint instruction of JS, a child psychologist, to undertake an assessment of the children including their placement together or separately, the appropriate form of placement, whether together or separately, and their attachments to the Xs. JS's first report is dated 15^th October 2015. She questioned whether A and B could successfully be cared for together and gave her opinion regarding a range of placement options.
15. JS provided an addendum report in January 2015 to take account of further assessments which had then been concluded and the children's then circumstances having been placed together with their foster carers then for three months. The assessment recorded questions about the carers' ability to keep B safe, because of A's behaviour towards him. The foster carers had indicated that they then needed a further three months before committing to the care of one or both of the children, because of what they considered to be the children's needs. JS said the foster carers showed insight into the children's needs and that they had the appropriate skills and support to manage the difficulties in the children's relationship.
16. She recorded that the foster carers were nonetheless unable to prevent B from being mentally, emotionally and physically abused by A. JS's report contemplated the separation of the children, but proposed a three-month delay to see whether these foster carers would be able to care for the children together. A further report from JS dated 15^th April 2016 reported positively in respect of the improved relationship between the children and with A generally. The foster carers were then offering to care long-term for both children, which was supported by JS. On 30^th May 2016, JS provided a further addendum which focused on the question of contact.
17. Independent social work assessments were also directed in respect of each of the birth parents, to be undertaken by a highly experienced independent social worker, ISW. In each case, having conducted a thorough assessment, she reached a negative conclusion.
18. The position of the parties crystallised at a hearing before the court on 27^th June 2016. The local authority plan was for the children to remain together in long-term foster care with their current carers. The children's social worker, SW, was a strong advocate for the children's continuing placement together. The local authority had issued applications for revocation of the placement orders in accordance with this plan. The local authority proposed indirect contact between the children and their birth parents and Mr and Mrs X.
19. Mr and Mrs X were no longer putting themselves forward as carers for the children. They were given permission to withdraw their adoption application in respect of B. They agreed the local authority's plan in respect of the children's placement and the proposal for indirect contact and life story work to be undertaken. Mr and Mrs X were discharged as parties to the proceedings.
20. At the hearing in June 2016, M was not putting herself forward as a carer for the children. She agreed with the local authority plan for placement and did not oppose the making of an order pursuant to section 34(4) of the Children Act 1989 authorising a refusal of contact between her and the children once the care orders revived.
21. F was putting himself forward as a carer for the children, in default of which he supported their continuing placement with their foster carers with direct contact between the children and himself.
22. The children's guardian, CG, supported the local authority plan in respect of placement, contact and life story work. A contested final hearing was evidently required. It was not then contemplated that M would play a part in that hearing - the order in June 2016 recorded that she did not intend to attend a further hearing. The case was listed before me for final hearing on 5^th December 2016. Further case management directions given in September 2016 included the preparation of an addendum to the independent social work report in respect of F, as he was then putting himself forward as a joint carer with his partner, Z. This additional addendum assessment was completed on 26^th October 2016 and also reached a negative conclusion.
23. The case first came before me for hearing on 24^th November 2016 for an Issues Resolution Hearing in advance of the final hearing. There had been a number of significant developments. On 14^th November 2016 the foster carers gave 28 days' notice to the local authority that they could no longer care for both children. It is clear from the evidence that this did not arise out of a placement breakdown precipitated by a particular event or events, but rather reflected the conclusion the foster carers had reached that the children's needs could not be met in a placement together.
24. The local authority's care plan was therefore revised to separate placements with long-term foster carers, with a new placement required for A while the local authority proposed that B would remain with the current carers. In response to this, the position of the other parties was as follows:

i) M attended the hearing and said she once again wished to be considered as a carer;

ii) F continued to seek placement of the children in his care; he was opposed to their separation;

iii) The children's guardian supported the local authority's revised plans;

iv) MGM, the maternal grandmother, accompanied M and sought party status and further assessment as a carer. She had previously been negatively assessed by the local authority and had not challenged that assessment in accordance with the direction of the court. During the course of the hearing before me, it became clear that M and MGM were, in fact, putting forward a joint case for the children's placement with MGM. They both opposed the separation of the children;

v) I also received a letter from the solicitors for Mr and Mrs X informing me that they were considering making an application to re-join the proceedings with a view to resuming B's care, as the local authority was now pursuing separate placements for the children.

25. I did not consider the test for MGM to be joined into the proceedings was met in circumstances in her position was represented by the case put on behalf of M. I did not join MGM to the proceedings but provided disclosure of relevant documents to her and directed that she would be entitled to be present during the course of the hearing. I similarly approved the proposal that Z would also be present during the hearing with F. In the case of the Xs, I directed that any application by them was to be made by a specified date; none was made.

The Final Hearing

26. In the event, on 5^th December 2016, I was told that the position of M and MGM had once again changed. They were no longer putting forward any case to care for the children. While M opposed F's application to care, she did not wish to participate in the hearing so she, MGM and Mr Duffy, representing M, withdrew. F was, as anticipated, accompanied by Z at the final hearing. His position remained unchanged.
27. The case was listed for a three-day final hearing. On the first two days I heard evidence from SW, from ISW and from F. On the third day I was due to hear evidence from Z, followed by the children's guardian. Although she had been at court with F on the first two days, Z did not attend the hearing at court on the third day. At the start of the hearing, Mr Rowlands, representing F, told me he was no longer in a position to call Z and read me the written instructions he had from F, which were as follows.

"Following yesterday's adjournment she expressed the view there was no realistic chance he would get the children back. She therefore informed him that it was pointless her giving evidence. She was very upset about having made the decision. He, F, contacted her this morning from the court. Mr Rowlands witnessed the conversation with her. Z was upset about her decision but does not seek to give evidence. F does not share that view. They have a different view about his prospect of success and F says that Z still supports him. She does not think her evidence will assist. She thinks there is no realistic chance the court will support F."

28. I therefore proceeded to hear the evidence from the children's guardian and submissions. It was not possible to give judgment on that day in the time available with my other court commitments. I therefore give judgment today, 15^th December 2016, which has been the first opportunity convenient to the court and to Mr Rowlands, representing F.

The Legal Framework

29. The children are currently subject to placement orders. All parties agree this no longer provides the appropriate legal framework. No party proposes adoption for either child. The local authority has applications to revoke the placement orders pursuant to section 24 Adoption & Children Act (ACA) 2002 before the court. All parties support the revocation of the placement orders. Section 1 of the 2002 Act applies when determining these applications. The children's welfare throughout their lives is my paramount consideration and I have regard to all matters in section 1 of the Act, including the welfare checklist in section 1(4).
30. In the event the placement orders are revoked, the care orders in respect of A and B revive in accordance with section 29 of the Adoption & Children Act 2002. The local authority seeks section 34(4) orders under the Children Act (CA) 1989 authorising a refusal of contact. In determining this application, the welfare of the children is my paramount consideration in accordance with section 1 of the 1989 Act, including the welfare checklist in section 1(3).
31. F puts himself forward as a carer for the children and therefore seeks discharge of the care orders. Mr Rowlands accepts the burden is on him to prove his case. Once again the welfare of the children is my paramount consideration and the welfare checklist in section 1(3) applies.
32. While accepting it is for F to prove his case in relation to the discharge of care orders and placement of the children in his care, Mr Rowlands makes the point that the local authority plan is now, for the first time, for the separation of the children. As I made clear to Mr Rowlands, if I came to the conclusion that the balance in terms of the placement options was so fine that it would or could be affected by who bears the burden of proof on the balance of probabilities I would alert him to this. That has not proved to be so.
33. The court must consider the realistic placement options, balancing the positives and negatives of each in the light of my assessment of the children's welfare needs. Having done so, I must undertake a proportionality evaluation to determine whether the interference with article 8 rights is justified.

My Welfare Analysis

34. It is evident from what I have already said that A and B have already had a significantly disrupted life to date which has adversely affected them. They both have an urgent need for permanence and security. The children are not aware there are care proceedings ongoing, of the prospect of A being moved or that F is seeking to care for them. They have in my judgment rightly been protected from this uncertainty. They do know that they are not returning to the Xs and are both reported to be happy about this.
35. Whilst B says he is happy in his placement with the foster carers, A is aware that her behaviour is causing problems and reflects her overall unhappiness. SW said the only time that A is able to relax within the placement is after B has gone to bed, when she can benefit from one-to-one time with the foster carers. Despite her evident difficulties, A says she likes her current carers and has not identified specific negative features relating to the placement or their care.
36. The children have not had a relationship with F for many years; they are reported to have negative memories. F places responsibility for this on M, who he says poisoned the children against him. Both A and B are bright children who are doing well at school. School is seen as a positive environment for them by the local authority and the children's guardian. They have both made excellent progress in the time they have been at their present school. The local authority places considerable reliance on the benefit of this educational placement, so that the search for a placement for A is limited to ensure she can continue to remain at this school for the rest of this academic year before she then transfers to secondary school.
37. Both children have significant emotional and social needs as a consequence of their life experiences to date. The local CAMHS or CYPS services are involved with directing work being undertaken by A, which is expected to be a long-term involvement. A and B have experienced many changes, often unplanned, in their young lives. Further change is inevitable: their current carers do not consider they can continue to care for both children. The local authority's plan would involve a move for A which will have a significant impact on these children who have grown up together to date; a move to F's care would involve reintroducing him after a gap of many years in their lives.
38. Both A and B are described as likeable and lovely children despite the challenges A, in particular, presents. They have experienced significant harm which led to the care orders and placement orders. The court has not made findings in relation to the events leading to their removal from the Xs but, even without determination of the issues, the moves the children have experienced have caused further harm.
39. There is no risk-free option for the children for the future. The local authority accepts the children will experience emotional harm by their separation but argues that the current situation is harmful to them both emotionally and also, potentially, physically. The local authority and the children's guardian argue that a move of the children to their father involves a high risk of significant harm to them. I turn to my consideration of the placement options in the light of these factors.

The Local Authority's Plan for Separate Foster Placements

40. Until October 2016 SW was a strong advocate for the continuing placement of the children together. She says in her evidence that she concluded the difficulties reported by the Xs could not determine the planning for A and B without the opportunity to test out their relationship in a different environment. SW said the current foster carers are very experienced and highly skilled but they have ultimately concluded that the children's needs cannot be met in a placement together.
41. Because of the relationship B has formed with them in contrast to A, together with the prospect of their wish to take other placements into the family, the foster carers propose to continue as long-term foster carers for B. Their position in relation to timescales was clarified during the course of the hearing: they do not require A to be removed from their care until an appropriate placement is found for her. SW has been the social worker for the children for a period of approaching four years. She is clearly highly committed to them and, I accept, will undertake a thorough search for suitable carers if a move for one or both children is approved.
42. If the children are separated, SW says the placement would have to be within the catchment area for the school and within travelling distance for the local CYPS. The local authority proposes very regular contact between the children, themselves. They currently attend the same school, although that will change in the summer of 2017. The advantage of the local authority's plan is the children's continuing placement with professional carers who should be well placed and matched to meet their respective needs. Provided the local authority adheres to the commitment in respect of location, the children will not suffer disruption in education or therapeutic and social work support.
43. The risks or disadvantages of the proposal are the impact of separation and the inevitable feelings of loss the children will experience. The local authority does not currently have a placement for A to move to, so all aspects of the placement remain open to speculation and cannot be guaranteed. On all accounts, separation will be upsetting for both children, and for A in particular, and cause the children further emotional harm.

Placement with F

44. F has had no relationship with the children since 2011 or 2012. He accepts that any move to his care would not be immediate - he said over a period of three to six months. F did not foresee difficulties in the children being together or with him. He expressed confidence that, as their father, the behavioural difficulties would not cause him difficulty and, if they did, he would manage them with or without assistance. F said he would cooperate with CYPS, although he showed no real knowledge or understanding of their role. He accepts that he has not worked positively with professionals in the past, but said he could be relied upon to do so in the future. He attributed his past difficulties in doing so to the attitude of the professionals who he said were intent on dragging him down. He agreed that he has said that professionals are all "bent" and maintained that most of them are.
45. F put himself forward as a carer with Z. She is undoubtedly a positive influence in his life. They live together with her son Y. F said he did not think that the placement of the children with him and Z would have a negative impact on Y or his children. In addition to Y, Z has older children who do not live in her care. There is further information relating to their circumstances in the independent social work assessment.
46. F was asked about information from the police relating to a callout in September 2016 following a dispute between him and Z. Although she did not ultimately pursue a complaint, both F and Z agree she called the police after they had a disagreement about the need for F to take part in assessment work by the local authority for the area in which they now live in respect of his involvement in her life and therefore in the life of Y.
47. When being asked about this episode, F willingly expanded and gave detailed evidence of threats and attacks he has been subjected to in recent months by and through one of Z's former partners. This included what he said was a man coming to his house with a gun and a separate serious attempt to run him over in the street. F agrees he has a long criminal history and is frequently arrested but emphasises the limited convictions he had, the fact that many are now old and not for some of the extremely serious offences for which he has been arrested.
48. F agrees that his relationship with M continues to be hostile. That was immediately apparent at the Issues Resolution Hearing when, on all accounts, they were overtly hostile and antagonistic to each other in the court room before the hearing started.
49. It was after F completed his evidence that Z failed to attend the hearing the following day in the circumstances I have already described.
50. Alex Scoffin gave her evidence before F and so was not able to respond to the new issues raised by him, in particular those relating to the targeted attacks upon him in the community. Alex Scoffin's evidence was balanced and generous to both F and Z, giving credit for progress in F's life and the support that Z provides for him. She was clear that they were both fully cooperative with her in the course of her assessment work. She, nonetheless, concluded that the risks in a placement with F, with or without the support of Z, would be too great. Her final conclusions are set out at E241 to E242, to be read in the light of the conclusion that she reached in respect of F alone at E175 to E176.
51. In addition to the matters already alluded to, F told Alex Scoffin of the breakdown he experienced when the children were previously in his care and the risk of a recurrence if the children were placed with him once again. She considered F lacked insight into the impact of this and the problems he would experience caring for the children. Her second report recorded her view that F and Z lacked insight into the difficulties the children have and the difficulties that they would experience in caring for them. She concluded that they could not provide the high standard of care which she considers is required for A and B.
52. The obvious advantage for the children in the case which is put by their father is the prospect of care within the birth family. The value of a birth family placement is clear, where that can meet the child's overall needs including - of course - the need for a child's identity. This requires the parent or carer to be able to understand the child's needs and to be able to meet those needs consistently.
53. The risk of a family placement is the prospect that it cannot meet the children's needs so that they suffer further harm. In the present case, neither child has an existing relationship with their father. He lives in a different area to the children so that any placement with him would require a change of schools, of services, as well as of carers. F does not propose the children's immediate placement in his care; he proposes that that is delayed for a period of three to six months. The question of their interim placement would therefore arise.

The Evidence of the Children's Guardian

54. The report of the children's guardian highlights the positives and vulnerabilities at E254 to E258. In extended form it reflects the points recorded in the course of my judgment. The oral evidence of the children's guardian reinforced the views expressed in her report. She recognises the impact the separation of the children will have upon them but is clear in her recommendation that it this now the only realistic placement option. Mr Gwenlan emphasised in submissions that the recommendation of JS was that if the current placement could not be maintained, the children need to be cared for separately.

My Conclusion

55. The distress and upset of the parents as the events of the care and placements were made is entirely understandable. I have, however, reached a clear conclusion that placement with F is not realistic. He does not have an established relationship with the children. The children, and particularly A, have negative memories of him. He has not demonstrated consistency in the children's lives and has not had the necessary insight into the children's complex needs. The care needs of these children are extremely high. They each need a very high quality of care in the light of their life experiences to date and the obvious impact of those experiences on them.
56. There is a potential for significant disruption for the children if they are placed in F's care. The ongoing hostility between F and M was evident even during the course of my brief involvement in these long running proceedings. The evidence which F gave provided a clear foundation for disruption by others. The prospect of a placement of A and B in their father's care also brings with it the impact that it would have in consequence on the current family situation, the position of Z and her son.
57. I have concluded that the local authority's plan is the only realistic placement option for A and for B. They are children who have complex needs and, sadly, those needs now require their care to be provided for in separate placements. The current situation is harmful to them and on the evidence cannot continue in their welfare interests. I accept that the foster carers reached this decision with regard to the children's needs. The continued placement of the children in local authority foster care is necessary. In my judgment the plan in respect of placement is now sadly that which will best meet their welfare interests.
58. The local authority seeks orders pursuant to section 34(4) of the 1989 Act authorising a refusal of contact. I have set out the history of contact and the circumstances in which the children have had no direct contact with their birth parents now for years. Whatever the cause, such views as the children have expressed in relation to F, in particular, have been negative. A has, at times, had an idealised view of her mother. The issue of contact must be considered in the context of the children's complex needs. It will form an important part of the regular reviews of the children as looked after by the local authority.
59. Having the children's welfare as my paramount consideration, and having taken account of their individual welfare needs, there is a clear need for the local authority to be in a position to regulate and, as appropriate, refuse contact between the children and their parents. A section 34(4) order is, of course, permissive. The local authority will need to consider the arrangements for each of the children in the context of their circumstances over the future months and years.
60. At the start of the hearing I received a further letter from the Xs, confirming they did not seek to re-join the proceedings, explaining their position in detail and requesting a lengthier detailed recital to the order I make reflecting their position as they see it. I have already recorded that the issues between the Xs and the local authority have not been aired and determined. As I indicated to the parties, I do not intend to incorporate this lengthy recital into my order. The two letters submitted by the Xs, dated 18^th November and 30^th November 2016, are to be added to the court bundle so that they form part of the court record. My order will record the position of the Xs at this hearing in a shorter and neutral form, as it will reflect the position of the other parties.
61. My involvement in the lives of A and B has come at the end of an unhappy chronology for them. They now need the opportunity to settle into their family placements and receive consistent care and therapeutic support they need. I very much hope this will be an end to the litigation in relation to them. I propose to direct a transcript of my judgment to provide a record of the way in which the proceedings were ultimately pursued by the parties and the Xs, and the basis of my determination. I will reserve all future applications in respect of A and B to me in the first instance as, I understand it, the only judge who has conducted a substantive contested hearing since the care and placement orders were made in 2012.
62. In terms of the orders I make, I give the local authority permission to withdraw their applications for care orders in respect of A and B. I will revoke the placement orders. I will make section 34(4) orders. In reaching the conclusions that I have, I have also refused the application by F for discharge of the care orders and I direct a transcript to be prepared on the application of the local authority and at the shared expense of the parties. Subject to any matters arising, that concludes my judgment.
[Judgment ends]