England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT PRESTON
(Sitting at the Leyland Family Hearing Centre

		The Designated Family Court Sessions House, Lancaster Road Preston, Lancashire, PR1 2PD
		8th August 2017

HIS HONOUR JUDGE DUGGAN:

1. This is the final hearing of the local authority's application for care and placement orders. The real issue is whether the youngest child should be placed for adoption. Over three days last week I heard evidence and submissions on that issue, and this is the conclusion I have reached.
2. The proceedings concern six children. There are 3 older boys born in 2004, 2007 and 2011 and 2 girls born in 2008 and 2012. The real issues for this hearing concern a young boy born in the autumn of 2016 to whom I shall refer in this anonymised judgment as "the child". The First Respondent is the mother of all of the children. With the father of the relevant child (to whom I shall refer as "the father") she has given evidence in the proceedings and they have the benefit of specialist representation. The father of the younger girl played a part in the proceedings with representation, seeking as his target contact with his daughter. As agreement emerged on that subject so he and his solicitors, rightly, withdrew from the hearing.
3. There is a large measure of agreement at the heart of these proceedings. The threshold for care orders is in principle met, although I must adjudicate upon some issues concerning the details of the local authority's threshold document. It is agreed that the five older children should be the subject of care orders and that they should stay in foster care where they have been now since 13^th December 2016. The relevant child is at present in a foster placement with his sisters. The local authority's plan is that he should be placed separately for adoption. The mother and father resist that plan, proposing either that he should return home to live with them as a couple or alternatively he should stay with his sisters in foster care. The local authority's application for a placement order for the child is supported by the children's guardian.
4. Overall then in so far as there are agreements within these proceedings – I refer in particular to the agreements concerning the five older children – the agreement is clearly appropriate and I approve the agreement in the best interests of the five children concerned.
5. In so far as the contested part of the proceedings is concerned, in other words the plans for the youngest child, my starting point is that the threshold for public law orders under the 1989 Act is clearly met. I make his welfare throughout his life my paramount concern, and I have the checklists from both the 1989 and the 2002 Acts in the forefront of my mind. The local authority apply to dispense with parental consent to his placement for adoption. The application is made on the statutory ground that placement for adoption is required, in the sense of demanded, by the welfare of the child. I will return to the application of the law to the facts in due course, but the local authority are here seeking a draconian order of last resort. I must not approve the local authority's plan unless it is necessary and proportionate, in other words unless nothing else will do.
6. The local authority have assembled the relevant material in a number of bundles with which I am very familiar. In addition I have heard oral evidence from the two social workers, from the mother, the father and the children's guardian.
7. The family came to Lancashire in early November 2016. They had a long history of involvement with Social Services in two areas of the south and this is well chronicled in the papers. The father joined the family in 2014. The papers show that there were peaks and troughs so far as the care of the children in the south is concerned. In particular the papers are noteworthy for a very large number of recordings of bruises seen on the children. The professional view was that these were attributable to poor supervision on the part of the parents. These recordings established that the mother suffered periods of depression. The scene was often a chaotic one with the home unkempt and the children's behaviour imposing a heavy strain on the mother. The relationship between the mother and the father involved disagreements as to parenting style. They told me from the witness box that the mother was not as firm in her parenting as the father liked to be. There was domestic abuse in the household, frequent arguments between the adults which degenerated into pushing and shoving. Inevitably the children were around and by his own confession there were episodes in which the father displayed signs of anger which caused him to resort to shouting.
8. At the time of the family's transfer to Lancashire in November 2016 the southern local authority were in the process of upgrading their involvement to include serious consideration to child protection measures. The summary that was provided to Lancashire (in the papers at I 44) does not make that at all clear. Indeed the document is optimistic in tone. It refers to the family engaging with professionals. It explains that they have begun to work with services and that this needs to be continued. Reading a little further, for example page I 122, there is confirmation of what is known from other sources, which is that in the perception of the southern professionals the picture was beginning to escalate.
9. On arrival in Lancashire the only criticism is that the family did not yet have education in place, but that was soon arranged. The service provision which was clearly the recommendation from the south was not put in place. Instead the local authority embarked on the process of assessment of what the family would need. The local authority's agenda did not perceive a hasty need for intervention let alone for the removal of the children. The change came with new allegations. On 9^th and 13th December 2016 the girls made 2 different complaints to professionals about sexual abuse at home but only one named the father. The children were removed on Police Protection Orders on 13th December 2016 and in foster care one of the boys made a complaint of a sexual nature against the father.
10. The removal which occurred on 13^th December 2016 was justified by the local authority on a number of grounds. They relied upon two of these three complaints made by the children. They relied on bruising to the older sister for which the evidence indicated that the origins were equivocal, and the local authority suggested that the family had fled from child protection procedures in the south. On analysis and with the passage of time all those purported justifications for removal came to naught. The family had not fled from the south. This was an arranged transfer which enjoyed the support of the southern authorities. The bruising could have been anything, and the sexual allegations have not been pursued. In relation to these both police and Social Services have now decided that the sexual allegations are not capable of proof. That is a conclusion with which I agree. Nevertheless, the removal occurred. The children went to foster care and the crucial assessment phase began.
11. The parents are very robust in relation to the issues raised, in particular, the complaints on which the local authority were relying made by the girls and their brother. The parents do not accept that these complaints have ever been made. The parents' account was that they believed the allegations to have been made up by the different professionals engaged in a conspiracy to remove the children from the parents' care. Alternatively, if it was the case that the complaints were made the parents were clear that the complaints were not true. They might be grounded in confusion. They might be grounded in some form of grudge, but they certainly were not true.
12. I accept that the children did make these complaints and that the professionals did receive them from the children as they say. I am not asked to consider whether the children's complaints were true. It follows under our binary system that if the abuse has not been proved it did not happen, and I propose a recording on the face of my order to make that clear. The final position in relation to these allegations does not seem to have filtered properly through into the local authority's assessment evidence. It follows that in reaching my conclusions I must be particularly careful to exclude issues of sexual abuse from my determination.
13. One finding that I can make and do make is that these three children have made complaints, all of which their parents have dismissed. In these circumstances the children's words needed to be sensitively received and sensitively considered by their parents and carers. These children have not been sexually abused but the context for their complaints surely must have been that they were unhappy. The summary manner in which the various complaints made by the children were rejected by their parents was likely to cause the children significant emotional harm.
14. Since the removal the local authority's social work assessments have concentrated on the needs of the various children and upon the parenting capacity of the mother and father. The headline is the local authority's contention that there really is no significant change from the chaotic home life from which the children were removed. The mother has contact sessions in which for each occasion the children are divided into two groups of three. The picture from each of these contact sessions reflects the chaotic picture from the past. In assessment the mother has acknowledged that her parenting in the past has not been good enough. However, I accept the local authority's contention that the mother does not have insight to allow her to identify just where her parenting went wrong and equally importantly how those deficiencies could be improved. This proposition was for me very clearly exemplified in the course of oral evidence. The mother was being asked about the vast number of occasions on which the older children were seen to have bruising in her care. Her explanation centred upon an absent pair of spectacles and insisted that the bruising was in no way attributable to her. This is only one but a very graphic example of a lack of insight as to what had gone wrong, and an inability to identify what needed to improve.
15. This issue underpins the local authority's case, and of course the mother and the father quite rightly do not seek the return of the five older children to their care. They were exposed to this life style and the five did suffer significant harm. The local authority sought to add the allegation that the youngest child suffered significant emotional harm in the short period he spent with the parents prior to his removal. The local authority's case was based on a dramatic improvement in his presentation very early in his period in foster care. I do not accept that this proposition is made out. It is based on very limited observations in a period of child development which was surely confused in any event by the removal and by the new environment. I conclude that he did not suffer actual harm, although it is clear to me that he would have been likely to suffer significant harm if he had remained in the chaotic household from which he was removed.
16. The crucial issue in the case which has been vividly exposed on assessment is the relationship between the mother and the father. They accept that their relationship has been turbulent with separations and reconciliations. There have been frequent heated arguments with pushing and shoving. I accept the social worker's revised choice of wording when she said that this was a household of domestic abuse. The father accepts that there were outbursts of anger in front of the children. In the witness box I saw from the father periods of barely suppressed anger. Indeed there were moments that I found quite chilling. It is necessary for me to be careful in conducting a deep assessment in the witness box, but of course this impression of anger only goes to confirm what the father himself was prepared to acknowledge, which is that he does have a problem with anger.
17. The parents had a fundamental disagreement over parenting, father being firmer, mother being more relaxed, and this no doubt contributed to the disagreements, turbulence and worse in their home. It is important to consider whether these problems in the parental relationship continue, and my conclusion is that they manifestly do continue. I now set out a short chronology relevant to this topic.
18. In November 2016 the mother was expressing unhappiness with the relationship and an intention to leave. On 20^th December 2016 at a case management hearing the recording indicates that no separation had then occurred, but on 3^rd March 2017 the mother's witness statement records that there has been an actual separation which she regarded as permanent. At the case management hearing on 13^th April 2017 it is recorded that the parents had reconciled. On 18^th May 2017 the mother told the social worker that they had parted once again. On 19^th June 2017 the father produced a statement indicating that the couple were together, but he was prepared to separate if this would help. On 26^th June 2017 the mother produced a statement indicating that a permanent separation had occurred. She explained that she had indeed left the father. She had spent a period of a fortnight sleeping on a park bench. In evidence she explained that part of that period was spent sleeping at her place of work. Her statement continued to explain that she had then returned to the same premises as the father but this was a matter of convenience and their permanent separation would endure.
19. In the background the couple were dealing with the housing authorities. On 5^th June 2017 an application was made for joint accommodation. On 5^th July 2017 a joint tenancy of property for joint occupation was accepted. These dealings with the housing authority were not revealed by the couple but were discovered by the local authority after the event. On 27^th June 2017 at the issues resolution hearing the parents presented themselves as separated. They explained that they remained under the same roof for reasons only of convenience, but they were seeking separate accommodation. Their approach to the proceedings was clear. They sought the return of the child to the care of the mother, who would exercise care alone. On 19^th July 2017 the mother went to the local police station with a male friend. It seems that he was pressurising her to accuse the father of theft, which she personally doubted. More importantly, the mother told the police on that date that she was living with the father who she described as her "ex-partner". They were looking for alternative accommodation because they were generally arguing. On 23^rd July the father repeated his position to the social worker. The plan was for the child to live with mother and mother alone. Then finally we came to the first day of this final hearing, 2^nd August 2017, when the parents announced that they had re-united and that their plan was for the child to be restored to their joint care.
20. This whole saga clearly establishes the instability of the relationship where it is proposed that child care should be exercised. The social worker expressed doubts as to whether the couple ever in fact parted. I do not accept that theory, and for me a clearly unstable pattern is established. The mother must have been very unhappy indeed to leave the father and spend time sleeping at her place of work and sleeping on a park bench. The magnitude of her distress is clear when you remember that there were empty rooms available in the family home which she apparently felt unable to use, rooms to which eventually she did return. The parents have spoken in terms of planning to separate to improve the mother's prospects of securing the return of the children, but it really is difficult to understand that approach when it seems that the significant separation involved the father staying in the family home and the mother sleeping on a park bench.
21. The conclusion to which I am driven is that this relationship was clearly intolerable for the mother for periods which include a period as recent as 19^th July 2017. I am driven to conclude that a child in their joint care would be exposed to a turbulent home life, a life with domestic abuse, a life with anger, a life which would probably involve separations and reconciliations, a life which would involve uncertainty so far as accommodation arrangements are concerned. It has been argued that separation of the parents might produce a more stable picture, but it is quite impossible for me to proceed in that way. Firstly, a separation is clearly not the desired course of the parents, certainly so far as the duration of this final hearing has been concerned. When they have separated, this has not endured and therefore even following the separation it would be inevitable that a child in the care of either parent would continue to be at the very centre of unacceptable turmoil.
22. I remind myself that the removal by the local authority took place on grounds which have now fallen away. The mother came under pressure to explain why she was remaining with the father at a time when the children were accusing him of wrong. This may have contributed to their separation. However, on analysis the mother was talking about separation long before the children made their allegations. November 2016 is clearly recorded as an occasion when the mother was talking about separation. Further, the reasons that the mother has given for separation are very illuminating. She has spoken of irreconcilable differences of parenting style. She has spoken about frequent arguments and a pattern of domestic abuse.
23. A further point arises from this saga. The history shows that any rehabilitation to the care of the parents would need extensive local authority support. In the south the parents received and accepted this. Now they say that help is not needed. The deception and dishonesty which they have performed in relation to the state of their relationship drives me to conclude that the necessary co-operation with the local authority would not now be forthcoming. The mother recently spoke of her objective of ridding herself of even more social workers. Both parents have spoken of a belief that this local authority are conspiring against them by inventing complaints attributable to the children. It is clear that this is not the basis for a successfully managed rehabilitation.
24. There is well established guidance from the appeal courts for these type of cases. I refer of course to Re BS and other decisions. One factor considered to be essential is that the court be given proper evidence to help with the difficult task on which it is engaged. There is a need for the court to be provided with an analysis which contains the arguments for and the arguments against each realistic option. The parents seek to argue that the evidence is lacking so far as the option which they urge upon the court is concerned. It must be remembered that this case has for the local authority involved a moving target. It is only at the issues resolution hearing after the local authority's assessments had been filed that the parents conceded that the five older children must stay in foster care, and they asserted that they were seeking the return of one child to the care of the mother alone. Only on the first day of the final hearing did the parents drop their assertions of separation and seek to care for him together. The written assessments with which I have been presented of course do not include a bespoke section containing the arguments for and the arguments against a potential placement alone in the care of two parents. The crucial question however is whether I have been provided with the help that I need and I am clear that I have. Those who conducted the written assessments had sufficient imagination to consider the situation as it would arise whether the parents happened to be together or whether the parents happened to be apart when the decision came to be made. The assessors did not predict that the parents would be pursuing the care of one child alone.
25. It was of course at the IRH that this first became apparent. There was no application made at the IRH for further assessment, but there is now. There is an informal application for further assessment of the prospects of this couple caring together for one child. The application lacks detail as to who would do the assessment and what the time scales might be, but inevitably it would involve delay in the conclusion of proceedings which have already been extended beyond the statutory time limit to accommodate assessments of the family. The delay would take him beyond the important first birthday mark and the delay would be detrimental to his best interests. At the heart of this then is a case management decision for me, and my task is to ask whether additional evidence is necessary. My conclusion is that it is not. I already have a great deal of information. The needs of the individual children were fully addressed in the written sibling assessment. The child has the ordinary needs of a baby of his age, and he is an important figure so far as his siblings are concerned. In oral evidence there was a full exploration of the pros and cons of the parents' new proposal. In oral evidence there was investigated the support which would be available for the couple, whether that support be from a nursery or various support groups or clinics. I was driven to conclude that it would not address the fundamental problem faced by the parents which is the inherently unstable nature of their relationship.
26. The local authority accepted that the parents displayed an ability to meet the basic care needs of the child. This had been seen before removal and continues to be seen in contact. There is however controversy as to the local authority's view about the attachment between the parents and the child. The father has exercised contact with him and him alone on two occasions each week. In the course of these sessions he has sought and received advice. The result is that these contact sessions have been a good experience and the relationship between father and son has developed well. On the other hand, the mother's bond with the child has been criticised by the social work evidence. It has been said that in contact mother leaves him to his own devices and detail is provided for me of a couple of blemishes in her handling of him, albeit blemishes without mishap.
27. My conclusion is that I should reject this criticism of the mother. I have studied the contact records and this social work summary is not made out. The records provide a mixed picture, but every contact session involves the child being accompanied by siblings, normally by his two sisters, and they are demanding sisters who inevitably present a barrier which the mother must struggle to overcome. Even so the records have persuaded me that there have been good sessions. One example is 27^th April 2017, page J 50 of the bundle. Even more important is the sole session when the mother had forty-five minutes alone with the child on 2^nd March 2017. Record J 39 of the bundle clearly establishes that this was a good session without significant criticism. It is difficult to understand how, but since he was removed from home aged three months the local authority have slipped into a pattern of contact whereby he only sees his mother once each week and always accompanied by siblings. Mother justifiably complains that this has affected the relationship she has with him. On the other hand the father's two sessions a week alone with the child have been a much more realistic exercise.
28. This represents the high point of the mother's case for further assessment to overcome local authority criticism. In fact I have enough to reject the local authority's criticism of the mother on this ground. I have seen records which clearly establish good sessions with siblings present. I have seen a clear record of the crucial sole session when the mother had a one to one period with the child, which was very good. My conclusion then on this issue is that he clearly is capable of forming relationships of bonding. This has been established with the father. I have no reason to believe that a proper relationship could not develop with the mother if it was appropriate for the child to spend increased periods of time in her care. So both parents are capable of a loving relationship with the child. However, the problem remains that in their care he would be exposed to the problems in the adult relationship.
29. Another feature which achieved new prominence when the parents decided to present the plan to care for one child alone is the issue of the loss of the sibling relationship. This is the subject of a written sibling assessment and was of course developed in oral evidence. It is clear to me that the older children are familiar figures for the child. He is placed with his 2 sisters, and they have been increasingly involved. In that placement he is doing particularly well. The plan would be for him to be placed away from his sisters, and of course they would be very upset to lose him. However, he is not yet twelve months old. I accept the proposition that the sibling relationship is less important for him than it is for the older siblings.
30. The statutory checklists ensure that nothing is overlooked. Under the 1989 Act, paragraph (b) his needs are the same as any other baby. He needs a safe, stable home environment. Under paragraph (e) in his parents' care he would be likely to suffer significant harm from the unstable nature of their relationship. These future harm cases need to be approached with caution because of their theoretical nature, but this is a case where older children have in fact been exposed to the problems of these parents and they have in fact suffered significant harm such that the threshold is met. So my analysis in relation to this child must be that the level of harm and the level of the likelihood that this harm would occur are both at an unacceptably high level. Under paragraph (f) the strengths and weaknesses of the parents I hope has been sufficiently addressed.
31. Under the 2002 Act the checklist raises two significant additional matters. Under paragraph (c) the court must consider the effect of adoption. This would involve loss for the child. He would cease to be a member of the birth family and suffer the loss of heritage that that entails. However, through adoption there would be the counterbalancing gain which arises from full membership of a new family where his future lies. Under paragraph (f) the court must consider the issue of relationships. There are existing relationships, especially the relationship with the siblings with whom he lives and to a lesser extent the others who he sees. There is a promising relationship with the father, and a relationship with mother which would be better if the opportunity was presented. However, he was removed before he was three months old, so the relationship with the parents is inherently a contact relationship. The family of course would want the relationship to continue, and I expect they would show commitment. It is the value of this relationship which needs to be reflected upon. Over his lifetime these relationships would have real value, but the planned indirect contact keeps that alive and creates opportunities in adulthood. For the child the important relationships are the new relationships which he must make with those who can meet his needs and can provide the safe, stable home life which is proposed. In this context I am driven to reflect that the old relationships, although valuable, also impede the new relationships of greater value.
32. The realistic options then are three: adoption, foster care and home with the parents. Adoption of course has disadvantages. Sometimes an adoptive placement cannot be achieved. That seems unlikely in the case of this young child, but placements once made can break down. Placements can be subject to significant pressures, particularly in the teenage years when issues of identity come to the fore. Adoption carries with it the disadvantage arising from the loss of the birth family, with the parental and sibling relationships. On the other hand adoption carries with it the advantage that the child will be in a safe and stable home. Adoption carries with it the permanence which only full membership of a family can bring.
33. Foster care would in my judgment be a poor outcome for a baby less than twelve months old. He would be exposed to uncertainty, insecurity and lack of permanence. The advantage of foster care would be of course a safe home but more importantly foster care would allow the relationships to continue. At his age this is not in my judgment sufficiently important to deprive this child of the additional permanence which adoption can bring.
34. A return to the parents' care carries the advantage of upbringing in the birth family. This is where a child ought to be unless there are overriding requirements of welfare which make that impossible. My analysis indicates that a return home would be to propel the child into a hopelessly unstable family life which I am afraid is what the parents are in fact offering.
35. My task has been to make the welfare of the child throughout his life my paramount concern. Parental consent can only be dispensed with if the local authority establish that adoption is required in the sense of demanded by the child's welfare. It is not a case where support from the welfare agencies can address the issues in the case. The child needs a stable safe home without the chaos which the parents would bring. Accordingly, I conclude that nothing else will do. It is necessary and proportionate that he be placed for adoption, and in that context the statutory test for dispensing with parental consent is clearly met.
36. Before granting a placement order the Act requires me to consider the contact position. The local authority's plan is an entirely conventional plan for indirect contact involving both parents and siblings. The guardian has in her written report speculated whether indirect contact was enough so far as the siblings are concerned, but in her concluding remarks she told me that she had come to the conclusion that indirect contact it would have to be. The reality is that any more than indirect contact, whether it be parents or whether it be the siblings ( who will see the parents), would place difficult hurdles in the task of searching for an appropriate placement, and even if a placement was found it would make the success of that placement more difficult. It must not be overlooked that the important relationships for the child going forward are going to be the new relationships rather than the old ones.
37. In that context I approve of the local authority's contact plan and find it to be unnecessary to make a contact order. The conclusion is that his welfare throughout his life can only be achieved by the local authority's plan. I have distributed in draft an order which records the threshold with the adjustments to reflect my findings. I approve of the care plan and conclude that a care order is needed in order for the plan to be implemented. The statutory ground having been met, I dispense with parental consent and grant the local authority a placement order. I ask the children's solicitor to disclose to the IRO the final care plan, the final order and the guardian's reports and I make provision for costs.

Approved 31/8/17

RD

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