England and Wales Family Court Decisions (other Judges)

MISS RECORDER HENLEY

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

		Before: MISS RECORDER HENLEY

IN THE FAMILY COURT                                                  Case No. NE17C00032

SITTING AT NEWCASTLE UPON TYNE

In the matter of the Children Act 1989

In the matter of

K O-S (born January 2017)

S O-S (born January 2017)

BETWEEN:

A Local Authority

Applicant

-and-

(1)   M

(2)   F

(3)   PGPs

(4)   K O-S AND S O-S

(Minors, acting through their Children’s Guardian, Miriam Dolman)

__________________________________________________________

JUDGMENT

__________________________________________________________

Representation

Applicant – Mrs Taylor (Counsel)

Respondent Mother – Miss Usher (Solicitor)

Respondent Father – Miss Lennon (Counsel)

Respondent Paternal Grandparents – Miss Hewitt (Counsel)

Respondent Children –  Miss Davison (Solicitor)

Introduction

1. This is an application for care and placement orders brought by the local authority (LA). 

2. The Court is concerned with twin boys, K and S O-S (born January 2017) aged 8 months old.  S suffers from hearing difficulties, for which he has been fitted with hearing aids in both ears.  He is being taught to understand British Sign Language.  He has failed to develop his gross motor skills at the same rate as his brother and has a weakness on his left side.  He suffers from significantly restricted mobility and developmental delay.  He presents as floppy, having poor muscle tone and is unable to sit up or support his own head.  He is at significant risk of choking when eating solid food and is at a heightened risk of suffocation compared to other children his age.  He is undergoing medical investigations for suspected Cerebral Palsy and it is anticipated that he will require carers who will be able to work with a range of professionals for the foreseeable future to ensure that his health and developmental needs are met to a good enough standard relative to his complex needs.  Although his diagnosis of Cerebral Palsy is yet to be confirmed his treating clinicians are confident that this diagnosis is likely to be made.  The children reside in local authority foster care under the auspices of Interim Care Orders, they have been placed with the same carers throughout these proceedings.

3. The Mother (M) is aged 26 years.  The Mother suffers from a borderline learning disability with an IQ of 70.

4. The Father (F) is aged 20 years, the Father suffers from a learning disability, with a full scale IQ of 53.

5. Both parents have litigation capacity and are legally represented in these proceedings.

6. The parents present as a couple.  They live together in the Father’s tenancy, in supported accommodation.  K and S are their first and only children.  The parents share Parental Responsibility for the children as a consequence of registration of the Father on the children’s birth certificates. 

7. This matter comes before the Court for a Final Hearing in public law proceedings with a time estimate of 4 days.  These proceedings were issued on 16^th January 2016.  The 26 week timetable for the conclusion of this case expired on 16^th July 2017.

8. During this hearing, I have heard from counsel for the local authority, for the Father and on behalf of the Paternal Grandparents as well as from the solicitor for the Mother and on behalf of the children.  I have read the bundle of documents filed for these proceedings.

Background

9. Both parents suffer from learning difficulties.  The Mother is a vulnerable young woman.  Adult services received a series of safeguarding concerns about her prior to her pregnancy with regards to being reported missing, possible financial and sexual exploitation and alcohol and substance misuse.  She has been involved in a series of domestically abusive relationships.

10. The parents met in April 2016 whilst in supported accommodation.  Children’s Services became involved with the couple following a referral from the Mother’s social worker on 15^th June 2016 when M was said to be 8 weeks pregnant.  Concerns centred on alcohol and substance misuse, the nature of the parents’ relationship and whether the parents had the capacity to care for a child.  On 1^st July 2016, a scan revealed that M was carrying twins.

11. On 5^th September 2016 an Initial Child Protection Conference was held.  Both children were made the subject of Child Protection Plans under the category of Neglect.

12. During the course of the pregnancy, on 2^nd November 2016, the parents separated as a consequence of the Mother’s allegations that the Father was domestically abusive.  The Mother was assisted in this regard by being placed in a hostel for mothers and children.  The Mother agreed to have no contact with the Father, despite these assurances to professionals the parents reconciled in December 2016.  They did not inform professionals of their reconciliation at the time.

13. A pre birth assessment of the parents was negative in respect of them caring for the children together or alone, as was a previous viability assessment conducted by another local authority in respect of the Paternal Grandparents.  Care plans were formulated for the twins to be accommodated in local authority foster care at birth as a consequence of the following concerns:

(i)                 The parents’ learning difficulties and the impact that those difficulties may have on their ability to meet the basic needs of a child

(ii)               The level of assistance that each parent requires as a vulnerable adult with day to day living, each living in supported accommodation for this reason

(iii)             Each parents’ history of misuse of alcohol and illicit drugs

(iv)             Domestic abuse and volatility within the parents’ relationship

(v)               The Paternal Grandparents had been caring for their other grandchildren, who were not able to remain in their care and, following negative assessments of them, were placed in alternative placements by another local authority.  One of those children was adopted.

14. The twins were born in January 2017 and were accommodated in local authority foster care following their discharge from hospital when they were 5 days old.

15. Initially the parents’ had separate contact sessions with the children as a consequence of concerns about the volatility within their relationship.  Unfortunately the Mother failed to attend many of her contact sessions, sitting outside of the Father’s sessions instead.  At the request of the parents, joint contact sessions were subsequently offered.  Professionals continued to voice concerns about the level of control being exercised by the Father towards the Mother and whether he was preventing her from having access to professionals.  Contact has been offered at least twice per week during these proceedings and often on three occasions each week, supervised by the local authority.  The parents’ attendance at contact is described as “very sporadic” by the local authority.

16. The only alternate kinship carers that the parents have put forward for assessment are the Paternal Grandparents.  They have been offered supervised contact with the children on one occasion each week.  It is said that they have not consistently attended these contact sessions- attending only 8 out of a possible 26 sessions in the first six months of the boys’ lives.

17. On 6^th February 2017 District Judge Hardy made interim care orders in respect of each child and approved an application for a PAMS based parenting assessment of the parents to be carried out by an Independent Social Worker.  Mrs Deborah Gaskin was instructed to carry out this assessment.  Her assessment is dated 31^st May 2017 and reaches a negative conclusion in respect of whether the parents would be able to safely care for the children.

18. On 13^th April 2017 the local authority filed a negative viability assessment of the Paternal Grandparents.

19. On 30^th May 2017 District Judge Loomba joined the Paternal Grandparents as parties to these proceedings to enable them to challenge the local authority’s negative assessment of them.

20. On 18^th July 2017 Recorder Armitage extended the timetable for the conclusion of these proceedings and granted an application for the Paternal Grandparents to have an independent social work assessment carried out by Mrs Gaskin.

21. Mrs Gaskin’s assessment of the Paternal Grandparents is dated 4^th September 2017 and was made available to the Court on the first morning of the final hearing.  It reaches a negative conclusion in respect of whether the Paternal Grandparents could care for the twins and recommends that the twins be placed for adoption.

Positions of the parties

22. The local authority seeks a Care Order and Placement Order in respect of each child and advances care plans for them to be adopted together.  It proposes a reduction in contact to the parents over the course of three weeks from three times per week, to twice per week, then once the following week.  Contact would then reduce to fortnightly and then monthly until an adoptive family is found.  Annual indirect contact via the post box system would be promoted to the parents post adoption.  Should an adoptive placement not be found, after a 9-month national search, the current foster carers of the children have indicated a wish to care for the children long term, as fostered children.

23. The Mother accepts that she is not in a position to care for the children and that she remains in her relationship with the Father.  She does not agree with the local authority’s care plan for the children but in light of the position of the Paternal Grandparents, does not actively oppose them.

24. The Father accepts that he is not in a position to care for the children.  He does not agree with the local authority’s care plan for the children but in light of the position of the Paternal Grandparents, does not actively oppose them.

25. The Paternal Grandparents accept that they are unable to care for the children.

26. The Children’s Guardian supports the making of care and placement orders in respect of each child on the basis that the search for an adoptive placement should take place on a national basis from the outset and should be time limited to six months.

Legal Framework in respect of welfare decisions

27. I remind myself that each child’s welfare is my paramount consideration. That is section 1(1) of the Children Act 1989.  In considering what orders to make I have regard to the Welfare Check List found in section 1(3) of the 1989 Act.

28.  In relation to the threshold criteria of section 31(2) Children Act 1989 I have regard to whether I am satisfied that each child has suffered or is at risk of suffering significant harm. 

29.  When considering which orders if any are in the best interests of the children I start very clearly 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, reminding us such orders 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".

30.  It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom (2012) 55 EHRR 33 it was said: "Family ties may only be severed in very exceptional circumstances and…. everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."

31. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the realistic options for the children, taking into account the assistance and support which the authorities or others would offer. 

32. In considering making a Care Order I have had close regard to the Article 6 ECHR and Article 8 ECHR rights of each parent and of the child, but I remind myself that where there is tension between the Article 8 rights of the parent, on the one hand, and of the child, on the other, the rights of the child prevail; Yousef v The Netherlands [2003] 1 FLR 210.

33.  In terms of the Local Authority's application for a placement order, it is trite law that I must be satisfied that any orders I make are a lawful, necessary, proportionate and reasonable response to each child's predicament. The granting of a placement order represents the most drastic curtailment of the right of these parents and of the children under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, which can only be justified by pressing concerns for their welfare. However, in construing both the Convention and domestic law, I now have the assistance of the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33 followed by the decisions of the Court of Appeal in Re P [2013] EWCA Civ 963 and Re G [2013] EWCA Civ 965. Those cases firmly re emphasise that a placement for adoption is a "very extreme thing" and "a last resort to be approved only when nothing else will do". Both domestic and Convention law do require a high degree of justification before adoption can be endorsed as "necessary", the term in the Convention or "required", the term in the Adoption and Children Act.

34.  I must apply the welfare checklist found in section 1(4) of the Adoption and Children Act 2002, and I must be satisfied that the making of a placement order accords with each child's welfare throughout his life.

35.  If I conclude that each child's welfare throughout his life demands that such an order is made then the law requires me to dispense with the consent of the parents to the making of a placement order in circumstances in which they oppose the application.

Threshold Criteria

36. The parents accept that the threshold criteria for the making of public law orders pursuant to section 31 Children Act 1989 is crossed as a consequence of the following factual concessions:

(a)    The parents are both vulnerable adults; each has significant learning difficulties which impacts upon their ability both individually and as a couple to consistently manage their own care.

(b)   The Father is very dependant upon the Mother for support and can become upset when separated from her, and he struggles to allow the Mother to meet with professionals away from him, because he worries about what is happening when he is not there. This has made it extremely difficult for professionals to work with the parents.

(c)    The Father has difficulty in regulating his emotions particularly when presented with advice from professionals which disagrees with that advice.

(d)   The Father is unable to engage with professional support in a consistent and meaningful manner.

(e)    As a consequence of their own inherent difficulties, which are static in nature, the parents are unable to meet the emotional and physical needs of the children, one of whom has developmental delay.

37.  As a consequence of these concessions I am satisfied that the threshold criteria is crossed.

Welfare analysis

38. On the first morning of this hearing the Paternal Grandparents indicated through counsel that having reflected upon the report of Mrs Gaskin dated 4^th September 2017, and having had discussions with the Children’s Guardian they had reached the difficult decision that they were no longer putting themselves forward as prospective carers for the children.  I commend them for taking this brave and sensible stance.  I have no doubt, having read the assessments of them, that they have reached the right decision and that apart from anything else, the demands of caring for these twin boys, one of whom has complex and potentially life long needs would have been overwhelming for them and would have very much compromised the care that they are ably giving to the three sons they have living with them at the current time and who will remain living with them for the foreseeable future.

39. Prior to the first morning of this hearing, the parents’ positions had been to support the Paternal Grandparents in their desire to care for the children.  The Mother accepted that she was unable to care for the children whether with the Father or alone, whilst making clear that she intended to remain in her relationship with the Father.

40. In the Father’s statement dated 1^st September 2017 he supported a placement of the children with his parents in the first instance, and in the event that they could not be placed with his parents, he sought to care for them with the Mother.

41. In light of the parents’ cognitive difficulties, the fact that the Guardian’s report was still to be circulated when this matter was called on, on the first morning of the hearing, the fact that the assessment of the Paternal Grandparents by Mrs Gaskin had only been circulated to the parties that morning, and in light of the change of position of the Paternal Grandparents, I stood the matter down until the second day of the hearing to allow time for these lengthy and detailed reports to be shared with the parents and for them to assimilate this information, take advice and give instructions.

42. Having had the opportunity to consider their positions overnight, the parents have now reached the position that they do not agree with the care plans of the local authority but do not actively oppose them.  It is to their very great credit that they are able to accept that in the absence of a family placement, adoption is the best option for them notwithstanding that it would mean a loss of contact to the family.

43. I therefore now have one realistic option before me: adoption.

 

44. In reaching a decision in this matter I have the benefit of the statements and assessments of Laura Stanwick, local authority social worker who was allocated to the twins in September 2016 and who has remained their social worker throughout this case.  I am grateful to her for her careful and balanced written work and I accept her conclusions.  I have also had the benefit of two detailed and thorough assessments by Mrs Gaskin, a very experienced Independent Social Worker who assessed the parents and Paternal Grandparents in this matter.  Mrs Gaskin’s work is fair and extremely helpful to the Court.  Her work reached exactly the same conclusions as the local authority and echoed its very many concerns about the family’s ability to safely meet the needs of the children.  I accept her conclusions.  The local authority has conducted a careful balancing exercise within its written documentation to consider each competing realistic option for the child, which I have found helpful and which I adopt.

45. I have also had the benefit of the Guardian’s composite final report dated 5^th September 2017 for which I am grateful.

46. When contemplating which care option is in the best interests of these children, I must consider their needs now and in the future.  K currently has the needs of any 8 month old baby.  He is meeting his milestones but is a vulnerable child by virtue of his age and therefore needs constant care and supervision within a calm, safe and nurturing home environment.  He requires a responsive carer who is able to meet his needs as he grows and develops.  It is anticipated that his development will continue in line with his peers. 

47. S’s needs are far greater.  These are helpfully set out in detail within the Guardian’s final report as follows:

“Physically S is not meeting his milestones. He can hold his head a little better but it is still floppy. He cannot roll onto his back but his carer says he will push up with his legs. He has significant hearing loss and wears hearing aids in both ears. There are recent concerns about his vision, which need to be investigated further. He can see directly in front of him, fix and follow. He struggles to see something from the side. Medical professionals are confident that S has cerebral palsy although a formal diagnosis is awaited. Many of the needs he has, could be attributed to cerebral palsy (developmental delay, floppiness, swallowing difficulties, vision problems). S’s condition is likely to affect his four limbs. If he is not sitting independently by the time he is two, he may not walk. However, this is not a certainty and it is too early to understand how his condition will impact on him or what needs he will have when older. S is dairy intolerant and has special milk. He also has reflux…”

48.  S requires a far higher level of professional and medical involvement as a consequence of his condition, the Guardian sets this out in her final report as follows:

“S has several professionals involved with him - a hearing advocate supporting him and K to learn sign language, a physiotherapist, an occupational health therapist, health visitor, hearing specialist, dietician and paediatricians from the Queen Elizabeth Hospital. He has appointments on the 8th September for his sight and the 12th September with all the professionals discussing his condition. If he is to have an MRI scan, he will go to the Royal Victoria Infirmary but no date has been arranged as yet. Anyone caring for these little boys will have a lot to manage.”

49.  Both children are too young to express wishes and feelings and have been given a very high standard of care to date in their local authority foster placement.  The Guardian’s opinion is that “S needs extremely good care, due to his current high level of need and uncertain future needs. There will be many appointments and home visits to manage. Whoever cares for him will need to be highly organised, attentive, alert and be able to manage the needs of K alongside this. It is just as important that K’s needs are fully met and that he is not neglected in any way.”  I agree.  I am satisfied that providing good enough care for these two children will present considerable challenges for any carer.

50.  Having read the bundle of documents in this case I am left in no doubt whatsoever that very sadly these children cannot be cared for by their parents and that all of the advantages of these children being brought up in their natural family by parents who love them, enjoying relationships with family members who love them, are outweighed by the very considerable negatives that a placement with their parents would bring.

51. I am satisfied on the basis of the unchallenged assessments of the parents that they cannot safely care for the children and that the children would be at risk of suffering significant harm in the form of neglect, impairment of their physical and emotional development, emotional and physical harm should they be rehabilitated to their parents’ care.  Although I acknowledge that they love the children and would ideally wish to care for them.

 

52. I am satisfied on the basis of the totality of the professional evidence that these children should be brought up together, notwithstanding their diverse needs.  They are twins who share a unique bond, which should be allowed to continue throughout their lives.  I agree with the Guardian that wherever they are placed, they should be placed together and should not be separated. 

53. When considering which is the best long term outcome for the children, I acknowledge that adoption is by no means a perfect solution.  It may in practice prove to be an unachievable solution in this case.  It brings with it the loss of all contact with birth family members and a change of identity such that all ties to the natural family are removed.  Adoptions can and do break down.  A move to an adoptive placement would require these children to sever their primary attachments from their foster carers and to reform them with adoptive parents who are strangers to them.  Adoption can impact upon a child’s emotional well being and self esteem during their childhood and into adulthood, it can result in feelings of rejection from birth family and resentment towards adoptive carers.  

54. I acknowledge that long term foster care would allow for on going direct contact to the birth family, with the retention of the children’s identities.  It would permit the children to remain in placement with carers who they already have their primary attachment to and where they are receiving a very high level of care.

55. Adoption is however, the only placement option outside of the birth family, which allows a child to have true permanence in the legal and social sense of the word.  The children would be able to develop attachments to new parents to enable them to be provided with emotional security, free from on-going statutory involvement.  

56. I am satisfied that in light of their ages these children should be given the opportunity to be placed for adoption with carers who will claim them, not just for the duration of their minorities but throughout their lives.  Given S’s difficulties he may well remain dependent upon his carers into adulthood and therefore the opportunity for him to be adopted by a forever family should be explored at this juncture.  I am satisfied that nothing else will do but adoption for these children.  In my view long term foster care should only to be countenanced for them if a search for an adoptive placement fails.  These children deserve the opportunity to have secure and stable home lives with committed and dedicated adoptive parents as opposed to professional carers if at all possible.  This position is recognised by the children’s foster carers, who have provided the children with an excellent level of care to date, but who are willing to prepare these children to move on to adoptive placements.  If an adoptive placement is not found for the children, they would wish to be assessed as long term foster carers for them.  I would very much hope that that would be possible in that eventuality and approve that contingency plan for the children.

57. I agree with the local authority and the guardian that the only realistic option, given the children’s very young age, is alternative care from that offered by the birth family, in the form of an adoptive placement.  Long-term foster care could not offer them the full sense of belonging, security and legal security which these children require and deserve.  I agree with the Guardian, that given that adopters would need to be found who are not only willing and able to care for twins, but who are capable of meeting the complex needs of S now and into the future, the search for adopters should be a national one from the outset.  The Guardian did not press me to conclude that 6 months was a better timescale for an adoptive search than the 9 months put forward by the local authority, accepting that that was a reasonable timescale.  I approve a 9 month national adoptive search for the children on the basis that it gives them the best opportunity for an adoptive family to be found and gives more time for the extent of S’s disability to become apparent, which should assist with the matching process.

58. I accept and acknowledge that the children will undoubtedly suffer a degree of emotional harm as a result of losing an opportunity to have relationships with their birth family and that this will be a life-long enduring loss.  However, in my judgment, their need to be protected from the many risks that there would be to them were they to be placed with parents, both in the short and the long term, outweighs the harm that they would suffer as a result of losing relationships with their birth family.

59. The fact that the care plans provide for the children to be placed together will obviously afford each child an opportunity to grow up together with a sibling and this will reduce their feelings of loss in connection with their adoption outside the birth family.  The care plans provide for a reduction in contact between each child and his parents, which, in the circumstances, is entirely appropriate.  The plans provide for each child to have an opportunity to have indirect contact with his parents at a frequency of once per annum and I consider this to be a contact plan which meets each child’s need to have an understanding of his family of origin and his identity.

60. For all of these reasons I am satisfied that the care plan for each child is an appropriate one and I approve those plans and make Care Orders in respect of each child.

61. I must now turn to consider the local authority’s applications for Placement Orders in respect of each child.

62. In considering whether to make a Placement Order I must consider not only what is in each child’s best interests during their minority but what is in each child’s best interests throughout their lives.  Having already concluded that nothing but adoption will do for them, Placement Orders are orders which provide the local authority with the legal permission required to put the care plans I have already approved into effect.  I am clear that it is in each child’s best interests throughout their lives to be adopted and thereby claimed not only throughout their childhoods but also into adulthood.

63. There is a pressing need for plans to be implemented for these children without delay.  They are already 8 months old.  They are ready to be adopted.  I have come to the firm conclusion that the only plan which meets each child’s needs is one of adoption and that those plans need to be implemented without delay.  Consequently, I have no hesitation in concluding that each child’s welfare requires me to dispense with his parents’ consent and I make placement orders in respect of each child.