England and Wales Family Court Decisions (other Judges)

IMPORTANT NOTICE 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 or his/her 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. 

Case No: SN17C00073

IN THE FAMILY COURT sitting at Swindon

Date: 27 March 2018

Before :

DEPUTY DISTRICT JUDGE REED

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Margaret Pine-Coffin for the Applicant

Sarah Phillimore for the 1^st Respondent

Asha Pearce-Groves for the 2^nd Respondent

Jayne McPherson for the 3^rd Respondent

Hearing dates: 26 and 27 March 2018

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT

Deputy District Judge REED :

I have used made up names in this judgment because it is private. Everyone involved in the case has a copy with their real names in it.

What the case is about

1.                  I have to decide what should happen to Jack. Jack will be a year old in the summer. The A Council has asked me to make orders so that Jack can be adopted. These are called care and placement orders.

2.                  I am going to give my decision now and explain my reasons after. I am going to make care and placement orders so that Jack can be placed for adoption.

3.                  The lawyer for A Council is Ms Pine-Coffin. The social worker is Ms F.

4.                  Jack’s mum is M. Her lawyer is Sarah Phillimore.

5.                  Jack’s dad is called D. His lawyer is Asha Pearce-Groves. Mr Hutchinson is a psychologist who has written a report about D. He says that if he has help D can understand the court case. Ms Meroz is an intermediary. She has been at court helping D to understand things. D has ADHD, depression and a mild learning disability which all make things difficult for him. D finds reading difficult.

6.                  Jack’s court Guardian is L. Her lawyer is Jayne Mcpherson.

7.                  D is not here today. Yesterday, with the help of Ms Meroz he has told Ms Pearce-Groves what he would like her to say for him, and has asked not to come today. I said that was ok. I’ve tried to explain my decision using simple words and have written it down. D (and M) might want to read it later, maybe with his lawyer. M helps D with reading so they might want to read it together in the future.

8.                  I want to thank everybody who has helped at court this week. I think that the lawyers have given sensible advice. I know this has been very difficult for both of Jack’s parents.

9.                  I have read all the papers in the case and I have listened to what the lawyers have all said to me today. I also listened to what Jack’s mum told me yesterday.

10.              I need to explain a bit about what happened before Jack was born.

11.              Jack has two older siblings. Joe and Oliver are older, but still in primary school. They live with their grandparents. Joe has lived with them for a long time. Oliver has lived with them for just over a year. A court case about Oliver ended last summer, when a judge made a special guardianship order. M was pregnant with Jack at that time.

12.              Oliver went to live with his grandmother because social services were worried about what was happening at home. Some of the worries were about sexual allegations, which the police were investigating. I don’t have to make any decisions about those allegations today, and D says they aren’t true. Other worries were about how Oliver was being looked after, including toilet training, the state of the house and seeing and hearing arguments and shouting. Some of these things made Oliver frightened.

13.              Social services are worried that the same things might happen to Jack, and they think that because he is very little it’s more dangerous for him. That’s why they have asked me to decide what should happen to Jack.

14.              Jack’s parents don’t agree with everything that social services say about their care of Oliver or the things wrong with their relationship, but everybody agrees that when the court case was started in June last year things were not as good as they should have been. Everybody agrees that Jack was at risk of significant harm at that date.

15.              Ms Pine-Coffin has written down what everybody agrees went wrong in the past in a ‘threshold document’. I agree with everything in that document. I agree that those things are serious enough for the court to think about making a care or placement order. I have to decide whether or not that is the right thing for Jack, or whether I can do what is right for him without taking him away from his family.

16.              A social worker did an assessment of M and D, to help me decide what might work for Jack. M asked for another assessment by someone independent, so Ms K also did an assessment. Mr Hutchinson assessed D’s understanding and explained what help he needs to understand what is happening. Communicourt wrote a report telling me how they could help. Because of that report Ms Meroz from Communicourt came to court yesterday to help D.

17.              I have also read statements from the parents, the social worker Ms F, and reports from the Guardian.

18.              Jack has been in foster care since he was born. His parents would like him to come home with them when the court case ends. They say things have changed and Jack would be safe and happy in their care.

19.              The social worker says that things haven’t really changed. All the assessments say things haven’t really changed. The Guardian says the same. Sadly, all the professionals involved in the case tell me that Jack would not be safe at home, even though his parents love him.

20.              Oliver’s case ended just before Jack was born. The parents accepted Oliver should stay with his grandmother. This case started when Jack was born last summer and it has taken longer than it should have. Later I will explain a bit about Jack’s court case because the parents’ lawyers say that it hasn’t been dealt with properly.

21.              This hearing was supposed to take four days. This was the first time that D has had help from an intermediary. With help from their lawyers and Ms Meroz the parents agreed that they didn’t want their lawyers to ask the social worker or anyone else any questions. They agreed that M would speak for both of them. Yesterday she told me about Jack and their wish to have him home.  M told me that

22.              Everyone agreed they didn’t need to ask M any questions. Ms Pearce-Groves tells me that D agreed that M should do the talking for him and he agrees with what she said.

23.              The law tells me what I can and can’t do. Because of what is in the threshold document I have to decide whether I should make a care and placement order. Jack has been kept safe because he has been in foster care. I have to think about what might happen to Jack if he went to live with his parents.

24.              Today I heard from all the lawyers about what I should do. Nobody is asking me to put off a decision. Nobody is asking for any more assessments. But M and D wanted their lawyers to say something about what has gone wrong with Jack’s case.

25.              Although everybody knew that D was diagnosed with ADHD when he was a little boy, nobody asked for an assessment of his ability to deal with a court case like this. November 2017 was supposed to be the final hearing but the judge was worried about this and suggested there should be an assessment. Mr Hutchinson assessed D and says that he needs help to cope with and understand the case. The court decided in January that this should be through an intermediary and by things like making sure D had breaks and simple questions.

26.              Ms Phillimore and Ms Pearce-Groves say this should have happened sooner. I agree. It looks like nobody thought of it before and nobody is quite sure why. Even D’s lawyer didn’t ask for this assessment until the judge suggested it in November. Ms Phillimore and Ms Pearce-Groves say it was maybe because everyone was thinking too much about the serious police investigation about D’s behaviour.

27.              There is lots in the papers about that police investigation, but in the end the police dropped the case. Social services haven’t asked me to decide if those allegations were true. The social workers statement says that just because the case has been dropped doesn’t mean the allegations aren’t true, but that isn’t the law. If the allegations haven’t been proved the things didn’t happen. Even though there is lots in the statements and assessment about the police investigation there are lots of other serious concerns that I still have to think about.

28.              Ms Phillimore and Ms Pearce-Groves say that because D hadn’t been properly assessed until January all the assessments are unfair. I agree that it would have been better if Mr Hutchinson’s helpful report was written sooner. But I don’t think the case is just about D’s ADHD and learning disability. The parenting assessment was a ‘PAMS’ assessment, which I think is the right sort of assessment for D. M was allowed to instruct an independent social worker Ms K to reassess her and D. Ms K knew about the ADHD. D wouldn’t really talk to Ms K.

29.              M tells me that D ‘finds it really hard to communicate’. I think that is right. I don’t think having Mr Hutchinson’s report sooner would have changed that. D finds it really difficult to communicate, to listen and to be calm all the time. He finds it hard when he is at meetings and assessments, and he finds it hard when he is at home too. Sometimes he gets angry and loud. M says she has to spend a lot of energy supporting him because of his disabilities and it is unfair of social services to criticise her for that. I think that this is partly right – D does need support from M. But I think that Jack needed that attention too and he should have come first. If M was to care for Jack she would need to always put him first. It must have been very difficult for M to decide whether to go into a mother and baby foster placement with Jack and leave D on his own, but she knew that she had to make a choice, and I am worried that when she refused to go with Jack she didn’t put him first. I’m not sure what support social services could have given that would have made this easier for M, because D doesn’t want help and doesn’t think he needs it.

30.              A letter from D’s Psychiatrist tells me that he has missed lots of appointments about his ADHD so they had to close his file in 2017. Mr Hutchinson’s report said it was important for D to get some help with his ADHD because it would help with his parenting, but so far he hasn’t done that.

31.              After Mr Hutchinson’s report was written there was a hearing in January. Nobody asked the court for a new parenting assessment of D at that hearing, and nobody has asked me to order one today. The social worker has visited and tried to speak to D but hasn’t got very far with that.

32.              When Mr Hutchinson wrote his report he suggested that there should be an adult social care assessment (A Care Act assessment). This has happened but it doesn’t suggest any help. The parents say that the assessment is not very good, but they aren’t asking me to wait for another one to be done.

33.              The parents’ lawyers told me that Jack’s parents understand that D’s issues are not sorted out yet – they understand this would probably take a long time to sort out. They understand that the court may say Jack can’t wait that long.

34.              Whatever has happened so far, I don’t think that the problems D has can be sorted out overnight. I have decided that I need to deal with the case now, and look at the information I have now. If D gets some help things might change in the future, but I can’t be certain that he will get help, that he will accept it or that it will work. And I don’t know how long it would take. And anyway, Jack has two parents – the worries aren’t just about D, they are also about M and about their relationship.

35.              M and D don’t agree with the professionals about the risks to Jack but they have not given evidence and they have not challenged the professional evidence, which all says the same thing. I accept what the professionals all say about the risks to Jack.

36.              The evidence tells me that the same things would probably happen to Jack that happened to Oliver. It tells me that things are not really very different now to how they were before. D has not yet had help to deal with his anger and ADHD issues which I think make it really hard for him to behave appropriately. I think that M and D both depend on each other so much that this means that they can’t always put their children first. I think they have had lots of help to understand why professionals have been so worried about their children, but don’t really understand it enough yet. I think that Jack would grow up in a frightening and dangerous home, seeing his parents arguing and shouting.

37.              I don’t think that Jack leaving the house with his mum, or even his mum calling the police is enough to keep Jack safe and to stop him feeling unsafe. I think that M and D are doing their best but don’t realise just how frightening things probably were for Oliver, because for them it has become normal. If the same things happen to Jack he will grow up thinking its normal too. Even if it’s not deliberate D’s frightening behaviour will be bad for Jack.

38.              I’ve also read about some of D’s loud and angry behaviour that has happened recently, so I think it’s still a problem.

39.              I have read all the information in the bundle and listened to what everyone has said. I don’t think that there is anything more that social services could do to help the parents so that Jack could be safe at home. Even if D gets some help, it would take a long time before it would make enough difference and I need to make a decision for Jack now. I know D finds it really hard to communicate with professionals, so even if help is offered it might not work or D might not be able to accept that help. Jack has been in foster care for many months and he needs to move to his forever home as soon as possible.

40.              I only really have two choices : send Jack home or make care and placement orders. Even if Jack can’t go home I don’t think foster care would be right for him. He needs a family to care for him until he is grown up.

41.              Before I can make a placement order I have to think about Jack’s welfare throughout his life - not just now when he is a baby, or even when he is 18. What will he think when he is 30, or 50 or 70? Whatever I decide will affect him for a long time.

42.              If Jack is adopted he will stop being part of his biological family. He has a relationship with his siblings and his mum and dad, although he has never lived with them. But even if he hasn’t spent much time with his family they are still his blood relatives. Jack might see his siblings and mum and dad but not very often. He will lose a chance to grow up with his biological family and do normal day to day things with them, which will be sad and confusing for him as he gets older, especially when he understands that that he is the only sibling who has been adopted. He might feel different and he might feel he has done something wrong. It is important that my decision is explained to him as he gets older. The guardian’s report mentions Jack’s welfare throughout his life, and the impact of being adopted. The local authority’s statements and reports don’t really say much about this. In future cases it would be good if they said more about this.

43.              The law also gives me a list of other things I have to think about to help me make the right decision for Jack. This is called the welfare checklist (Actually there are two). Jack is a normal healthy baby boy and doesn’t seem to have any particular needs or difficulties. Although he doesn’t have any special needs, like any other little boy he will need to be physically looked after, to live in a safe clean home, and to be ready to join in at school with work and play. That didn’t always happen for Oliver because home was not always in a good state, Oliver was not always clean, he was different from other children at school because he had accidents at school and the life at home was sometimes scary. I also have to think about change – but whatever I decide he will have to move to a new carer which will be confusing for him.

44.              Finally, the welfare checklist says I have to think about what harm Jack might suffer in future – that is really important. I don’t think that there has been enough change since the start of the case for Jack to be safe from harm with his mum and dad.

45.              I have decided that if Jack went to live with his mum and dad his needs would not be met and he would not be safe. The harm he might suffer could be physical, but is more likely to be emotional harm. The plan for Jack to be adopted is the only one that can meet his needs now and in the future, and I agree that it is in his best interests. I approve the care plan and make a care order.

46.              I understand why Jack’s mum and dad don’t agree to me making this order. The law says I can make the decision for them even though they don’t agree if Jack’s welfare demands it. I think it does. I dispense with their consent (decide for them).

47.              I make a placement order.

48.              Yesterday the lawyers asked me to give them more time to talk about what contact there should be if I agreed Jack should be adopted. I allowed more time for that because it is important. The care plan says that the only contact will be by letter once a year. But social services have agreed to think more about Jack seeing his siblings after he is adopted. They will have to do an assessment, but they hope that Jack will be able to see Oliver and Joe once a year. Social services have agreed to do an assessment of the parents if M carries on working with the Pause project, and if D can engage with the ADHD clinic. I am not making an order saying that contact must happen because it depends on those assessments but it would be a good thing for all three children if Jack can carry on seeing Joe and Oliver and if contact with Jack’s parents would be in his best interests I hope that this will happen too.

49.              Ms Phillimore says that the local authority should have thought more about contact before today. I think that would have been good, but I am pleased that they have done this now. When the agency decision maker (a senior person at social services) approved the plan for adoption the report they had (child permanence report) said that direct contact between Jack, Joe and Oliver might put the placement at risk. At that time Joe and Oliver had only met Jack a couple of times. Now they are seeing him about once a month and contact is going well, so things are a bit different. The agency decision maker was also told that it would be difficult to organise direct contact between Jack and his parents because of worries about D’s behaviour. That is true, but I think the idea of an assessment if the parents make change is a good one.

50.              I have read the care plan for Jack. I think that if Jack is adopted social services will do their best to make sure some contact happens if it is appropriate, but I understand that they cannot make any promises about that. The most important thing for Jack is to have a family who can look after him until he is grown up and who can keep him safe.

51.              If direct contact isn’t possible Jack will have indirect contact with his family twice a year. Social services will need to think about whether D needs any help with that because he isn’t very good at reading and writing.

52.              Jack’s mum and dad asked me to let them look after Jack. It is very sad that I haven’t been able to agree to that. They are Jack’s parents and if there was any way they could care for Jack safely they should be allowed to do so. My job is to put Jack first at all times. Sadly the problems that I have read about were so serious that I decided these orders had to be made – the law says I should not make such a serious decision unless there is no other option. I don’t think there is another option that is good enough for Jack.

53.              I would like Jack’s mum and dad to know that I understand they love Jack very much. I understand that this is why D has found it too hard to go to all the contacts. I know that they have done their best and Jack will know that too when he is older.

54.              I have been told that Jack’s mum is working with PAUSE and that she is finding that support really helpful. I hope she continues to work with them. I hope that D will go back to the ADHD clinic too.

55.              If they want to M and D can show this judgment to their doctor, to the ADHD clinic and to Pause.

56.              D’s lawyer is going to read this judgment through with him at her office. I’ve tried to write it simply, so that he can understand it with help.

57.              When I made my decision about Jack I was asked if I would publish my judgment. Junior judges like me don’t usually publish their judgments but I agreed, because I don’t see any reason not to publish the judgment and everybody agrees I should. Everybody agrees that I should take out the names of the parents, children and social workers to make sure that private things stay private for Jack and his siblings. I had already typed my judgment so that D can have it read and explained to him, so it hasn’t taken very much extra time to get it ready to publish. I’ve taken out some details that might identify Jack or his siblings.