England and Wales Family Court Decisions (other Judges)

THE FAMILY COURT SITTING AT OXFORD

Before Her Honour Judge Owens

                                                                                              CASE NO: OX19C00166

25^TH SEPTEMBER 2020 TO 2^ND OCTOBER 2020

 

OCC v P

Mr Forbes, Counsel, for OCC

Ms Bonnefoy-Jenkinson, Counsel, for the First Respondent Mother, M

Mr Jones, Counsel, for the Second Respondent Father, F

Ms de Freitas, Counsel, for the Third Respondent A acting through their Children’s Guardian

 

This judgment is being handed down [in private] on (21^st October 2020). It consists of    50 pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.                         

Introduction, Background and Evidential Summary

 

This is the final hearing of the Local Authority's applications for care and placement orders in relation to A, a 10-month old boy. A’s parents are M and F.  

 

In 2014 M was diagnosed with Emotionally Unstable Personality Disorder, said to have been in remission in 2017. She has a chronic history of drug misuse. M has two older children from previous relationships. B, aged 10, resides with his maternal grandmother under a Special Guardianship Order. C, aged 2, resides with her father under a Child Arrangements Order.  F has no previous children. He is an Albanian national who moved to this country in 2013. He has subsequently secured a 30-month visa, though there were discrepancies in the information that he provided to the Home Office.

 

M and F had been in an on/off relationship for several years but started living together in 2019.  On 21^st July 2019 whilst pregnant with A, M was admitted to hospital with vaginal bleeding. She was concerned that she was at risk of miscarrying. Hospital staff were told at the time that she had been accidentally punched in the abdomen whilst caught in a scuffle; M has subsequently alleged that it was F who pushed her in the stomach causing her to fall (C187b  & C377).

 

A was born 3 weeks prematurely on [a date in] 2019. Whilst in hospital M displayed erratic behaviour, and it is alleged she prevented urine samples being taken from A for the purposes of a toxicology report.  It is also alleged that she failed to follow advice not to walk around the ward with A in her arms due to the risks posed by her history of seizures. A displayed symptoms consistent with drug withdrawal (C1).

 

The application for a care order was issued on 16th December 2019. The Local Authority sought removal of A from the care of his parents. At the first hearing on 17th December 2019 the District Judge hearing the application declined to sanction interim separation (AAl), instead making an interim supervision order. M and A were discharged from hospital.  A tight written agreement was put in place, which included provision for M’s care of A to be supervised either by F or by D (a neighbour).

 

On 7th February 2020 M reported a serious incident of domestic violence perpetrated by F. She described F pulling her hair and punching her in the face several times before grabbing her around the neck (PD77). M set out in her police witness statement that F had been violent to her on multiple occasions (PD78). These occasions are set out in the final threshold document appended to this judgment (items 3 (1) to (9) - A153-A160 Bundle) and in M’s second statement (C187a - 187d). F denies the allegations that he was violent to M, and asserts that on 7th February 2020 M, "began hitting herself on her face and body with her hands repeatedly in a (sic) aggressive manner." (C126).

 

On 10th February 2020, the court granted an interim care order, sanctioning A’s placement in foster care, where he has remained to date. A displayed further withdrawal symptoms following his placement in foster care (C95). Hair strand testing has been undertaken of both parents on multiple occasions. The results are contained in section E of the Bundle. In summary, they show varying levels of cannabis and cocaine use throughout the testing periods, save that F's results are negative since June 2020.

 

A psychiatric assessment of M was completed in March 2020 (E67-E84) by Dr Adshead.  She concluded:

i.                      M has suffered with significant mental health problems since she was 13. The main symptoms have been mood disorder and self-harming behaviours; which would be consistent with a diagnosis of borderline (or emotionally unstable) personality disorder (E76).

ii.                    She agreed with Dr Yousif in that, to some extent, her BPD is in remission. However, it could be argued that her return to drug taking after the birth of her son is evidence that she is still struggling with mood regulation (E77)

iii.                  There is no evidence base that would allow her to provide a reliable opinion on the question of whether M is able to sustain an alcohol and drug free lifestyle at this stage; “the answer to the question will emerge if and when M attempts to lead and sustain an alcohol and drug free life style... I suspect she is at significant risk of relapse (E78)”

iv.                  M would benefit from engagement with Turning Point, Talking Space and the Complex Needs Service (E79).  Dr Adshead did not feel able to comment on prognosis or timescales (E80).

 

 Parenting assessments of each parent were undertaken by an ISW and her initial report of 23^rd March 2020 (E85-E143) recommended:

i.                      There is some ambiguity in the status of the parents' relationship. It would not be safe or appropriate for the parents to co-parent A (E143).

ii.                    M could not care for A on her own (E145). Concerns include her mental health (she has a diagnosis of emotionally unstable personality disorder), a history of inconsistent parenting, and continued drug misuse.

iii.                  F could provide good enough care as a sole carer (E145) and there are no concerns about his basic care (E128). He would need to prioritise A over his relationship with M (E128). A transition by way of a parent/child foster placement was recommended (E147).

 

The ISW was provided with the up to date HST results for F and asked if these altered her opinions in any way. Her addendum report concluded that F appeared to have been dishonest in a key area of his initial assessment in respect of his drug use. She concluded that F had likely lied and put his own interests above the best interests of his son, and therefore his commitment to parenting A should be questioned and as to whether it would be safe to leave A in his sole care in any event (E184).

 

An initial viability assessment was undertaken of M's neighbour, D, which was positive. D subsequently withdrew from the assessment process.

 

A full connected persons assessment was undertaken of the paternal grandparents. This was negative, and no party has sought to challenge its outcome.

 

A full connected persons assessment was undertaken of the paternal uncle and aunt, E and G, which was negative (C240). F seeks to challenge the outcome of this assessment.

 

This final hearing has proceeded as a hybrid hearing given the ongoing difficulties caused by Covid-19.  Both parents and their legal representatives have been present in court, with all other advocates, parties and witnesses participating remotely via CVP.  M became ill overnight on the penultimate day of this final hearing so, with her consent, she participated remotely for the final day.  F has had the benefit of an Albanian interpreter throughout, though it was not possible to source an interpreter able to attend court physically.  The interpreter therefore participated remotely and, since F confirmed that his basic understanding of English was such that he did not require all of the proceedings to be translated, the hearing proceeded on the basis that he only required translation as and when he indicated that he did not understand the English concerned.  When it came to his evidence, however, he quickly failed to answer the question he had been asked, even in evidence in chief, so for that part of the proceedings all of the questions put to him and his answers were translated.  Since it only became apparent on day one of the final hearing that F’s phone did not enable him to connect separately to the interpreter, all translation for him was of necessity conducted sequentially.  The timetable for the case had already envisaged that I may have to reserve judgment since evidence had been timetabled up to the end of day 5, and this turned out to be the case in light of the further delay caused by sequential translation and despite advocates’ initial optimism that time estimates had been overly generous.

 

In the course of this final hearing I have read the evidence contained in the four Bundles that have been produced (contrary to the normal expectations of PD 27A) - the Court Bundle, Checklist Bundle, Police Disclosure and Placement Bundle.  I have also heard evidence from the allocated social worker, the ISW, the author of the connected persons assessment of E and G, M, F, E (also with the assistance of an Albanian interpreter), and the Guardian.

 

Parties’ Positions

 

The Local Authority seeks findings regarding threshold as set out in Appendix A to this judgment, and care and placement orders in respect of A.  The Local Authority does not support any further delay in making decisions about permanency.

 

M alleges domestic abuse as set out in the final threshold document and would like A to be returned to her care and opposes the final care plan of adoption.

 

F does not accept that he has perpetrated domestic abuse as alleged by M, nor does he accept that he has misused drugs, though he does not seek to challenge the hair strand test results.  He seeks the return of A to his care, or if that is not found to be in A’s best interests then he would like A to be placed with E and F in France.   In relation to the latter option, he asks me to consider delaying a decision so that E and F can be further assessed. He opposes the final care plan of adoption.

 

The Guardian supports the making of care and placement orders as being in A’s best interests and does not support any further delay in making a determination about this.

Relevant legal considerations

 

In addition to considering section 31 (2) of the Children Act 1989 regarding threshold, I have considered the welfare checklist in section 1(3) of that Act and had regard to the article 8 rights of the parents and the children.  I have also had regard to the article 6 rights of all concerned, particularly the parents, not least in relation to the hybrid hearing that I undertook to conclude this case.

 

I was reminded by advocates and had reminded myself of the need to consider that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (R v Lucas [1981] QB 720).

 

I have also considered the options for the children applying the considerations set out in Re B-S (Children) [2013] EWCA Civ 1146.  As there is a placement order application for A, I have also had regard to the welfare checklist set out in section 1 of the Adoption & Children Act 2002.  I have had regard to the guidance in Re B (A Child) (Care Proceedings) [2013] UKSC 33 to the effect that adoption is a draconian outcome of last resort and such orders should only be made where necessary, proportionate and where all other realistic options have been ruled out.

 

I have been mindful of the fact that before I can make placement orders, I must be satisfied that the welfare of A requires the consent of his parents to be dispensed with (s51(1) Adoption and Children Act 2002 (and also Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535). 

Findings

 

The threshold findings sought by the Local Authority are appended to this judgment.  The first item relates to M’s mental health.  Both parents accept her diagnosis of Emotionally Unstable Personality Disorder, and that when her mental health is poor this will mean that she is unable to provide consistent and stable parenting to A.  However, M denies that she has not been able to engage with professionals to improve her emotional availability and denies that her mental health remains poor.  As noted earlier, she was assessed by Dr Adshead during these proceedings.  

 

Dr Adshead had, as is usual, had access to M’s GP notes as well as the papers in the case and had appointments with M.  Her conclusions were not challenged by M as she was not required to give evidence.  Dr Adshead in answering the question put to her about whether M has a mental illness or disorder (E76-E77), was of the opinion that “M has suffered with significant mental health problems since she was 13.  The main symptoms have been mood disorder and self-harming behaviours; which would be consistent with a diagnosis of borderline (or emotionally unstable) personality disorder…People (sic) BPD often turn to substance misuse as a means of managing their mood and arousal problems…People with BPD often exhibit compulsive self-harming behaviours; such as eating disorders, overdoses, impulsive suicidal behaviours and social rule breaking.  However, I note that none of these behaviours appear to be recent or current for her; and I would therefore agree with Dr Yousif that to some extent, her BPD is in remission.  However, it could be argued that her return to drug-taking after the birth of her son is evidence that she is still struggling with mood regulation (which may have been exacerbated in the post-natal period).  M gave a clear account of the function of cocaine in her life to help her with chronic feelings of psychological pain and (I suspect) symptoms of depression such as lack of energy” (E77).  The picture in relation to her mental health is therefore a complex one and, I find, it is not as simple as saying that she is wholly in remission as Dr Adshead notes.  She has clearly continued to use drugs as the unchallenged hair strand test results show and, on her oral evidence to me, has only just begun to take steps to address her drug misuse and seek help from Complex Needs as recommended by Dr Adshead.  She told me that she has only just sought a referral through Talking Spaces to Complex Needs and has only just sought assistance again from Turning Point, and that this was at best only the very beginning of what she needed to do in order to address her issues.  She has not produced anything from Talking Spaces, Complex Needs or Turning Point to back up her assertion of seeking further assistance from them.  I am mindful of what the ISW told me about her tendency to say what she thinks that people want her to say.  At the very least her oral evidence to me did indicate a willingness to start to address her issues since acknowledging that she needs help is a necessary first step.  However, it follows from her oral evidence to me that she has not fully addressed her mental health needs or engaged with professionals to improve her emotional availability to A. The finding that I therefore make in relation to item 1(i) on the threshold is that M has been diagnosed with an emotionally unstable personality disorder and has been unable to address her mental health or engage with professionals to improve her emotional availability to A.  Whilst her mental health needs remain unaddressed through recommended treatment, she is likely to be unable to provide consistent and stable parenting to A and he would be likely to remain at risk of emotional harm in her care (emphasis in italics is mine to show the subtle difference in wording between my finding based on the evidence and the original finding sought).

 

Item 1(ii) relates to the impact of M’s emotionally charged responses upon A and her inability to recognise this.  The Local Authority rely upon two factual allegations as illustrative of this, namely aggressive outbursts in the hospital shortly after A was born and the volatile relationship with F.  M denies all of this allegation including the aggressive outbursts at the hospital and F’s response is that he only became aware of ‘disruptive’ behaviour at the hospital during these proceedings.  The entries in her medical records following birth provide ample evidence of M becoming aggressive at the hospital as well as her being inconsistent about whether a urine sample could be taken from A.  These entries are summarised in the report provided by Caroline Jackson from the NHS Trust at C76-92), but include noting that M became ‘angry’ and ‘spoke in an aggressive tone’ when spoken to about a urine sample from A on 10^th December 2019 (C77), that she became ‘hostile’ on 9^th December 2019 (C80) when spoken to about the same topic, and that she became ‘very annoyed’ about this again on 10^th December 2019 (C81) and that it was difficult to discuss “any part of her and her baby’s care with M as she gets very angry and upset very quickly and is very combative” (C81 again).  Based on this credible and compelling evidence, noted by professionals at the hospital at the time, I am satisfied on balance of probability that M was aggressive towards professionals at the hospital.  The second factual allegation relates to the incident on 7^th February 2020.  Both parents accept that there was an incident then, though the precise facts are in dispute.  They also both accept that on either account given by them, this was a volatile and distressing situation for A, which meant he was directly exposed to this volatility and hence at risk of emotional and physical harm during the incident.  This acceptance was only really apparent during their oral evidence to me and in response to cross examination by Mr Forbes for the Local Authority and Ms de Freitas for the Guardian.  To some extent, it was a grudging acceptance, in my view, since both also sought to blame the other for the incident overall.  M’s oral evidence to me about having now sought help from the Freedom Programme is also relevant to this issue, since she indicated that she does now understand that she needs such help to avoid being in relationships that involve domestic abuse in the future.  Based on this, as well as her acceptance that she has a history of forming relationships with partners who are abusive to her, it seems clear that she does lack insight into the impact that her emotional volatility will have upon A.  She also told me that she has only just sought a referral through Talking Spaces to Complex Needs and has only just sought assistance again from Turning Point. I find this threshold criterion to be met on balance of probabilities.

 

The next threshold items relate to drug misuse by both parents.  2(i) relates to M’s drug misuse and the allegations that she interfered with urine samples being taken from A at the hospital and prevented him from receiving appropriate medical care.  Item 2(ii) alleges that M continued to use cocaine after birth and whilst breast-feeding A, thereby exposing him to significant harm through ingestion of cocaine in breast milk. Item 2(iii) is that M has failed to engage with drug services, has failed to achieve abstinence and has failed to prioritise A’s needs over her need to consume drugs.  Most of this is undisputed by M, though she does now say that she is motivated to engage with drugs services and denies that she refused or tampered with the urine test for A at the hospital.  F also does not dispute these items, though he does indicate that he was unaware of M’s drug use until the hair strand test results came back in February 2020.  A was documented as suffering from possible drug withdrawal symptoms both whilst in hospital and after his removal from his parents’ care (C84 possible drug withdrawal symptoms noted; GP advised showing signs of withdrawal C95).  As the social worker noted (C69), medical opinion was that if M’s milk contained cocaine at a medium to high level, then A was at high risk of seizures.  The evidence of significant actual and risk of significant harm to A is therefore clearly made out, I find.

 

In relation to the urine test at the hospital, M says that she did not refuse it and did not tamper with the collection bags.  Medical notes completed at the time on 9^th December 2019 show a recording that “M declined baby having a urine bag attached for toxicology” (E4).  Later, on 10^th December 2019, the notes again show her refusing to allow a third urine sample because she said that two samples were collected the day before (E4 again).  However, earlier samples were not obtained according to the notes which show that on 9^th December 2019 M disposed of the urine collection bag (C80), and later on that same day was seen by a maternity support worker to be trying to remove the bag (C80 again).  She also refused to allow a medical professional to apply a urine bag on 10^th December 2019 (C81).  She was noted to have been inconsistent in agreeing to, then refusing, then requesting testing in the period 14^th to 15^th December 2019 (C82) and was found by a member of the nursing staff to have A’s nappy open and to be looking at the urine bag which was coming away from the baby on 15^th December 2019 (C82).  There then followed another instance of the bag apparently becoming detached, resulting in a failure to obtain a sample before a maternity support worker was able to obtain a urine sample in a pot on 15^th December 2019.  M told nursing staff at the time that other nursing staff had taken the bag off, but there is no evidence of this in the notes and this would represent a significant failure of professional standards if this had occurred.  In addition, I find that it is significant that M also said to the staff at the hospital on 10^th December 2019 that there was no need for the test as her drug tests and hair strand tests were all clear during pregnancy (C81-C82).  This was not only untrue; it was hiding the fact that (as her February 2020 hair strand test results and her own evidence would later confirm) she had continued to take drugs during pregnancy and afterwards.  In her oral evidence to me M said that the urine sample bag would not stay stuck on such a small baby.  She did not say this at the time and no such difficulty was noted by any professional at the hospital.  On balance, I find the professional records more credible and consistent than M, who I find was also clearly attempting to hide the evidence of her drug use at the time since she had told staff at the hospital that she had been tested and was negative, and I therefore I find items 2(i) to (iii) proved on balance of probabilities.

 

Item 2 (iv) on the threshold relates to F’s drug use, and item 2(v) relates to his knowledge of M’s drug use.  He accepts that he has had three positive hair strand test results during the course of these proceedings and, despite asking questions in clarification about possible contamination of the samples and receiving responses that refute such a possibility, he did not seek to question any of the experts about their reports.  He told me, as he set out in his written evidence, that he has never consumed drugs apart from on one occasion three years ago when he took cocaine.  His oral evidence to me was that he had been exposed to cocaine somehow, specifically “the positive test results explanation is the contact that I had with M, and then since that contact stopped the tests show negative”.  He has provided no other explanation than this and nothing at all in his written evidence (beyond as I have noted one admission of consumption of cocaine three years ago).  He did not, contrary to the submissions from Mr Jones on his behalf, allege that somehow he had been unknowingly made to ingest them and nothing of this was put to M at all in cross examination by Mr Jones.  In any event, both the proffered explanation of ‘contact’ with M or the submission of unknowing ingestion are both inherently unlikely in my view.  The former because of the expert evidence about the presence of metabolites and the latter because he would have been likely to feel the effects of ingestion and noted them, particularly given the levels recorded in the hair strand test results.  Contamination is the only other issue raised by him in the questions asked of the experts. The expert evidence about this is, frankly, overwhelming.  At E21i, E156, E158, E162 and E196 the expert evidence sets out in some detail the testing methodology and unlikeliness of contamination accounting for the positive test results.  In addition, as I have noted, the presence of metabolites and cocaine above the recommended cut off level by the Society of hair Testing and the European Workplace Drug Testing Society “is a high indication of consumption of cocaine…In the case of F, the concentration of cocaine and cocaine metabolites detected in the hair shaft is unlikely to suggest one off encounters/exposure with cocaine.  It is more likely that cocaine has been consumed repeatedly over the monitored period” (E163).

 

I also have the evidence in relation to M’s drug use.  Her hair strand test results were also positive for consumption of cocaine and cannabis at the same time as the F’s positive test results.  F accepts the positive hair strand test results in relation to M (as was put to him by Mr Forbes for the Local Authority) and seems to have done so from the outset.  M also told me in her oral evidence that, whilst she and F would not consume drugs together, they would take them at the same times and that F would supply them to her.  She gave credible and compelling evidence about cocaine consumption separately by each of them and did seem genuinely fearful when she realised the implications of having named F as the person who purchased drugs for her.  One trying feature of this case has been delays on the part of both parents in filing final evidence.  In F’s case, this has included attempts to file documents at the last minute and during the hearing, including a significant number of text messages between him and M, some of which were already appended to his final statement but he wanted to produce many more in the middle of hearing her evidence.  The Local Authority then sought his permission to examine his phone not just in relation to the additional text messages but also for any other relevant data.  He was given an opportunity to take legal advice about this and the implications if he were to refuse but declined to permit this examination.  It seemed from this that he was keen to produce any evidence that he thought might paint M in a negative light, but equally may have had something on his phone that was not positive about him and this went beyond the text messages with M.  On balance, it is simply not credible that he had not consumed drugs regularly as shown by the hair strand test results, and I found M to be the more credible of the two about their drug use.  The fact that both tested positive for precisely the same types of drugs over a similar timeframe when they were together corroborates this conclusion as Mr Forbes pointed out in his closing submissions.  F also said in his threshold response that M was able to go out on her own at times during her pregnancy and after A was born (A156).  He also put this in his first statement (C124).  However, it is simply not credible that he did not notice on any occasion when she returned that M was under the influence of drugs if she had consumed them when away from him as he alleged.  I therefore find these two threshold allegations proved on balance of probabilities.

 

The next set of threshold allegations relate to domestic abuse.  Item 3(i) is that “M has a history of volatile relationships and has alleged domestic violence in her previous relationships (F42; C10-11).  M has not undertaken any work to recognise a volatile relationship and she would likely place herself and A at risk of both physical and emotional harm by entering into similar relationships”.  F accepts this, but M response is that this is “denied.  I did ask for referral but did not get any help”.  It is not clear from her response what precisely she is denying.  The fact of her previous allegations is clear on the paperwork and she herself talks about her previous abusive partners (C49, C368 in her statements), though she appears to have minimised or denied this to Dr Adshead and the ISW when they spoke to her for their assessments.  Her oral evidence to me was that she has now completed a preliminary step in accessing the Freedom Programme but has not yet commenced the programme itself.  She accepted, when asked by Ms de Freitas about this, that this was in the very early stages.  It therefore seems abundantly clear that M has a history of volatile relationships, has alleged domestic violence in her previous relationships and has not yet undertaken any work to minimise the risks of this to her and A.  I also find item 3(i) proved on balance of probability.

 

Item 3 (ii) and the allegations listed thereunder at 1-9 relate to the specific instances of domestic abuse that M alleges were perpetrated against her by F.  All of these are denied by F.  M has made allegations about this to the police and has withdrawn them, something she does not dispute.  She is also somewhat of an unreliable narrator in the past as the evidence from Dr Adshead notes (E79), and this is supported by the evidence of the ISW who told me that she had a sense that M tried to tell her what she thought she wanted to hear.  The ISW was also very clear that M’s apparent recollection of a visit by the ISW to her house during the assessment was wholly incorrect.  However, this and her dishonesty about tampering with and refusing the urine test for A in hospital, her dishonesty about the relationship with F continuing until May of this year, and her dishonesty about her drug misuse whilst still breastfeeding A do not necessarily mean that she is lying about the domestic abuse allegations.  As Mr Forbes submitted, the matters that she has been dishonest about can be seen as different to the domestic abuse allegations.  The former involve her in culpability for the acts involved, whereas it is alleged that F perpetrated the domestic abuse on her.  As is well known, reasons for lying can vary widely depending on the individual facts and circumstances.  That is precisely what R v Lucas reminded judges to be careful about.  I have therefore examined the evidence about each of these allegations carefully.

 

The first is that early in 2019 F kicked M in the stomach causing her to bleed whilst pregnant.  C189b gives her primary account of this in her written evidence for these proceedings.  It is not disputed that M was admitted to hospital in July 2019 with concerns about vaginal bleeding whilst pregnant with A, nor that there appear to have been concerns about this on at least one other occasion as the medical records and both parents’ statements show.  M described an incident in her oral evidence to me when they were at a nightclub, F had been drinking and was involved in some sort of altercation with some other men and M ‘got in the way of it’.  She described him giving her a ‘push slash shove’ with contact being made hard low down in her stomach and she could not say if his hand was closed or not.  One of the striking aspects of her evidence about this to me was her repeated attempts to minimise what she was describing F as having done, saying more than once that she ‘put herself in the firing line’, though also clearly describing him telling her to move of get out of the way before pushing her hard enough to cause her to fall down.  This is largely consistent with what she appears to have told professionals the hospital at the time (Checklist Bundle HN271-HN443, especially HN306), though there is a discrepancy about the stage of pregnancy which is noted to be 15 weeks as opposed to the 4 weeks that M’s evidence suggested.  The other key apparent inconsistency in her account of this incident is the reference to a kick being involved in her statement at C187b.  This is at the same point in her statement where she refers to it being about 4 weeks into the pregnancy (C187a).  There is also evidence from the police about F being stopped for drink driving in July 2019 at the nightclub where M said the assault took place.  M said that this was the same night as the blow to her abdomen.   F does not dispute that he was convicted for drink driving as M described, nor that when stopped by the police he gave his brother’s name and date of birth initially, until M corrected him.  She gave very credible and extremely compelling evidence about F ‘shooting her a look to shut up’ when she corrected him.  In addition, I have noted that the conviction for drink driving was sentenced with a community order and a 26^th month disqualification, suggesting a significant alcohol reading, which is also consistent with what M told me about him being very drunk and scaring her by his erratic driving in attempting to drive out of the nightclub car park.

 

The second specified incident of alleged domestic violence is on 29^th December 2019 when M alleges that F slammed her head into the wooden bedframe in her bedroom, causing her a split to her head.  She gave credible evidence about this, describing (like the incident in July 2019) F being significantly in drink.  F simply denies that this happened at all.

 

The third and fourth allegations are that on 11th and then 22nd January 2020 F punched M causing a black eye, something which again F denies happened. The fifth allegation is that F pulled a lump of M’s hair out on 23^rd January 2020.  The final allegations all relate to the 7^th February 2020.  All of these are denied by F.

 

What is notable about the split to her head, the January black eyes and the black eye on 7^th February 2020 is that there are photographs of injuries to M and of a lump of hair said to have been pulled out by the F contained in the police disclosure (PD77-PD78).  When asked about these, both at the time of police interview and during cross examination in this hearing, F has given a range of responses and explanations, none of which are consistent, I note.  He initially told me that the black eyes could have been caused by make-up (though I have to say they look pretty convincing on the photographs) but gave no explanation for the split to her head.  He gave no explanation for the quantity of hair photographed in the sink (which does appear to be more than one would normally expect to come out as a result of washing or brushing hair, in my experience).  He then went on to say (in answer to questions from Mr Forbes) that the black eyes had been caused by M hitting herself during a seizure when visiting her daughter for contact, a detail that he significantly failed to mention anywhere in any of his previous evidence.  

 

The split to M’s head was also independently witnessed by the community midwife (C118), though M apparently told her that she had tripped over the dog and ‘whacked her head on the mantlepiece’.  Clearly, M gave a conflicting account about this to the midwife, but it is significant in my view that this was whilst she was under the intense scrutiny of child protection with A in her care and before she had made any of her other allegations about domestic abuse from F.  She already knew from the previous proceedings involving her two elder children how seriously professionals and the court would view domestic abuse whilst a child was in her care, I also note.

 

F’s evidence made much of the fact that M had continued to remain in contact with him even after they apparently split up in February 2020 (this is now accepted by both parents to have been untrue as they accept continuing their relationship until May of this year), that she has withdrawn her allegations to the police and that she has previously lied and misled professionals.  However, this overlooks that he has also been manifestly dishonest (as I have found) in relation to his drug use, when stopped by the police for drink driving, and (as I will come onto later) with the authorities in relation to his application to the Home Office.  M’s withdrawal to the police in relation to the 7^th February 2020 allegations did not say that nothing had happened, simply that she had exaggerated (though without any details of where) and that she wanted to focus on re-building their relationship for the benefit of A (PD82).  Her accounts of what is said to have happened on 7^th February 2020 are also broadly consistent, from her initial complaint to the Police (PD67), to her first police statement (PD75-76), as well as being consistent with the photograph of the injuries she says she sustained (PD78) as a result.  They are also consistent in her statement of evidence to the court (C187b-C187c) which, coupled with her oral evidence, shows me that there were in fact two incidents of bleeding caused by blows to her abdomen, one at about 4 weeks into the pregnancy which involved a kick and the one that is on the threshold document and occurred at about 15 weeks into the pregnancy and arose at the nightclub in July 2019.  

 

F, on the other hand, was wildly inconsistent in his various accounts, especially in his oral evidence to me and, at times, seemed unwilling to answer the question he had been asked and especially when it touched upon the issue of domestic abuse.  I’ve already noted some of his inconsistencies.  In addition, for example, his evidence varied in terms of whether he had ever seen M hit herself before.  He said in his final statement at C349 he had seen her do this before more than once.  He did not mention this to the police before.  He contradicted himself in his evidence to me when questioned about this by Mr Forbes, saying that he hadn’t seen her hit herself before and he meant instead that he had seen her behaviour such as reacting emotionally. My comment about him seeming unwilling to answer questions is particularly relevant here because at this point in his evidence he simply stopped answering Mr Forbes and instead said that he did not understand where Mr Forbes was trying to get at with his questions.  This was despite being initially requested and then told several times during his evidence by me and Mr Forbes that he did need to answer the questions he was asked. Instead, he frequently deflected his answers as I have just noted, or tried to refer to the text messages between him and M, pointing out the frequency and number as if this somehow explained why (on his case) she would be making up allegations of domestic abuse.  

 

Mr Jones tried to make much of these text messages and of M’s reaction when shown them in the witness box.  I am not clear what relevance the messages have to the disputed issues since the ones that were produced all relate to the period before the couple separated in May 2020 and they agree that they continued their relationship between February 2020 and May 2020 without telling any of the professionals involved and when they knew they should have done so.  

 

M’s reaction to the production of the text messages, when she said she had not read them before (they were produced late in the proceedings), and when they were provided in a format that did not immediately make it clear what period they related to was perhaps predictable.  She initially did not recognise them all, was given time to read them, and then accepted that the ones she had not recognised before were ones sent between her and F.  She had earlier questioned whether F had somehow made up the messages she had not recognised, but did not pursue this when she had had a chance to read the messages.  Mr Jones submitted that this was in itself something that undermined her credibility and noted her answer in cross examination “those were before”, submitting that she was ‘clearly trying to suggest that they related to before A was born’.  I did not understand her to be suggesting that, rather that the text messages were before they finally separated in May 2020.  This fits more logically with the actual dates of the messages themselves and the questions that she was being asked at the time, in my view.  Further, I could see how messages suggesting that they remained in a relationship after they separated would be of concern to either M or F given the admitted concealment of their ongoing relationship from February to May 2020.  

 

F also provided a very strange description of his conduct during the incident on 7^th February 2020: “ I tried to calm her down, she began walking up the stairs and I followed after her, I tried to stop her from going up the stairs as I was worried she would lock herself in the room with the baby and do something to herself or our son.  Whilst she was walking up, I used my hand to touch the side of her face, I did this in a gentle manner as I was trying to console her and trying my best to calm her down” (C125).  On his account, M was behaving in a way that gave him significant concerns that she would harm herself or the baby and was shouting repeatedly at him.  Touching her face gently whilst in the middle of a heated argument and while she was walking up the stairs (presumably with F behind her as he said he was following her) is just not a plausible account and wholly unlikely as Ms de Freitas for the Guardian noted in her closing submissions.  I did not find F to be a credible witness at all about this aspect of the case.  On the other hand, M was credible about these allegations, with some compelling and convincing details such as her initial reluctance to reveal the domestic abuse until she sought advice in January 2020 from someone else who told her to document her injuries, the look that F gave her when she corrected his information to the police during the drink driving incident, her descriptions of his drinking and subsequent erratic and violent behaviour, and the fact that (as she told me) there had been a number of incidents during their relationship so sometimes she did get some of the details mixed up.  This all had the ring of truth about it, unlike the evidence of F.

 

In addition, there was the troubling detail of F ringing his solicitor in the middle of the incident on 7^th February 2020.  That he did this is not in dispute.  What is troubling is why he rang his solicitor rather than the police or social worker if, as he alleged, M was behaving so strangely and threatening to leave with A in breach of the written agreement and in circumstances that (on his account) caused a serious concern for the safety of A.  He gave no credible explanation for this to me.  Mr Forbes submitted that it was the action of someone who thought they might be in trouble and I tend to agree that this is what appears more likely.  In addition, F’s contention that M caused the injuries to herself (as he said in his police interview and in his evidence to this court), lacked credibility.  He was asked to demonstrate how she did this (bearing in mind some of the injuries photographed on the differing occasions included black eyes) and he demonstrated hitting himself on the side of the head with his hands, nowhere near an eye.  I do find all the domestic abuse allegations detailed in the threshold document proved on balance of probabilities.

 

The final group of threshold allegations relate to lack of honesty with professionals on the part of both parents.  I have already made findings about a lack of honesty on the part of both parents around their drug misuse in relation to earlier threshold aspects.  M accepted a lack of honesty in her dealings with professionals when she was assessed by Dr Adshead (E70).  She has also admitted being dishonest to the ISW about her drug misuse (in her final statement at C367).  It is also not disputed that F gave a false name and date of birth when stopped by the police for drink driving as I have noted earlier.  His explanation to me about this was wholly lacking in credibility, I note, since he tried to tell me that it was just some sort of mix-up about having similar sounding names as his brother and his brother having bought a car and registered in his name (though I am not sure why his brother, who lives in France, would have gone to the trouble of purchasing and registering a car in the UK).  In any event, as Mr Forbes pointed out in his closing submissions, F not only gave a false name but also gave a false date of birth and it was abundantly clear to me that it was only the unexpected correction by M that prevented F from pursuing what could very well have become an attempt to pervert the course of justice.  Both parents have also accepted that they lied to professionals throughout these proceedings about remaining in a relationship up until May of this year.  M clearly accepted that she lied about this because she knew it would go against her, and particularly considering the domestic abuse concerns about her and her lack of ability to protect herself or A from this.  It also, I am afraid, speaks volumes about the lack of priority that either parent gave to A, since they have clearly prioritised their relationship and their drug use over A.

 

Finally, on the issue of dishonesty with professionals and those in authority, I have the concerning evidence about F’s application to the Home Office for leave to remain in this country.  He is recorded on that application (Checklist Bundle ED6-Ed26) at more than one point stating that he has no family left in Albania (and does not disclose his family in France).  He did not disclose his conviction for drink driving, either.  At the end of the application is a declaration of truth and warnings about the potential for an application to be refused if false information were to be given and a prosecution to be brought.  The application was clearly completed by F’s immigration solicitors, but they have signed the declaration stating that the contents have been discussed and confirmed (ED26) with F.  Despite this, F tried to tell me in his evidence that any mistakes were those of his immigration solicitors and even went so far as to say that the application had not been checked with him, though he did seem to recall having some discussion with the solicitor about it.  The solicitor in question has been confirmed as being of Albanian origin and to have had regular contact with F via her mobile phone (ED1) so it seems more likely than not that what F was trying to tell me about not knowing about the content of the application was simply untrue.  It also seems more likely than not that the reason for lying about his identity when stopped for drink driving was in fact worry that this may negatively impact upon any immigration application that he may make (the application process having commenced barely a month later in August 2019).  Finally, it was only in July of this year that F’s immigration solicitors wrote to the Home Office to correct the information about F no longer living with M and A, noting that they had informed the Home Office of the discrepancy about the lack of convictions at F’s appointment with the Home Office.  F’s immigration solicitors’ letter (C310a) makes it clear that once an application has been finalised and approved, they close their file, and this took place on 27^th January 2020.  Any responsibility to notify the Home Office of a change of his circumstances, such as no longer living with M and A and the inaccuracies about lack of family in Albania and no mention of his brother and sister in France, would therefore have been for F to notify.  Yet, as he acknowledged in his response to threshold, he did not do so, instead asking his solicitors to do so after the event.  He did mention to his solicitor on 13^th February 2020 when attending their offices unannounced to collect his passport that his son was no longer living with him, but he did not provide them with full details, no instructions and they had no funds to act in any event (C310a).  It seems therefore very clear to me that F deliberately lied in his immigration application about his conviction for drink driving and the fact that he had family in both Albania and France, delayed correcting this, and subsequently deliberately withheld the relevant details about A no longer being in his care after 7^th February 2020.   It is also clear that it was only because the Local Authority during these proceedings queried what he had done about notifying the Home Office that he then took steps to notify as he was obliged.  At this point I think it is pertinent to note that I may disclose a copy of this judgment to be disclosed to the Home Office regardless of the outcome of this case.  I find the final threshold allegations about dishonesty on the part of both professionals to be proved on balance of probabilities.

I have next considered welfare disposal with regard to A, and have considered the relevant headings under the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002.

 

The first relevant heading under both checklists is A’s wishes and feelings taking into consideration his age and understanding.  At 10 months old, he is too young to be able to articulate these.  No doubt he would wish to be safe and brought up in a stable and loving environment, and as the Guardian noted, it can be assumed that he would want to grow up in his birth family if that is safe for him (E218).

 

The next relevant headings relate to A’s physical, emotional and educational needs.  He has the usual needs of a 10-month baby boy, but in addition may have additional needs arising from his exposure to drugs whilst M was pregnant and then whilst she breast-fed him milk which contained cocaine.  We know already from the evidence of the Neonatal Outreach Team which the social worker noted in her statement that if M’s breast milk contained cocaine at medium to high level this would have meant that A was at high risk of seizures (C69).  The potential for A to develop issues as a result of this drug exposure as he grows older is something both the allocated social worker and Guardian have noted in their evidence to me.  Future carers will therefore need to be aware of this.

 

The next headings relate to the likely effect on him of change in circumstances and of ceasing to be a member of his birth family.  A is currently in a foster placement and, since this is not a foster to adopt placement, a change of placement will inevitably follow regardless of the decision that I make about what is in his welfare interests. Such a move is going to be distressing and confusing for him, as both the social worker and Guardian also acknowledged (orally in evidence to me for the social worker, E218 for the Guardian).  However, both also note that A has thrived in foster care and settled well.  This bodes well for his being able to adjust and attach to any new carers (C322 final social work statement) and for any distress to therefore be short-term.  The social work Re B-S analysis (C327-C328) sets out the potential impact upon A of ceasing to be a member of his birth family, namely potential feelings of loss and a potential negative impact upon his sense of identity.  This is something the Guardian also addressed in her report at E222.  Both the social worker and the Guardian have concluded that, sadly, the risk of harm to A growing up in the care of either of his parents or paternal family is greater than any distress he may later feel at being separated from them.  My findings below about the capability of parents’ or others to care for A to a good enough standard will also therefore be relevant to this, as are my threshold findings and those under the headings relating to risk of harm.  The impact upon A of ceasing to be a member of his birth family can also be mitigated by life-story work as well as by letterbox contact as proposed in the final care plan (D22-D23) and endorsed by the Guardian (E222).

 

Age, sex, background and any relevant characteristics are the next headings in both checklists.  I have already noted some key details in relation to this, and would also acknowledge A’s cultural heritage is mixed Albanian and White British.

 

Any harm which he has suffered or is at risk of suffering.  I have already made threshold findings and therefore identified the harm that A had suffered and was at risk of suffering at the relevant date (ie 16^th December 2020 when the application was made) for the purposes of s31.  In relation to risk of harm, the next welfare checklist headings are also inextricably linked to this, so I have considered this further below.

 

The next welfare checklist headings are the capability of parents or others to meet A’s needs, and A’s relationship with other relatives including with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

 

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

 

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

 

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

To address this aspect of welfare, it is necessary to look at the evidence about parenting capability.  Both M and F were assessed by an ISW, as I noted earlier.  The ISW’s conclusions in relation to M were “In my opinion M is unlikely to have made sufficient sustained changes to her current life-style choices, or to have manged (sic) her mental health sufficiently well within A’s timescales that would enable her to resume care of A either as a single parent or as a shared care parent with F…I do not consider that M currently has the capacity to meet the developing and presenting needs of A to a good enough standard or to safeguard him sufficiently well” (E139-E140).  Throughout the assessment the ISW did note some real positives about M’s  parenting - she was able to meet his basic needs in contact, her warmth with A in contact, her ability to prioritise A’s needs over her own when she was upset about not knowing about his immunisations, and her efforts to provide a positive home environment for A (though as the ISW noted at E111 she had been unable to visit to see this for herself, but clearly did not doubt what M was saying about this).  The concerns about M’s parenting capability are not about her ability to meet A’s basic needs or generally to be able to have a warm and loving relationship with him, though.  As noted by the ISW, as well as by the social worker and Guardian, M has not addressed her drug misuse, has not addressed her mental health issues as recommended by Dr Adshead, has not addressed her tendency to form relationships that put her and A at risk of harm and has demonstrated a chronic inability to work openly and honestly with professionals.  M accepted in her evidence to me that she has only just started to address her drug misuse, mental health and engage with the Freedom Programme as part of starting to address the concerns around domestic abuse.  She also accepted that this was likely to involve a long process and a timescale that was therefore too long for A to wait.   The evidence therefore amply supports a conclusion that M is not currently capable of protecting A from the impact of drug misuse, her mental health issues including the potential to expose A to unregulated emotional outbursts or volatility, nor to ensure that he is not yet again exposed to domestic abuse.  It also follows from this that A remains at risk of significant harm if in her care whilst this is the case.  Sadly, therefore, I must conclude that M is not capable of safely parenting A to a good enough standard.

 

In relation to F, the initial conclusion of the ISW was that he could potentially be capable of parenting A to a good enough standard (E122 & E139), but this would need to be supported by placement in a parent and child foster placement.  In early June, the ISW was asked to revisit her conclusions in light of the further hair strand test results which continued to show that F had consumed drugs (E166-E180 hair strand test results dated 3^rd June 2020).  The ISW was also asked to reconsider the issue of domestic abuse.  As she said in her addendum, and confirmed in her evidence to me: “Having re-read my report, I see I justly deserve the criticism of the report and respectfully, would say here that I can see I had not provided appropriate and proper analysis of F’s alleged violence towards M; or in respect of his hair strand test results” (E812).  She went on to note the sequence of events with regard to what was or wasn’t known at the time of the assessment, and to conclude “in my professional understanding, in many cases the most sever (sic) and abusive behaviours can occur when a couple have separated.  Therefore, it would be imperative that there was evidence that these parents were no longer in a relationship that posed any risk, before A could be safety (sic) placed with either” (E183).  She was deeply concerned about the hair strand test results for F, noting that they showed actual consumption of the drug and that the denials F made to her about this were in fact lies (E183).  She also noted that the results also showed an apparent reduction in drug use which may be evidence of efforts to abstain on F’s part, and considered whether F should therefore be further assessed in respect of his usage and parenting through admission to a specialist unit.  This was something that F had raised earlier in the proceedings, but his positive test results meant no unit was prepared to take him.  The ISW concluded that any lengthier period of assessment “would need to be considered in relation to A’s own timescales and his need for permanency; consistency of care and safety and security in relation to his own development and developmental milestones.  Sadly, in my opinion, F appears to have been dishonest in a key area of his initial assessment in respect of his drug use.  As it appears, he has likely lied and put his own interests above the best interests of his sone, and therefore his commitment to parenting A should be questioned as to whether it would be safe to leave A in his sole care in any event” (E183-E184).  She reiterated this conclusion in her oral evidence to me.

 

F’s own evidence to me was striking in his lack of acceptance of the concerns about the risks he may pose to A, I find.  Also of note was the absence of any clear plan of how he would care for A on a practical level as the cross examination by Ms de Freitas revealed.  He told me that he would be able to live in one of his uncle’s properties in Essex, but beyond this had clearly not thought about what this might mean in terms of how he would provide for A financially (since he has no access to public funds by virtue of his immigration status), nor what practical support he may have from friends and family there to assist with caring for a young baby.  I find that he is not capable of parenting A to a good enough standard due to the unaddressed risks that he would pose in terms of future drug misuse or exposure to domestic violence, and his lack of honesty with professionals means that I can have no confidence that he would comply with any protective measures put in place to secure A’s safety if placed with him and there is a real risk that, just as he has done before, he will prioritise his own needs above those of A.

 

Mr Jones questioned the social worker who completed the kinship assessment of E and G about an email that the Local Authority legal representative had sent to ICACU (the International Child Abduction and Contact Unit who act as the UK central authority in respect of requests for social work to be conducted abroad and liaison between jurisdictions in matters relating to child protection).  That email is dated 30^th June 2020 and forms part of a chain of emails between the Local Authority legal department and ICACU (C310d-C310p, with the 30^th June 2020 email at C310g).  The email said, “subject to any outstanding checks, that the assessment of E and G to care for A is likely to be successful”.  As the social worker noted, the email was not sent by the social worker or the social work team so it was not really something that she could give any useful evidence about.  In addition, I note that it was written before the assessment was completed on 11^th July 2020 and the sentence in question is heavily conditional in that it uses the word “likely” as well as saying “subject to any outstanding checks”.  Of course, as I will go on to look at in more detail, the fact that necessary checks could not be completed formed part of the basis for negative conclusion of the assessment.

 

Mr Jones submits that I should consider further exploration of E and G as potential carers for A.  He notes, as is not disputed, that the assessment report at C240-C310 notes many positives in relation to them.  He also notes that they have produced, during the final hearing, many of the documents which the assessment noted were required and not provided at the conclusion of the assessment.  Mr Jones accepts in his closing submissions that this documentation was not promptly provided, and notes the evidence of the social worker assessor and Guardian to me about the apparent adequacy of the identity documentation.  However, the issue about provision of information by E and G is much more complicated than this.  

 

The summary and recommendation of the connected persons assessment of E and G concluded: “There are many strengths in the couple's personal characteristics, their lifestyle, and their capacity to look after their nephew. Their motivation to care for A is supported by a strong belief that A should be raised within his birth family. There are also potential concerns for A if he was placed with his uncle and aunt…Unfortunately, this assessment is incomplete. There are critical gaps in the information required, and the assessment does not meet statutory requirements for Fostering or Special Guardianship. The missing information has been requested since April 2020, but unfortunately it has not been forthcoming. In addition, despite verbal reassurances from the Applicants that they understand the timetable and the urgency of this work, the couple have disengaged intermittently and missed several critical assessment appointments” (C240-C241).  The assessor noted in her report at C303 what information was outstanding when she completed the assessment.  The documents produced during the course of this hearing appeared to be identity documents (I say appeared to be because, in the case of what may well have been French passports only photographs of one page was produced and not photographs of the front and other pages of the document which, as the assessor pointed out, she would normally expect to see).  The photograph of something entitled Titre de Sejour for E was also produced without any translation and without any context as to what this may mean in immigration or citizenship terms, apart from what E told me about this and his expectation that his passport, which expires on 17^th October 2020, will be renewed then for another 12 months.  In her statement dated 24^th September 2020 (C382-C385) and in evidence to me, the author of the connected persons’ assessment detailed that it wasn’t simply a concern about missing information from E and G, but more what it says about the couple’s commitment to being carers for A.

 

Several times in her assessment and in evidence to me, the assessor noted that she felt the couple were actually ambivalent about caring for A and were perhaps offering to do so more out of a sense of family loyalty than anything else.  At the end of an appointment with the assessor on 14^th May 2020, G told her that they were unsure about caring for A and that it may be better for him to be cared for by his paternal grandparents, citing that E and G wanted to have more children, they were worried about the financial implications of caring for A as well as the practical implications if she returned to work as planned leaving E to care for two young children on his own, and because of the immigration situation they would be unable to send A to stay with his grandparents in Albania (C290).  On 15^th May 2020 the assessor met with the couple and initially E said he agreed with G’s comments the day before, but the couple then changed their view after the assessor explained about the potential for A to be adopted outside of the family if there were no family placement available for him (C291).  By 8^th and 11^th June 2020 when the assessor met the couple again, she noted that she felt there had been “a shift in the tone of the assessment which was heading towards a positive conclusion” (C291).  That may well have fed into the email of 30^th June 2020 which I noted earlier.  However, despite this, the couple then went on to continue to miss or be significantly late to scheduled appointments, which had been arranged to suit their availability.  A complete schedule of the remote appointments and contacts for the assessment is at C386-396 and shows some 34 appointments or email or other contacts from the assessor to E and G.  Of these, 15 were appointments with E and G with the assessor.  E and G were late attending five of these, and for nine of the 15 appointments either the couple did not attend at all or only one attended or both were there but the other was only in the background for a very limited period.  In addition, they missed two scheduled contact sessions with A and it is not in dispute that, as a result, they have only seen A when he has had remote contact with F whilst F was staying with E and G in August. The assessor told me that she was given no real explanation for the missed and late appointments beyond what was noted in the assessment and the schedule, namely that a couple of times their daughter was sick or they had prioritised work.  

 

E was asked about this by Mr Forbes and Ms de Freitas in cross examination and again gave very little explanation for the missed appointments etc and late or missing documentation beyond the fact that he and his wife both had very busy lives working and looking after their daughter.  Appointments and communications were dealt with via an interpreter and with translation, so this was not a question of lack of comprehension of instructions or communication, I find.  Mr Jones did submit that assessment should be undertaken by a French social worker because it could then be undertaken in French, a language that E and G certainly speak well because France is now where they live and work.  However, as I noted when he asked the assessor about this, French is not their first language, Albanian is and the translation provided by the Local Authority in its dealings with them was in Albanian and therefore their first and presumably most easily understood language.  E in any event said absolutely nothing in his statement or during evidence to me about difficulties with understanding what was communicated to him by the Local Authority.  What was striking about his evidence was a real lack of concern about what this meant for the assessment.  I did not get a sense from him at all that he understood and regretted that he had perhaps prioritised other things over the assessment and that this would now change in the future so as to be genuinely committed to any further assessment.

 

Mr Jones is also critical of the assessment process limitations given the Covid-19 restrictions.  However, I do not find that this is a valid criticism.  E and G were clearly able to participate in remote sessions on a practical level as the successfully attended and completed appointments show.  E himself raised no criticism of this in his evidence, or about the level of contact with the Local Authority, in fact commenting in answer to questions from Ms de Freitas that he felt he had had rather too much contact from the Local Authority and would have preferred much less, for example one or two emails per month.  The sheer number of appointments and attempts to make contact detailed in the schedule at C386-C396 is exceptional, in my experience of such assessments both pre and post Covid, and I am very clear that the negative conclusions reached in the assessment are not as a result of the assessment process denying E and G a proper opportunity to participate.

 

G, despite being directed to file a statement, had not done so because she did not attend the appointment with F’s solicitor and also, despite arrangements being made for her to give evidence remotely and potentially be allowed to give oral evidence in chief despite the absence of a statement, was present for only the first few minutes of E giving evidence.  She then left to take their daughter for a medical appointment, before returning briefly only to leave again for work.  This was precisely the sort of behaviour that had given rise to the assessor’s concerns about engagement and commitment, I am afraid.  It is also perplexing behaviour because (as is noted at C362 in the assessment) E had at times expressed frustration at what he perceived as delays and the lengthy process of care proceedings.

 

I noted earlier that the assessor’s concerns and negative conclusion were not solely limited to the absence of documentation and lack of engagement with the process by E and G, however.  Other concerns noted were a lack of acceptance of the risks posed to A by F, withholding significant information about the paternal aunt joining them as a family and a lack of willingness to consider any additional needs that A may have.  In relation to the lack of acceptance of risks posed by F, Mr Jones cross-examined and made submissions on the basis that E and G had only had access to limited documentation and information from these proceedings.  However, this was not something that E himself raised in either his written or oral evidence, nor was it something that was raised with the assessor during the assessment.  E in fact said that he had had a lot of information and was clearly fully aware of the drug test results even though he had not been sent those because he referred to them more than once in his evidence. The assessor also told me (and this is noted in the assessment itself C294) over the course of the assessment the couple have not only had access to the translated documents provided but information shared in the assessment.  The translated documents were also disclosed to E and G following a consent order, ie one to which all parties including F agreed, dated 19^th May 2020.  That same order (B159) made provision for not just disclosure of the translated documents specified at 1(a)-(h) but allowed for “any further documents as agreed by the parties” so there was scope for F to ask for additional translated documents to be sent to E and G and for these to be provided quickly if everyone agreed.  No such request was made, and, during this hearing, there does not appear to be anything that E was saying he needed to have seen nor any evidence about this from F.  Nor has Mr Jones identified in his submissions what should have been sent and why it would have been relevant to the issue of E and G’s understanding and acceptance of the risks posed by F.

 

In hearing evidence from E, it was also striking that whilst he described M as an “irresponsible mother”, his language about F was much less critical as Ms de Freitas noted in her closing submissions.  E described F as simply having made “mistakes”, the same term that F used in his oral evidence to me, I note.  I agree with the assessor’s conclusions that there is a real concern about the lack of insight into the risks posed by F to A on the part of E (of course G gave me no opportunity to assess her oral evidence about this).  In turn, it seems more likely than not that if A were to be placed with E and G they would simply not be able to adequately protect A from the risk of harm posed by F because they do not understand or accept that risk which is wider than simply use of drugs given the issues around domestic abuse and lack of honesty with professionals and others.  It seems that F has also not been honest with his brother about other things as well as his use of drugs, as is noted in the assessment at C295 in relation to the drink driving conviction.  In addition, when this was discussed with the assessor, she noted that E continued to defend his brother and “In addition, E has said on several occasions that he does not feel that F would act in any way that would harm his son.  Even in the latter stage of this assessment E said to me ‘Even now, I know that he loves his baby and he would take care of him as I am taking care of mine” (C295 again).  E and G’s ability to protect A from risk of future harm is of critical importance given my findings earlier about the harm he has already suffered and would be at risk of in the future.  That risk in relation to F is compounded by the fact that there is absolutely no explanation given or insight shown in relation to his drug misuse or domestic abuse and hence it is not possible to say with any certainty that those issues will not arise again.  F’s dishonesty with not just professionals but his own family also does not bode well for their protective capacity if they struggle to accept that he poses a risk in the first place, I find.  This finding further strengthens my conclusion that it would not be in A’s welfare interests for there to be further assessment of E and G as potential carers, no matter how ostensibly willing they are to undertake this and despite their protestations that they do want to care for A.  I say their protestations because, of course, as the assessor noted there is a concern about the discrepancy between what they have said about their desire to care for A and their actions.

 

Further evidence about this discrepancy which leads to a conclusion that they are perhaps ambivalent about wanting to care for A is in relation to their failure to disclose that they planned for A’s juvenile paternal aunt to join their family in France in July of this year.  This only came to light when the assessor contacted the only personal referee provided by E and G, that personal referee having disclosed the information (C285).  The assessor was of the clear view that this information had been withheld from her by the couple (C306 and in oral evidence to me), a conclusion that is one I have also reached.  E’s evidence to me about the practicalities of their living arrangements was also rather vague, suggesting that E and G would share their bedroom with their daughter and A and his paternal aunt would share the other bedroom (it seems that they have 2 bedrooms but in evidence he referred to 3 rooms, though I took that to include their living room when read in conjunction with the assessment report).  In addition, the missing information from them includes details about their financial situation (C302 and C303) so it is difficult to work out how they would be able to financially support A in addition to their own child and E’s sister.

 

The assessment of E and G is a very thorough and balanced assessment despite the absence of key information from them, I find.  It clearly notes positives about them (see for example C241).  However, it is also clear that (for reasons that they have still not adequately explained to anyone, let alone me) they have failed to take up the opportunity of having remote contact with A so have no real relationship with him and no apparent desire to do anything about starting to build that relationship as they have not sought any other contact as the social worker told me.  This further underlines my concerns about their apparent ambivalence in wanting to care for A, I find.

 

I am asked by Mr Jones for F to consider adjourning these proceedings further to allow further assessment of E and G, but against the background of missed appointments, partial engagement with appointments and late or partial provision of documentation, it is very hard to be confident that the same would not happen again and it seems more likely than not to me that any further assessment would again conclude negatively.  The findings I have made above also note the concerns about E and G’s ability to safeguard A from risks posed by F considering the absence of their insight to and acceptance of those risks.  In addition, the absence of key information from E and G has also meant that the statutory requirements for a Special Guardianship Report have not been met, making any assessment in relation to this a longer process even if I had been persuaded that E and G would comply with this process.  I am not so persuaded as I have said, but also I am not persuaded that A can wait any longer for further assessment of E and G to be attempted when there are valid concerns that such assessment would be likely to result in only partial engagement at best and in any event ultimately a negative conclusion as a result.

 

The above findings all therefore mean the following in relation to placement options for A:

 

Placement with M, F, or E and G would have the advantage for A that he would be brought up within his family and this would help him preserve his sense of self and identity, as well as avoid him potentially feeling rejected in later life.  The disadvantages of any one of these placements are that A would continue to be at risk of harm in the future and that harm may be physical, emotional or psychological given the risks that his parents’ drug misuse and inability to protect him from domestic abuse would pose.  In addition, as I have already noted, placement with E and G would require a further delay in a case that has already taken more than the statutory 26 weeks and such assessment is unlikely to conclude positively.  An adoptive placement will bring some disruption to A because of the need to move from his current placement (though the same would apply if he were to return to the care of either parent or E and G as I have also noted earlier in this judgment).  It would also potentially mean that he will have questions about his identity and potentially feelings of being rejected by his birth family when he is a bit older as both the social worker and Guardian acknowledge.  Balanced against this are the positives of a secure, stable and safe placement and the potential for his identity needs and any concerns about feelings of rejection to be dealt with by life-story work and post-adoption support. On balance, the risks to A of being returned to the care of either parent or placed with E and G outweigh the potential negatives of adoption for him.  The only realistic option that therefore remains to meet A’s welfare needs in light of my findings is adoption and, sadly, I am forced to conclude that there are no other realistic options remaining apart from adoption for him and that a care order with a plan of adoption is necessary and proportionate in this case.  Accordingly, it is also my finding that A’s welfare requires that I dispense with his parents’ consent to the making of a placement order for A.

 

Conclusions

 

I know that M and F clearly love A, and this has also been acknowledged by the social worker, the ISW and Guardian.  However, A cannot be safely returned to the care of either of M or F as I have explained above, and there are no other alternative carers who could safely care for him either.  M has told me that she has started to address her issues and I really hope that this is the case, not least because of what this could mean in terms of her relationship with her other children.  F has yet to even begin to acknowledge his issues, but I hope that he will reflect on my findings and maybe can begin the process of accepting that he has problems that he needs to address.  I also note that, in my view, E and G have been in a difficult position where it was clear that they wanted to support F as a member of their family, but equally have been torn by the difficulties of juggling this with their own lives and responsibilities.

 

I will grant a care order to the Local Authority, endorse the final care plan of adoption as being in A’s best interests and will dispense with the consent of the parents to the making of a placement order, and also grant a placement order to the Local Authority.

 

 

 

 

APPENDIX A

SCHEDULE OF THRESHOLD FINDINGS

 

The Local Authority asserts that at the time protective measures were taken, that being on the 17^th December 2019, A was suffering and/or was likely to suffer significant harm. This harm being attributable to the care likely to be given to him, that care not being what it would be reasonable to expect a parent to give him.

 

The Local Authority asserts that the Threshold Criteria for the making of final Orders is met on the following factors: -

 

1.                                       M’s Mental Health

 

              i.                            M has been diagnosed with an emotionally unstable personality disorder (E2) and has been unable to address her mental health or engage with professionals to improve her emotional availability to A. Whilst M’s mental health remains poor, she will be unable to provide consistent and stable parenting to A and he would likely remain at risk of emotional harm in her care (E99).  

 

            ii.                            M has been unable to recognise the impact that her emotionally charged responses to situations have upon A(C90). For example, M exposed A to aggressive outbursts when in hospital following A’s birth (and has since exposed him to her volatile relationship with F).  A would be emotionally damaged by witnessing this.

2.                                       Drug Addictions:

 

         i.                                M has a history of poor mental health and self-harm (E2) together with an extensive history of drug use which began in her teenage years (E81).  M exposed A to drugs in utero and prevented him from receiving appropriate medical care to assess the same following his birth by refusing and interfering with urine for samples (E4; E9).  A has suffered physical harm by not receiving appropriate medical care

 

 

       ii.                                M continued to use cocaine post birth as established via hair strand test results on 02.02.2020 (E28-47).  A has been exposed to physical harm through M breastfeeding him with milk containing cocaine. A was noted to be displaying symptoms of drugs withdrawal when removed from her care (C97).  A is at risk of further physical harm as it is not known how the exposure to drugs will affect his health long-term.  

 

     iii.                                M has failed to sustain her engagement with drugs services and has been inconsistent in her engagement with Turning Point and has not committed towards abstinence (C172-173; C177-178; C240-242).  M has not been able to prioritise A’s needs over and above her own need to consume drugs and has therefore continued to expose A to physical and emotional harm through her drug use.  

 

     iv.                                F is a medium user of cocaine and cannabis, as evidenced through hair strand tests received on 04.02.2020 (E27a-t); 21.04.2020 (E150-166) and 03.06.2020 (E167-171).   F has not been honest with professionals around his drug use and lifestyle and disputes that he has consumed cocaine (C186), despite the hair strands being conducted by two separate companies and being confirmed as accurate and not contaminated (E68-72; E167-171; E192).  F is likely to expose A to physical and emotional harm through exposure to drug use.     

 

       v.                                F states that he was unaware of M’s drug use, despite this use being extensive and despite him being responsible for supervising her care of A (C185).  F has failed to ensure that A was protected from the risk of harm from drug exposure and this has led to him suffering physical harm during withdrawal.

 

3.                                       Domestic Violence

 

         i.                                M has a history of volatile relationships and has alleged domestic violence in her previous relationships (F42; C10-11).  M has not undertaken any work to recognise a volatile relationship and she would likely place herself and A at risk of both physical and emotional harm by entering similar relationships. 

 

       ii.                                M has reported physical abuse perpetrated by F (C189a-189d; PD67).  M was unable to protect A from F’s volatility and thus placed A at physical risk of harm by being caught in the cross-fire of their domestic incidents.   

M has alleged the following specific incidents:

1.                  Early 2019, F kicks M in stomach causing her to bleed whilst pregnant (C189b);

2.                  29.12.19, F slams M’s head into the bedframe in her bedroom using his hands, causing her a split to the head (C189b). 

3.                  11.01.2020, F punched M, causing a black eye (C189b);

4.                  22.01.2020, F punched M, causing a black eye (C189b);

5.                  23.01.2020, F pulled a lump of M’s hair out (C189b);

6.                  07.02.2020, F grabbed M’s hair in a fist full from behind on the stairs and pulled her head back, causing hair to be pulled out and leaving a lump (C189b);

7.                  07.02.2020, F punched M several times with a closed fist to her left eye and nose (C189b);

8.                  07.02.2020, F grabbed M around the next in a head lock and used his forearm against her throat (C189c). 

9.                  M alleges that F tried to forcibly remove A from his baby carrier (C189c)

 

4.                                       Lack of Engagement and Honesty with Professionals

 

              i.                            M was dishonest with professionals around her drug use prior to and following the birth of A (C45) which placed him at risk of physical harm from drug withdrawal and lack of medical intervention. 

 

            ii.                            M has not worked openly and honestly with professionals seeking to support her in her children’s care both past and present and has thus placed A at risk of emotional and physical harm (E99)

 

 

          iii.                            F has not been honest in respect to his drug use and has continually lied about his drug consumption (E189) which has been evidenced by three hair strand tests.  F’s failure to address his drug use placed A at direct risk of physical and emotional harm as a result of drug exposure. 

          iv.                            F has not been honest in respect of his immigration application (C171e) which has been approved on the basis of his family life with his partner and child (E313).

 

            v.                            To date, F has not notified the Home Office that his relationship with M had ended in February 2020 and that he has not had the care of A since that time.  This is despite there being a requirement for him to do so under the terms of his visa (ED4).  F has prioritised his own lifestyle needs and wish to remain in the UK over the needs and welfare of A.  

 

28^th September 2020

 

21^st October 2020