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England and Wales Family Court Decisions (other Judges)
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X Borough Council v Mum & Ors [2024] EWFC 442 (B) (27 November 2024)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/442.html
Cite as:
[2024] EWFC 442 (B)
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WARNING: This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
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Neutral Citation Number: [2024] EWFC 442 (B) |
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Ref. LU23C50119 |
IN THE FAMILY COURT AT MILTON KEYNES
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351 Silbury Boulevard Milton Keynes
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27th November 2024 |
B e f o r e :
HIS HONOUR JUDGE PERUSKO
____________________
IN THE MATTER OF:
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X BOROUGH COUNCIL
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(Applicant)
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- v -
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(1) Mum (2) Dad (3) THE CHILD (Z) (by the Children's Guardian)
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(Respondents)
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____________________
Transcribed from the official recording by eScribers Ltd
Ludgate House, 107-111 Fleet Street, London EC4A 2AB
Tel: 0330 100 5223 | Email: uk.transcripts@escribers.net | uk.escribers.net
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MR G FROW appeared on behalf of the Applicant
MS Y PEMBERTON, instructed by HCB Solicitors, appeared on behalf of the First Respondent
MR M STOTT, instructed by Family Law Group, appeared on behalf of the Second Respondent
MR G LAFAZANIDES, instructed by Freemans Solicitors, appeared on behalf of the Third Respondent Child (by the Children's Guardian)
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
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This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
STATUTORY ANONYMITY APPLIES
HIS HONOUR JUDGE PERUSKO:
- I am going to tell you now Mum and Dad what my decision is and what I am going to do. I am going to explain my decision in a way which I hope you will understand. Having done that I am very happy after your barristers have spoken to you to explain in more detailed legal language, if it is needed, my decision and deal in particular with the legal points I have considered. By proceeding it in this way I am not intending to be lazy, but I want to explain to you in clear language my decision.
- Mum, Dad, I have said to you many times, and I will say it again because I mean it, you are good, decent people who love your little girl to the bottom of your hearts, and you always will. I have got to know you pretty well. It has been a privilege to meet you and support you. I have rooted for you, I hope that translates properly to (your language), just like the FDAC team have, just like the social worker and Ms Oughri, the guardian, has. That is our job; to encourage, support and root for you. To encourage you to make the changes that I know you wanted to make and continue to want to make. There is no doubt at all in my mind that you have tried very very hard to make the changes that you needed to make so your little girl might come home and live with you.
- I am not just saying those things, those nice things, about you to make you feel better. I mean them. I am glad, Dad, that for the first time today you are looking at me directly. You should hold your head up high because you, both of you, have done some fantastic things and made real changes. You are not failures. You are decent human beings who deserve respect and support for the things that you have achieved and want to achieve.
- But I cannot send Z back home to live with you. I wish I could, but I would not be doing my job properly if I did because the risks to Z of her suffering harm are just far too great. It is not your fault that you find yourselves in the position that you do. It is not your fault that you present such a high risk to Z. This is not about fault. This is about getting the right decision for Z. It's about giving her the opportunity to develop and thrive in a home which does not have risk. It is about being fair to her.
- Neither is this just about alcohol. It is far more complex than that. I spent last night and very early this morning reading again and reminding myself about your lives, your life experiences. I am not going to talk about that now because I know it would be painful for you. I did that reading to remind myself of the journey that you have both had to undertake and where you are today. That has been an incredibly difficult journey, especially for you Mum, especially for you.
- Your life experiences have made you the people that you are; good people but people who have real struggles with life. You cope with those struggles at the moment in ways which are harmful and which are risky for a child who may be in your care. Alcohol is one of the ways which you cope. Perhaps it is the most harmful of all. When I look at what your test results show it really worries me. I remember seeing your first PEth results, and we have spoken about this many times before, have we not, in non-lawyer reviews. They are the highest test results we have ever seen in FDAC. That made us really worry right from the start about your physical health. It is I am sure the reason why Beverley (the FDAC manager who gave evidence today - I am going to call her Beverley as you know her by that name) said this morning in the witness box that she was worried about Dad's health. The PEth result score when we started FDAC was 974, the highest we have ever seen. It is now 816 which is still extremely high. We worry about you, Dad. This is such a high level of alcohol use that it could easily kill you. We worry about both of you of course. You need to prioritise your health. You deserve to be well and I know you want to be well.
- The alcohol consumption stops us moving forward. You will remember right at the start of FDAC that I said to both of you we are here to help but for FDAC to be effective I really must have two things from you. Those things are not negotiable, they must happen. The first thing that must happen is abstinence from alcohol, not immediately, in fact it would be incredibly dangerous for people drinking to the extent that you were to just stop. It could be fatal to do that. But I needed to have at some stage during the 'trial for change'. You will remember that when you came into FDAC I set out a timetable so that decisions could be made for Z within a time frame of 6 months, and the first 5 months was the 'trial for change' where we would work with and encourage you to engage with your intervention plan so that you could be supported to make the changes you needed to make. That was what you signed up to. That was what we were offering. The reason for that, as you know, is until we have abstinence we do not see the real you. We cannot work with the real you which enables us to dig much deeper into the reasons why you live your lives as you do to help you make the fundamental changes you need to make.
- The second thing that I said we must have from you, throughout the trial for change, is honesty. We did see some honesty from you, although of course you did not tell us about your relapse to alcohol. We discovered that from the testing process. Z is not returning to you because you failed to be open about your relapse. But the frustration about your lack of honesty, about the relapse, is that we lost crucial time to work with you in the trial for change to address the reasons for the relapse and help you develop more robust strategies. We lost time in working with you to dig deep and make the changes that were needed in your lifestyles.
- We also spent a lot of time trying to sort your accommodation out. In fact the accommodation issue is a good example of how tough your struggles have been. You have impressed me so much as to how you coped living in a hotel room in ( ) for months before being forced to move to that awful hotel room in ( ), moving away from the recovery services in ( ). Having to travel for family time. You will remember the letters that I wrote in support of your housing application. I remember you both talking to me about how difficult it was living in the ( ) accommodation, surrounded by people who were using drugs and drinking. That is why for long periods I was really impressed by what you were doing.
- When I stand back, as I have to, and decide what the right decision is for Z I must take all of this into account. I need to put her welfare, her interests, throughout her life first. That is my top priority. Of course I would want her to be with you, anyone would want her to be with you. Is there a way of that being achieved safely and within a period of time where that would be right for her? Sadly, the answer to that is no because she needs, she deserves, what we sometimes call a forever home, a permanent home. Somewhere where she knows she is going to stay without the risks presented by carers not being able to look after her properly. She needs, and deserves, to be kept safe. I do not think you can keep her safe. That is not because you do not want to keep her safe, not because you do not love her, not because you have not tried hard enough. It's because I think the challenges of life are so huge for you. That is why you could not achieve abstinence and engage in the sort of work that we needed you to at a time when you had all this support around you. You are just not ready to make the changes that you need to make to make it safe for Z to be with you
- I have highlighted a couple of things which Beverley said this morning when she was asked why the risks of you using alcohol cannot be properly managed. She said, "The difficulties with using alcohol, especially to this level, is that it impacts all areas of parenting, and we have discussed this with both parents. It impacts their basic care of themselves and a child in their care. I have given an example of the worry about the level of Dad's drinking at the moment. He would not be available for a child. The risks associated with that are huge. It risks Z's physical and emotional safety. The issue is that Z is a young baby, dependent on her main carer and carers. She needs consistent emotional availability, and she needs protection. The level of alcohol consumption here indicates that these issues will not be resolved quickly". I agree with those observations. I think they are fair, and I think they are balanced.
- Adoption sometimes causes problems for children as they grow older because it affects their sense of identity, a lost identity. Z has a wonderful identity. She is (nationality) with (country) parents and a bit of what Mum describes as Gypsy in her too. Wonderful. That is all part of her. All of us, every single human being on the planet, are unique individuals with a unique and individual identity. It is so crucial that anyone caring for any child understands that, especially a person caring for a child who is not their birth child.
- Adoption legally cuts the legal ties with birth parents and that is problematic for children. It is a feature of adoption and impacts a person's sense of identity. Adoption also involves a child losing relationships which are important to them with birth families. It is not just parents it is other people within the near and extended family, the people living in (country) who she will not visit, other (country) family members in this country of which there are lots on Dad's side. So I have thought about all of those things when I have decided that I cannot do what you want me to do.
- The only way forward that I see which is consistent with the need to prioritise Z's welfare for the rest of her life is to ensure that she is in a place where she is going to be protected from harm, where she is going to be allowed to thrive and develop. I am reassured, particularly if the current carers are matched and Z and remains with them in an adoptive placement, the carers will ensure that these important relationships for Z, particularly with the two of you, are maintained because the plan is for you to see them. I am delighted that this is the plan, not just for you but particularly for Z. I am so pleased for her that the plan is that she will see you.
- I suspect that this plan / arrangement will perhaps motivate you to continue your journey to abstinence and not just abstinence but fix the things that are wrong in your lives. If that is a motivation then I understand that but I would remind you what we have talked about many times and what Beverley talked about again this morning. For you to succeed in your journey the motivation has to come from inside you. If it comes from anywhere else it will not work. You are not in control of what happens outside your lives. You are in control of what happens inside you. Think about that please. Think also about what FDAC often focused on which is your co-dependency, your reliance on each other. It is the same point made in a slightly different way. If you rely on each other it will not work. You are a couple. You love each other. I hope that will not change but that does not mean that you should live out of each other's pockets and rely on each other to achieve abstinence or the other changes that you need to make.
- So I will make a care order having determined that there is no option (given the two realistic options are adoption and Z coming to you) other than for me to approve a care plan for adoption. I will dispense with your consent to adoption because it is in Z's welfare interests so to do and I make a placement order.
- As I said earlier, Ms Pemberton, Mr Stott, you will want to speak to your clients now and of course I am very happy to amplify my decision in any way that you would like after you have done so that discussion. Just let my clerk know.
- Remember what I said, you are good people, and you have not let Z down. Please do not think you have because you have not. People who have worked with you care about you. And we like you. You deserve the better future that you want. Please do not give up. We care about you because you are worth it, both of you. Please take care of yourselves and be kind to yourselves.
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Footnote; - the hearing resumed after an adjournment to allow for counsel to speak to the parents. Both counsel said that no further clarification was sought and thanked the court for the way the hearing had been dealt with. I asked the parent's counsel to email the court with their observations about that issue. Those emails are set out below and included with their permission. The final hearing was concluded within 3 hours including evidence, submissions and this judgment.
From: Yolanda Pemberton
Sent:
To: Perusko, HHJ Patrick
Subject: Re:
Dear Judge,
I am more than happy for my observations to be shared
I would describe myself as an FDAC convert, I have practiced long enough to remember reading reports and recommendations from John Castleton on addiction, and recovery. I remember the Trimega scandal.
I also remember the real sense of unease as a practitioner when we no longer had reports for clients who were in the grips of addiction, and it was simply based on social work assessment and HST results.
I say that I am an FDAC convert I have had experience of the projects in Coventry, Birmingham and now Milton Keynes. It is in my view an invaluable resource, there is no other way for a parent who is in the grips of addiction to have access to the multidisciplinary services needed to give them the best chance of releasing the grip of the addiction. The statutory time limit of 26 weeks is not long enough for a parent to engage in treatment, have the bumps in the road that we know will come and be able to demonstrate the level of stability needed for rehabilitation to be considered. To have an alternative route is in my view vital for parents and their children. We know that they are unlikely to stop having children, and the community services they would need, even if they do exist do not in the timescales they will need. On a simple cost analysis of proceedings, if we can help these parents to remove themselves from the grip of addiction and care for their children surely this is the best outcome.
I think shows the benefit of Judges placing parents and of course any children at the centre of proceedings. I was struck, as I said in my observations by your judgment. I genuinely wish that more judges would give judgments that are entirely accessible to a parent in the moment that they can follow along with, and I hope even when the outcome is not what they want, they feel seen, heard respected and valued in the process.
That process of a parent being heard and feeling respected is vital. The professionals in the final hearing were all willing these parents to succeed, and even when the outcome was not what they wished still showed a degree of humanity and concern for their ongoing wellbeing for the benefit of their child. The outcome was devastating for the parents, but their ability to have a hearing where their views were adjudicated on, that they could hear directly from the professionals and the court is vital.
I know that a final hearing in some quarters is rare, but for these parents and indeed the child(ren) involved at some point in later life if they choose to look at their file to know that their parents did not give up, did all that they could to try and care for them is invaluable.
Best wishes
Yolanda Pemberton
Barrister
St Philips Chambers
From: Matthew Stott
Sent:
To: Perusko, HHJ Patrick
Subject: Re:
Dear Judge,
I really can't add much. The FDAC process gave the best chance for these parents to be able to look after their child. Because of the relationship with the Judge, balanced against wanting to fight for their child, the final hearing was very different to standard care proceedings. It was an inclusive process and very effective.
This was a care and placement order application. Both were made. Normally there would be at 3 days of court time to determine this along with a complex legal judgment which the parents would not read or understand. The Re BS balancing process in a case would have been wholly artificial and disingenuous. Everybody in the room, save for the parents, knew what the outcome was going to be. If this was a standard contested hearing, the LAA costs for representation for each party would have been circa 2.5K. There were 4 parties plus judicial time.
In an FDAC case such as this, the parents simply need to know why it is or is not possible to have a child returned to their care. The communication of the decision needs to be done in a sensitive, humane and caring way by a judge who knows the case and the parents and whom the parents trust to be honest with them to make the right decision for their child.
A final hearing in FDAC is not about minor point scoring on social work opinion but simply having an opportunity to test and explore the recommendations made to the Court by professionals so the Judge can decide. The time needed for this is much less in an FDAC case as the parents understand that the Judge knows them, understands their case, has been on the journey with them and their voices have been listened to throughout the process. This is invaluable.
Whilst the FDAC process is intensive and intrusive for the parents, the Judge and the FDAC team, the inclusive and intensive process means that where a final hearing is required, there is no need to put on a performance on behalf of the parents and neither does the Judge.
In this particular case, there was cross-examination of 3 witnesses, submissions and a parent focussed judgment focussing on the positives of the parents and simple reasons why the child could not accede to the parents wish to allow their child to live with them.
Interestingly, there was also agreement outside of Court for face to face contact 3 times per year. I cannot recall a case where there was such a collaborative approach by all parties. I also cannot recall a contested final care and placement application hearing concluding with such efficient use of Court time (1/2 a day), including a balanced and kind judgment and everyone having felt listened to and most importantly actually understanding the judicial decision which was sound.
My best wishes to you over the Christmas break.
Ever,
Matthew Stott
Barrister
Harcourt Chambers