England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/12/2013

Mrs Justice Pauffley:

Introduction

1. This has been the final hearing of the local authority's application for care and placement orders in relation to an infant born on 1^st October 2013. She is 10 weeks old.
2. Neither the mother nor the father, both of whom are represented by experienced Solicitors and Counsel, came to court yesterday for the first of what had been intended to be a three day hearing. It is, I need hardly say, extremely unusual for the parents of any child to absent themselves from court proceedings at which orders leading to adoption will be sought.
3. Their positions were explained by Counsel both of whom had spoken over the telephone with their respective clients during the course of yesterday morning. The parents know of the plan that judgment will be given at 2pm this afternoon, 12^th December. There was some indication that the mother might attend for judgment. The father knew that unless he attended for a meeting with his lawyers and the local authority social workers today then there would be no opportunity for a final, 'farewell' contact visit next week. As it turns out, both parents are here to listen to the judgment; and they have already participated in a meeting with social services in relation to contact next week.
4. It is rare for a court to convene a final hearing in relation to a 10 week old infant. Ordinarily, more time would elapse before it was appropriate to confront the making of final decisions. In this instance, I am convinced that it is right to proceed and even although the orders sought represent the most serious kind of state intervention, namely permanent separation between the child and her natural family.

Essential background

5. The child who is the subject of this application is LRP. Her mother is CH; her father is RP. They are also the parents of two older children, both boys, TLP and ARP. In February this year, both parents participated fully in a three week fact finding and, so far as their two sons were concerned, 'welfare' hearing. Judgment was given on 1^st March – [2013] EWHC 2133.

Earlier findings

6. Various findings were made in relation to both RP and CH, all of them significant insofar as LRP is concerned. In brief, they substantiate the following – that RP poses a risk of significant physical harm to any child or adult with whom he resides; that CH is unable to identify and thereafter respond appropriately to the risk of harm; that she does not accept RP poses a risk of harm to her, children or other adults; that RP holds unhealthy and or unwholesome attitudes to sexual relationships; that as at 1^st March, RP, CH, RP's mother and step father (against whom serious sexual findings were made) presented as a cohesive, enmeshed and well defended unit content to share their lives irrespective of the risk presented to any child; that CH was unable to make any kind of break between herself, RP and his family notwithstanding that first TLP and then ARP had been removed from her as the result of the risks associated with her continued connections.
7. There was a section of my March judgment (paragraphs 117 to 123) devoted to the question of whether CH was capable of separating herself from the influences of RP and his mother. CH and RP sought to persuade me, unsuccessfully as it turned out, that their relationship at the time of the February hearing was Platonic. LRP's birth on 1^st October demonstrates just what a blatant lie that was. There is no suggestion that anyone other than RP is LRP's father. The mother was about two months pregnant with LRP at the time of the March judgment.

The older children – welfare decisions

8. My decisions about TLP and ARP, then 19 months and 6 months old respectively, were that on any consideration of their welfare needs nothing short of adoption would be adequate. They had to be protected from harm and there was no basis for believing that either then or within an appropriate timeframe CH would be able to so safeguard them.

LRP – recent history

9. LRP was born seven months after the March judgment. The local authority began care proceedings at a time when LRP and the mother were still in hospital. On 4^th October, I was asked to sanction their separation under an interim care order so that LRP might be looked after within a foster home pending final decisions. I refused to approve of the separation plan mindful that the risks to the baby's safety could not have been described as immediate or pressing, given that the mother was indicating a strong wish to continue looking after her new born baby and would do "whatever it took" in terms of separating from RP.
10. Accordingly, and responsive to my indications, the local authority arranged for the mother and LRP to be placed together in a specialist mother and baby foster home in West Sussex. They moved there on 10^th October, after just a very few days apart because the hospital had been unable to continue to accommodate them.
11. On 14^th October there was a brief hearing at which the mother was present and represented, as now, by Mr Squire. It's is no exaggeration to say that, seemingly, she was very content. She was beaming. The initial signs were encouraging as to her being able to look after LRP in the absence of RP.
12. On 21^st October, so only a week later, the mother left the foster home and returned to live with RP in South London. In all, the mother and baby placement had lasted only 11 days.
13. The mother contacted the foster mother to find out how LRP was on 22^nd October. The next and as it turned out the last time there was any contact between mother and baby was on 29^th October at or after a Review Child Protection conference. The father attended that conference as well and was due to have contact. He became extremely aggressive and threatening towards professionals, swearing and shouting, whilst holding LRP.
14. On 31^st October the parents went to the East Midlands to spend 6 days or so visiting friends returning on 6^th November. Contact was arranged for the mother thereafter and at frequent intervals, four times a week. She has not attended a single session, saying she has been suffering from ill health.
15. On 6^th November there was a brief hearing at which I agreed that before RP could be reintroduced to LRP at contact, there would have to be a meeting with social workers, attended by his lawyers, so as to ensure there was no repetition of what happened on 29^th October. The other development at that early November hearing, consequent upon the mother's departure from the foster home was to enlarge the scope of this fixture to deal with final orders in relation to LRP. Three days were set aside.

'Threshold criteria'

16. On their own, the findings made at the end of the February hearing as against each parent provide the foundation so as to satisfy the s.31 'threshold criteria' in relation to LRP. Mr Perkins' document contains a little more, derived from the recent history. There is no suggestion, nor could there be, that the s.31 criteria are anything other than emphatically established in relation to LRP and I so find.

Independent social work assessment

17. In the interval between then and now, the most important assessment work was carried out by Amanda Gillard, independent social worker. She is well known to the parents because of her previous and extensive involvement in the proceedings relating to TLP and ARP.
18. Ms Gillard has seen the mother alone on several occasions and also together with the father. She has had good opportunities to discuss the issues with both parents, to consider their responses to the anxieties about their apparent inability to respond positively to the need for intervention as well as their reaction to the various findings made at the February hearing.
19. Ms Gillard does not consider there are any services or support systems which could be put in place so as to effectively ensure LRP's safety and well being were she to be back at home with her mother. The mother and father have candidly stated that they wish to be together as a couple. They, particularly the mother, have no wish to separate and even although they recognise the almost inevitable consequences of that decision for their daughter.
20. Ms Gillard is concerned that even although the parents have had ample opportunity – since about this time last year – to demonstrate a real commitment to achieving change, they have failed to do so. The timescales, forecasts Ms Gillard, are indeterminate; and she does not believe there is a good enough prognosis to recommend that LRP should be placed either with her mother alone or with her parents together.
21. If anything, opines Ms Gillard, the mother presents as more helpless than before. She has spoken at length of how vulnerable she feels and has presented as feeling very anxious about being separated from RP.
22. RP has done nothing so far as anyone can judge to address the difficulties brought sharply in to focus as the result of the last substantive hearing. At court on 4^th October, he suggested he was in touch with mental health services and would be able to produce some form of report from his treating psychiatrist. On 6^th November, RP's Counsel confirmed that he there had been no such engagement and there could be no report from anyone within the mental health services. There was no treating psychiatrist.
23. There are, says Ms Gillard very real question marks as to whether either the mother or father is motivated to respond to any help offered. The risks, she suggests, are as they were before. There would need to be a period of treatment and engagement with interventions such as DVIP (domestic violence intervention project) and anger management before there could be any review in relation to RP's relationship with the mother and possible involvement in LRP's life.
24. Overall, it is Ms Gillard's view that although the mother wishes to care for LRP, her own emotional needs are such that she would struggle in any situation, even if supported, if she were unable to be with RP. He is not minded to address his difficulties. The mother is unlikely to be able to utilise support and guidance so as to benefit from it in any meaningful way if she remains in a relationship with the father.
25. In response to Mr Perkins' questions as to her view of the mother's willingness to accept counselling support, Ms Gillard said their discussion had been a very general one. It seemed as though the mother had done no more than make a telephone call to a particular resource (IAPT) which could provide her with counselling. It was all "very flimsy" observed Ms Gillard. In relation to the mother's suggestion of a placement at the Cassel Hospital, Ms Gillard said they had not discussed such an extremely intensive psychoanalytical intervention when they'd met. Ms Gillard commented that neither parent had made any progress such that they might be suitable for such an intensive programme. Her forecast is that the minimum period of any treatment plan would be "at least a year."
26. Looking at LRP's needs, Ms Gillard said that in her opinion she needs a long term family as soon as possible. The mother's personal needs override her ability to prioritise her child. Ms Gillard would be very, very surprised if there are not a number of adoptive placements available. Long term foster care would "certainly not be" Ms Gillard's first choice for LRP because such a placement would not offer her the security which can only arise from becoming part of an adoptive home.

Parents' failure to attend the hearing

27. The parents' failure to attend court yesterday requires further exploration. It had been expected, at least until Ms Gorbutt the children's guardian discussed matters with the parents on 7^th and 9^th December, that the mother would come. She had engaged with her Solicitors and made a statement. The same could not be said for the father who has failed to keep in contact with and supply instructions to his Solicitors.
28. In their meetings with Ms Gorbutt, over the weekend and on Monday, the parents seemed to be accepting Ms Gillard's assessment "in part." They confirmed their continuing relationship, their commitment to one another and their resulting understanding that their case in relation to LRP would not succeed. They explained they had been "clutching at straws" and "hanging on to false hope." They talked in terms of "not giving up" and of their wish for her to know they had "fought to the end" as they had for TLP and ARP.
29. Whilst they appeared to Ms Gorbutt to be able to acknowledge change is needed and for intervention by specialist services, it was clear that the parents continued to struggle to understand and make sense of the findings and judgment and the resulting implications. They talked in terms of agency failings, family blame and of not having been "allowed" to keep their sons.

Parents' instructions to Counsel

30. Both Mr Squire and Miss Moore were able to take their clients' instructions over the telephone yesterday morning. The following is a summary of what I was told. The mother knows about the hearing and also that the local authority has issued an application for a placement order. She understands that is part of the necessary process when there is a plan to place a child with adoptive parents. The mother is content not to attend court and not to give further or more detailed instructions although she "does not want it to happen." The mother, said Mr Squire, is keen to attend a final, 'farewell' contact and together with the father. She knows that RP must attend a meeting with social workers before any such contact can be arranged; and that it would be a pre-condition of her own contact, given that she will only attend in his company. As for contact after LRP has moved to live with her adoptive family, the mother would ask that indirect contact should include photographs.
31. Ms Moore reported the following arising out of her telephone discussion with the father. He confirmed that he finds the proceedings particularly difficult given their proximity to the earlier February hearing. In the father's mind, it has been likely "all along" that adoption would be the eventual outcome. He accepts there has been ample time for him to engage with his Solicitors and the proceedings. He knows the placement order application is available and understands the legal processes as the result of his experience in relation to TLP and ARP. He has no complaint about and is fully aware that the hearing will proceed in his absence. Miss Moore had no instructions to apply for an adjournment. He does not wish for the decision to be made that LRP should be made the subject of a placement order. If such an order is made, he would wish for there to be indirect contact as there is for the two boys and his two daughters by a previous relationship.

The legal principles

32. The legal principles of application when the court is confronted with applications of this kind are well known. Wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625). Care plans for adoption are "very extreme" only made when "necessary" for the protection of the children's interests, which means "when nothing else will do", "when all else fails." Adoption "should only be contemplated as a last resort" (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
33. Before I could consider placing LRP elsewhere than with her parents, or one of them, I must be sure there is no practical way of the authorities or other agencies providing the requisite assistance and support which would allow her to be cared for by at least one of their parents (Re B-S (Children) [2013] EWCA Civ 1146).
34. I must analyse and consider all of the realistically available competing options. And I must weigh the associated positive and the negative factors. I have to be satisfied there is a sufficiency of evidence in relation to each proposal so as to undertake a global, holistic and multi-faceted evaluation of LRP's welfare.
35. As Mr Squire observes in a carefully drafted Position Statement, the questions put to Ms Gillard were entirely in keeping with the guidance in Re B-S (supra). The resulting evidence and analysis are, he says, wholly adequate to enable the court to carry out its function. The mother's legal team, advises Mr Squire, has been unable to identify any resource to enable a challenge to Ms Gillard's conclusion that there is no support which would allow the mother to parent LRP in a safe manner.

The realistic choices

36. The choices for LRP, in truth, are severely limited. Either she should be allowed to return to her parents who are and in all probability will remain a couple, united in their stance that there is really no reason to be anxious about any aspect of the care they are able to offer a child. Or LRP should be permitted now to move to a permanent, adoptive home.
37. At one time it had been floated that friends of the parents, Mr and Mrs K who live in the East Midlands, might put themselves forward as long term alternative carers. They have not done so. They have three very small children, aged 5, 3 and 1. It emerges that when she was young, Mrs K was the subject of local authority intervention because of deficits in the quality of parenting offered by her own mother. There is a troubled relationship between Mrs K and her mother, the couples' landlady in South London, TJ.
38. The only other possibility mentioned within Ms Gorbutt's report, is that LRP might be placed in long term foster care. It emerged during the course of the evidence that the primary reason for raising long term foster care, which Ms Gorbutt does not support, was so as to attempt to satisfy the requirements of Re B-S (supra) and other recent Court of Appeal guidance.
39. Ms Gorbutt's report suggests that long term foster care would be a "means by which permanency can be achieved"; and that "a long term foster home can offer … commitment, security and stability within a new family…" I profoundly disagree with those contentions. Long term foster care is an extraordinarily precarious legal framework for any child, particularly one a young as LRP. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.
40. The realistic, as opposed to the fanciful, options are (i) a return to her parents or (ii) a placement for adoption. So whilst I am sympathetic to Ms Gorbutt, as I would be to any practitioner who is endeavouring to fulfil the requirements of the law in the way assessments are conducted and reports written, it is worth reiterating that the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched

Placement order – the disadvantages

41. The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. She will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be, as Ms Gorbutt suggests, that in future LRP will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated.
42. Ms Gorbutt comments that "in the event a culturally matched placement is not found, LRP's diversity needs will not be met." She continues, "There is a risk of placement breakdown." Those fears, it seems to me, are misplaced. They fail to recognise the realities, well known to all professionals who practice in the field. I mention the most obvious. First that the younger a child is placed within his / her permanent alternative family, the better the chance of a very successful outcome. Second that LRP is an infant child born to "White British" parents of average to good intelligence so that 'family finding' for her should be entirely straightforward. Third, that there should be no difficulty at all in identifying a culturally appropriate placement. Fourth, that I may safely ignore the absurd suggestion that LRP's "diversity needs will not be met."

Advantages of a placement order

43. The advantages of a placement order are many and obvious. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his / her development. They will protect LRP from harm of whatever kind. The overwhelming probability is that they will be able to provide her with the priceless gift of a happy, secure and stable childhood from which she will derive life-long advantages.

Advantages of a return to the care of her parents

44. The advantages of a return to the care of her parents are the self same as those already considered under the heading – Disadvantages of a placement order – see paragraph 41.

Disadvantages of a return to her parents

45. The disadvantages for LRP of a return to the care of her parents are manifest from even the most cursory reading of the findings made in March. Both CH and RP fully understand, I am quite sure, what the impact is of my conclusions about the risk of harm. It is unnecessary to reiterate the various elements. CH and RP have no problems in comprehending any of the concepts set out within the legal documents.
46. There has been just a little change in the way they have lived their lives since March. They moved away from the P/C household in mid August. They now live on the top floor of a house otherwise occupied by TJ and CJ. They met TJ through "Cash Converters."
47. The extent to which the parents have cut themselves adrift from the paternal grandmother RC and her husband SC is difficult to assess. During evidence on 4^th October, the father initially said that since they'd moved away from the family home, he had "barely talked" with his mother. Asked whether she had seen LRP he said, "No" though he would have wanted his mother to see her. Later, in cross examination, it emerged that the grandmother had seen LRP just the day before the hearing, at the hospital. She'd been present at the time when a meeting had taken place with one of the social workers.

Overall conclusion

48. Overall, I am entirely persuaded that the course suggested by the local authority is the one which best accords with LRP's welfare needs. Her parents should not to be criticised for the positions they have taken. They have faced an enormous dilemma since the time when they knew the mother was pregnant. In their heads and in their hearts they knew that their desire to be with one another would mean, almost certainly, that they would not succeed in being able to keep LRP. It must be a tribute to them – and their wish to do the right thing by their child – that they have not actively opposed the local authority's applications.
49. On a human level, I have very great sympathy with the parents. Neither of them had the kind of start in life which anyone would want for a child. They never had the foundation which might have enabled them to provide adequately for any of their three children. They deserve credit for the way in which they have given instructions, made modest and appropriate requests for indirect contact and essentially allowed their daughter to be found a permanent alternative family whilst she is still so very young.

The placement order application

50. Finally as to the application for a placement order, I should make the following observations. Doubtless because of the very short time frame within which the care proceedings have been concluded, and the need for Agency Decision Maker approval prior to the launch of the application, the documents were only issued yesterday. Had I believed that amounted to any real unfairness for the parents or that they wished to make representations about the late issue of the application, I should have paused before proceeding to final orders.
51. As it is, they do not seek any adjournment; and I remind myself that during the February hearing the documents to support the placement order application arrived only during the third week. Quite obviously, it would have been better if, in each instance, the procedures had been better timed. It seems to me that neither parent has been disadvantaged in any real sense. Each of them understands the added application is the final legal requirement before I am able to finally relinquish responsibility for LRP.
52. Ms Lorraine Walker's 48 page Placement Order Application Report is an impressive document which persuades me, in combination with everything else, that LRP's welfare will be safeguarded and promoted by the making of such an order.
53. I dispense with the mother's and the father's consents to a placement order pursuant to s. 52(1) of the Adoption and Children Act 2002 on the basis that LRP's welfare demands that I should do so.