England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2014

Mrs Justice Pauffley:

Introduction

1. Care proceedings with associated applications for placement orders seldom conclude with an agreement. More often than not, and very understandably, there are disputes in relation to many aspects of the local authority's applications most of all about the form of order sought.
2. On the first day of this hearing it seemed as though there would be a contest though the mother was not present in court. Her absence was atypical; she had never missed a hearing before though the professionals' sense was that she had been gradually disengaging from the process. I had no hesitation in acceding to Miss O'Malley's suggestion of adjourning to the next day for inquiries to be undertaken.
3. Overnight, contact was made; the allocated social worker had a lengthy discussion with the mother over the telephone. All the signs were that the mother would be urging me to make a care order on the basis that her son would live with long term foster parents. During the course of the proceedings she had indicated an acceptance that currently she is unable to look after him but hoped he would be restored to her when he is older.
4. When the hearing resumed on Wednesday morning, Miss O'Malley produced a position statement in which the case was made for long term fostering as opposed to adoption together with ongoing frequent unsupervised contact.

The hearing

5. The hearing itself was short but profoundly important. In the space of a very few hours, evidence had been given by the allocated social worker, a social worker in the local authority's Adoption Support Team and then by the mother herself. When that process was concluded there was complete agreement as to what should happen. As Miss O'Malley observed in her final submissions, the hearing had been immensely constructive. Her client had been greatly assisted by a fuller understanding of the issues, made possible by listening to the evidence of the two social workers. The mother's own evidence had been, Miss O'Malley suggested, compelling particularly because she had been able to demonstrate her genuine love for her son as well as her ability to give priority to his welfare needs. It had been, said Miss O'Malley, extremely helpful that the mother had been afforded time for reflection.

Essential background

6. In the circumstances, it is not necessary to provide an extensive background history. It is sufficient to say that the mother is in her early thirties. She has a long history of drugs and alcohol misuse. T's father lives and works abroad. The parents' relationship began in 2006 and ended in about 2012 when the father was deported to his home country.
7. T was born in late 2007, the mother's fourth child. Her eldest, now 15 years old, lives with the maternal grandmother in Eastern Europe. The mother's second and third children who are now 9 and 7 were made subject to care and placement orders in 2006.
8. When T was born, the mother obtained a false passport and was able to 'disappear' from the view of the authorities. For five years or so she used her false identity. T's birth was registered using the mother's assumed name.
9. Local authority intervention was initially under a child protection plan on the basis of neglect. Significant anxieties for T's well being arose as the result of referrals from his school. The mother's then partner had been seen slapping T across his face in her presence outside the school. Subsequent inquiries revealed that he had been slapped often. There was a volatile, sometimes violent, relationship between the mother and her partner. Drugs and alcohol misuse continued to contribute to significant shortcomings in the way that T was looked after.
10. In October last year, at a time when the mother had been told proceedings were imminent, she took T to France. They were located just a few days later; the mother returned voluntarily to this country.
11. T went to live with foster parents. A parenting assessment was undertaken by the Amber Project which concluded that the mother would be unlikely to be able to meet T's basic physical or complex emotional and psychological needs in the short or long term. The mother, said Miss Tuffour of the Amber Project, had been unable to show she had the ability to provide a safe, predictable and consistent level of protection for her son or to support his developing needs now or in the future. The mother's unmet emotional needs make her vulnerable and unable to protect T from harm.

Relevant evidence

12. So much then for the background. The mother was in court throughout the evidence given by the two social workers – Miss Ing who has been T's allocated social worker since August last year and Miss Cucu a social worker from the local authority's Adoption Team.
13. What emerged was that the local authority does not see the mother as being any kind of disruptive influence; she is viewed as being receptive to both advice and direction. Due weight is given to the length of time that T lived with his mother and although the attachment he has with her may not be secure, it is acknowledged that she has been the single most important adult in his life.
14. The local authority is keenly aware that by virtue of T's age it will be difficult but by no means impossible to find him an adoptive family. It is also recognised that it will be very largely the prospective adopters' "call" as to whether and how contact with the mother would take place. Miss Ing readily agreed that if the mother were able to support the intended adoptive placement then there would be a higher chance of the adoptive parents embracing contact.
15. Miss Ing expressed anxieties about the possibility of long term fostering for T – that he would not enjoy a normal family life; there would be continued involvement on the part of social workers. His social activities necessarily would be subject to monitoring and the need for police checks if he wished to stay overnight with a friend. Before his foster parents could make a significant decision for T, they would have to check with the local authority. There would have to be regular PEP meetings at his school; and overall a great many procedural requirements.
16. Miss Ing also described the "very high level of creativeness" which could be employed in setting up indirect contact between T and his mother – cards and Skype contact to mention just two of the possibilities. She described T as younger emotionally than his chronological age; he functions as would a child of 4, 4 ½ or 5 at best. Emotionally, he is still "very open to suggestions and not as adamant as many 6 year olds would be about going home." In Miss Ing's view, T is "very adoptable." She also pointed out that with adoption there would be "ownership" which she believes T needs if he is to thrive.
17. I should also record that the 'welfare analysis' within Miss Ing's final written statement was exemplary. She had properly considered all of the options, evaluated the inherent risks versus the advantages and provided clear, reasoned analysis in relation to each. I suspect it would be hard to find a better illustration of such well written and focussed expert evidence.
18. Miss Cucu said that many adopters feel "threatened by a proposal for direct contact" but this is something she is able to "work with". In her opinion, T would need a period of settling in when there would be no direct contact, then some indirect communication leading on to an exploration of face to face visits. Whatever happens, Miss Cucu would not wish to jeopardise the process of matching T to an otherwise excellent family. She described him as "a lovely, lovely little boy" so that although by reason of his age it will be "slightly more difficult to find him a family" she is optimistic. In Newham there has been a good success rate – over the past 5 years, 33 children between the ages of 5 and 9 have been placed for adoption.
19. Miss Cucu also said that within her team there would never be a suggestion for a child of T's age that contact with a parent should be completely severed. Contact arrangements would be made on the basis of flexibility; changes can be made as the child's needs alter. She referred to redacted school reports as an example of what could be done to "enrich" indirect contact and that T would always have his link with his birth mother. Miss Cucu's anxiety is that if there were to be direct contact, it "could significantly unsettle (T) in his adoptive placement." Miss Cucu referred to the support on offer to the mother post adoption saying the Newham's service is "brilliant". It would be straightforward for the mother to come in to the office, "be given support in writing appropriate letters and helped to make Skype contact at no cost to her."
20. The mother gave her evidence after a slight pause in the hearing. When she did so, she began by saying that the most important thing for T was "contact even if he is to be adopted". She referred to the adopters of her two older children, said she had been to their home and knows where they live. The mother, in fact, had suggested that couple as potential adopters for T but they had refused. The mother emphatically rejected the possibility that she would seek to disturb T wherever he might be placed. She said, "Never would I disrupt. In the previous case, I did not disrupt. I'm fine (about that placement).
21. Asked about indirect contact post adoption, the mother said that although it would not be easy for her, because she is "interested in T (she) would agree."
22. Sadly, at the present time, the mother is not at all well. She has depression for which she is receiving treatment and she suffers from occasional panic attacks. She described how this is not an easy time for her; she has been abusing alcohol and she does need help. Just one week ago her most recent relationship with a man she met in France last October came to an end. The mother does believe she can improve her life and her prospects but she will need help.
23. When she was cross examined by Miss Irvine on behalf of the local authority the mother said she understood the difference between long term fostering and adoption. Then, unexpectedly, she added that although "long term fostering is OK, T would never get a family. An adoptive family would be better – at least he would get a family and be settled." The mother wants one family for T for the rest of his childhood; not as she put it "change, change, change." If the new family would allow it, the mother would very much wish to meet them.
24. The mother also said, when asked about the contact there had been between herself and the older two adopted children that she had "stopped it (herself)." She respected the adoptive parents who are in her eyes "good people" and she had "stepped back." It had been a comfort to her to see her daughter calling her adoptive mother, "Mummy."
25. Asked about the care plan for adoption and the limited, twice yearly, contact proposals, the mother said, "OK, Yes I agree." The problem for T, as she sees it, is that he is not a baby whereas her older two children were infants when placed for adoption. The mother went on to say that if she were able to make sure T is OK she will "slowly move from his life and give him a chance …." She did agree he should have time to settle in his new home and then there might be a gradual reintroduction of indirect contact.

My role

26. Against that quite remarkable evidential background, it might have been thought that it would be very largely unnecessary for me to say more than that I concurred with the course agreed between the parties. My duties, very obviously, extend more widely than that.

Threshold Criteria

27. The first question for me is as to whether the s.31 threshold is crossed – whether I am satisfied that there is a permissible basis for concluding that T has suffered is likely to suffer significant harm as the result of the way in which his mother has or would be likely to care for him.
28. As to that, I need say only this – that the mother herself accepts and has explained that she was wrong to allow the partner with whom she and T shared a home last summer to look after T and that when he did so she was unable to protect T from physical and emotional harm. Moreover, the mother recognises that when she was either intoxicated or under the influence of drugs she was not capable of looking after T in the way that he deserved. The mother also accepted, during the assessment by Miss Tuffour of the Amber Project that there were enduring problems in her ability to provide appropriate boundaries and structures for T.
29. In the circumstances, it is straightforward to conclude that the threshold for s.31 purposes is crossed. If there is one sentence which encapsulates the situation, it is this – that as the result of the mother's long standing problems arising out of her own sad and unhappy childhood as well as her difficulties with drugs and alcohol misuse she was, and would be, unable to provide T with the safety, protection and consistent good care he deserves.

Welfare determination

30. When, as I must, I consider the realistic possibilities for 'welfare' orders, it seems to me that the local authority's proposal – the care plan for adoption – supported as it is by the mother and also T's guardian is overwhelmingly in his best interests.
31. Several factors deserve mention. First that when the options within the natural family are unavailable, as here, there is no practicable alternative to planning for T on the basis that he should be found an alternative family. The local authority, as Miss Ing's statement evidence shows, has done all it practically can to explore the options in the home countries of the maternal as well as the paternal relatives. For the moment T's father's whereabouts are "highly uncertain." Many attempts have been made by Miss Ing to establish telephone contact with both the father and his parents who live abroad. Though initial indications had been that T's grandfather was interested in providing a long term home for T, more recent attempts to engage him in discussion over the telephone have been unsuccessful. All the indications are that although they would have liked to look after T they did not wish to so unless he said he wished to live with them.
32. T's maternal grandmother is in no position to assume responsibility for her youngest grandchild. There are no other maternal relatives who have been put forward.
33. In those circumstances the local authority is altogether right to canvass an adoptive placement as well as the possibility of long term fostering should it be impossible, within the next six months or so, to identify prospective adopters.
34. T should have the opportunity to enjoy ordinary family life with a couple, hopefully, to whom he will be able to make a good and healthy attachment. He should have the advantage of being able to feel he belongs within and that he is a full member of that family; that there are no circumstances in which his placement will be brought to an end; that his period as a 'child in care' with all of its attendant difficulties has come to an end. By providing him with a permanent adoptive family, it should be possible to ensure T's emotional security, enduring stability, a predictable and safe environment in which he will be able to flourish and achieve his true potential.
35. It may be more difficult to find prospective adopters if there is a continuing contact requirement. The mother understands that and is willing to put aside her own wish to continue to have face to face contact so that T will stand the best possible chance of securing a new family. It should be emphasised that she is quite extraordinarily unselfish and courageous in being able to so prioritise her son's needs.
36. It is my sense that the mother was able to come to that position as the result of a number of factors. First that the evidence of the two social workers was given in a compassionate, understanding and uncritical way. Neither Miss Ing nor Miss Cucu had any desire to denigrate the mother or make her seem anything less than committed, given her limitations, to doing the best she could for her son. They had sympathy for her, knew that they had a job to do but had no interest in making things more difficult for the mother than they already were. The same could equally well be said for Miss Irvine who managed her role as Counsel for the local authority by adopting a sure-footed but light touch. There was no need whatever for any kind of robust or confrontational stance and nothing of the kind was in evidence at any stage of the hearing from any quarter.
37. Miss O'Malley had had a conference with her client about 10 days or so before the hearing began. She was well prepared for what could have been a rather difficult hearing. By the way in which she cross examined the social workers and gently guided her client through the process of giving her evidence in chief, Miss O'Malley demonstrated humanity and great perceptiveness. It seems to me that no one component brought the hearing to such a harmonious conclusion. It was a combination of elements each of which played its part.
38. No one knows what will result from the family finding exercise. All I would say having listened to Miss Cucu is that all the signs are that she is a dedicated worker who will respond with great energy and enthusiasm to the task of identifying the right family for T. It is likely to be of enormous assistance that his mother is fully supportive of the plan; that her background is of having been able to support the adoption of her second and third children; that she has never sought to undermine their adoptive home; and that when she sensed the time was right she took the decision herself to withdraw from their lives.
39. All of those things are likely to reassure a prospective family faced with the question as to whether they might, in T's interests, be prepared to encompass limited ongoing contact, even direct contact at very infrequent intervals. Self evidently, T is not an infant. He has an attachment to his mother; and he is quite extraordinarily thoughtful as to the impact of his actions upon her. For example, knowing as he does that his mother likes to see him wearing a particular warm and padded coat, he will always ensure he has it on when seeing her at contact. On those occasions when he knows he will not be meeting her, he will wear his preferred and favourite Parka.
40. Adoptive parents who are interested in providing a loving, healthy and happy family life to a child of T's age tend to be quite extraordinarily generous minded individuals. They are likely, when they know about his life story, to be able to feel very positive about him precisely because he is, as Miss Cucu said, such a lovely boy. When they come to know about and meet his mother as well as understand that she poses no threat to their own and T's security, I would hope that they might be able to include her – in some small way – in T's future life.
41. There is likely to be no more potent nor important message for him than that his mother fully supports the plans for his future. If he were to know that there will be times, after he has settled, when he might be able to see her again, that is likely to be an enormous reassurance. After all, one of T's enduring anxieties is as to whether his mother will be able to 'get better.' If he does not have some contact with her then in all probability he will worry about her.
42. Nothing I have said is intended to be any discouragement to the family finding team in pursuing with vigour the search for an adoptive family. The priority has to be the best possible match for T – people who are empathic, compassionate, outward looking, generous and kind. My fervent hope is that, within as short a time scale as practicable, such a family will have been found for T.

Finally

43. Maybe when he is older, T will read this judgment. If he does, I would wish him to know that I am in no doubt at all about the extent of his mother's love for him. I have not only read a great deal about her, I was able to watch and listen to her evidence during the hearing. She has insight into her problems and knows she could not be the kind of mother T needs. Everything she has done here she has done for T precisely because she loves and wants the very best for him. She is a truly remarkable woman.