England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY


IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: M (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		2nd March 2016

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

1. This court deals with many very sad cases but this one, I have to say, is particularly so. I am concerned with the welfare of A, a boy born on 4^th June 2015, so who is now 9 months old. He is the fourth child of the late M and the first son of F, who is 31 and has daughters by another woman, M and F being A's parents.
2. South Tyneside Council commenced care proceedings very shortly after A's premature birth at 27 weeks gestation because of the extremely serious health issues of both A and his mother. At that time, the survival of each was in doubt. There was no-one able to exercise parental responsibility in respect of A, his father then being a serving prisoner in Her Majesty's Prison Durham. In fact, each survived their immediate medical crises. A, despite suffering a lung injury of immaturity which is now chronic, has progressed with a surprisingly good outcome, getting better all the time, but sadly his mother's health thereafter fluctuated and she became seriously ill just before Christmas and very sadly died on 28^th December at the age of just 27.
3. The care proceedings extended beyond A because it also encompassed her three other children, A's half-siblings, B, now 8, C, almost 7 and D, approaching 5 in May. They had, as an emergency, gone to live with their maternal aunt, MA, who cared for them, with conspicuous success it should be said, until such time as it proved possible to move them to live with their father, Z. That was, in itself, no mean feat. There had been no direct contact for a considerable period of time. He and their mother had had a very difficult relationship and in fact he had been ruled out as a carer in earlier litigation and at the time of A's birth, not only was there no relationship with his children, his whereabouts were in fact unknown. Following, in short, extensive assessment and hard work on everyone's part, those children were reintroduced to their father and as recently as 29^th January the court approved a plan whereby they live with him and his partner and their children.
4. A, meanwhile, has lived in foster care since his discharge from hospital which itself followed lifesaving surgery some time in November. He is doing well. He has been comprehensively assessed by Professor Wyatt, consultant neonatologist, who considered, when he reported, that A is likely to have some degree of relatively mild cerebral palsy, manifesting itself by impaired motor function and he concluded that he is at risk, perhaps as high as 50 percent risk, of suffering significant cognitive impairment, learning disability and global developmental delay. As I have already alluded to, A is in fact doing far better than was anticipated. I am told today that he is a happy, well settled baby. He has thus far been able to throw off basic childhood illnesses and it is hoped that in the near future he will come off oxygen and it may well be that Professor Wyatt's prognosis was excessively pessimistic. That is not a criticism of Professor Wyatt, he was doing the best he could, when A was still at a very young age. That said, he remains at risk of these various complications and particularly at his young age of acute lung infection and so, although doing better than anticipated, it seems to the court, in summary at least, that he is a little boy with very particular needs who has required a great deal of specialised treatment and care thus far in his short life but whose prospects for a perhaps more normal life than was first feared appear to be reasonable.
5. Meanwhile, A's father has disappeared entirely from the scene. Ambivalent at first, at the time of A's birth, to the point that he declined the chance to visit his son when he was first born and in extremis despite the prison service offering to make the necessary arrangements. He then had a change of heart. He asked to be joined to the litigation as a party but on his release from prison, on 7^th August, essentially went to ground. He failed to contact the social worker or his solicitor despite very considerable efforts, which have continued to this day, to contact him either directly or via his mother and his non-engagement was such that on 15^th October, I excused his solicitor the need to attend any further hearings unless he re-engaged. He never has. His solicitor has been good enough to write to me this week setting out the attempts that she has made to make contact with F. I am told that he has, for some of the time at least, not been well and may have been in hospital. He is a person with a very considerable background as I will mention just very shortly and he has not attended this hearing today despite, I am satisfied, being aware of the far-reaching nature of the order that is sought.
6. This therefore leaves a vulnerable baby boy with no mother, who has been abandoned by his father, who himself has longstanding very significant mental health issues, a history of drug use, as well as very serious forensic history which may or may not, to varying degrees, play a part in his lack of engagement.
7. The local authority was anxious to place A within his own family if that was at all possible. No doubt there was anxious heart searching by, in particular, MA, A's maternal aunt, who did such a wonderful job of caring for his half-siblings from the moment of crisis until they were able to live with their father, as well as at the same time caring for her own children, and Z, who has taken on the task of reintroducing himself to his three children, taking them into his family home, as well as caring for his partner's children and anticipating the birth of their baby in the near future.
8. A's paternal grandmother expressed some interest in caring for A herself. She visited him in hospital and she did ask to be assessed by the local authority but she withdrew following a screening assessment. As recently as the final hearing for the half-siblings on 29^th January, another name emerged, Y, and whilst the local authority was keen to give her the opportunity to be assessed, she withdrew following an initial meeting. So the situation has been arrived at whereby there is simply no-one within the extended family on either side who puts themselves forward to care for A.
9. Care proceedings involve two principal questions. First, are the threshold criteria for making a care order under section 31 of the Children Act satisfied? Secondly, if so, what order should the court make? Section 31 provides, so far as is relevant, that a court may only make a care order if it is satisfied that the child concerned is suffering or likely to suffer significant harm and that the harm or likelihood of it is attributable to the care being given to the child or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him.
10. At the time of making the interim care order back in June, a threshold was established for that purpose and has never, in practice, been subsequently revisited. Of direct relevance to A were the serious illness of his mother and A himself, the fact of A's father being in prison and showing no interest in having a relationship with his son and the lack of anyone to exercise parental responsibility. Although the local authority produced a revised threshold in October, which in particular made allegations about the mother's inability to maintain consistent levels of basic care, in fact, she never formally responded to that threshold, for reasons associated with her health, other than to deny the correctness of allegations in relation to amphetamine use and the local authority agrees that I should not make any findings in respect of that document but that it is appropriate and proper to proceed on the basis of the threshold insofar as it affects A that was found back in June. In those circumstances, the threshold criteria under section 31 are satisfied and so the principal matter before the court is the nature of the order that should be made.
11. I remind myself of the legal principles that I have to apply, which are not in dispute. It is for the local authority to prove, on the balance of probability, the facts upon which they seek to rely and it is for the local authority, since they seek an order that will enable A to be adopted, to establish that nothing else will do. That jurisprudence all emerges from the Supreme Court case of Re B (A Child) [2013] UKSC 33 and the subsequent Court of Appeal case of Re B-S (Children) [2013] EWCA Civ 1146. As Baroness Hale said in Re B:

"The test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."

That, in turn, echoes what has been said in the European jurisprudence to which I need not refer further.

12. In considering the local authority's application for a care order I must have regard to the welfare checklist in section 1(3) of the Children Act 1989 and, since the plan is for adoption, also to the welfare checklist in section 1(4) of the Adoption and Children Act 2002 and I must treat as my paramount consideration, in accordance with section 1(2) of the 2002 Act, A's welfare throughout his life.
13. In this case, there are no alternatives to the local authority plan, if one accepts the basic premise that foster care for a child of A's age is not a welfare outcome that is likely best to meet his needs, now or lifelong. However high the standard of care may be provided in foster care, he has a pressing need to be claimed to ensure that his emotional welfare, as well as his physical and educational welfare, is met. To quote Baroness Hale, it is one of these exceptional cases where the "overriding requirements pertaining to the child's welfare" point inexorably to the need for a placement order to be made to enable A to be claimed lifelong by adoption. As the President said in the first instance case that he tried relatively recently:

"Adoption is a drastic remedy. It is to be contemplated only when "nothing else will do" and the court must not come to the conclusion that "nothing else will do" until it has evaluated all the other realistically available options and considered whether its concerns can be adequately met by the provision of appropriate support and services…"

14. This is a case where there is, sadly, no realistic alternative. There is no surviving parent with parental responsibility. It is therefore not necessary, I am satisfied, to address the issue of consent, other than to say that had F had parental responsibility and sought to oppose the making of such an order, it is so clear that A's needs are overwhelmingly such as to justify dispensing with his consent under section 52(1). That does not arise because he does not have parental responsibility but I refer to it for the avoidance of doubt.
15. That leaves only one issue. A has three half-siblings, as well as a very significant maternal aunt and also a paternal grandmother who has taken an interest in him. He has had a degree of contact with them. It is very much also in his welfare interests that such contact be maintained if it can be achieved. The local authority is acutely conscious of this and would like, if at all possible, to find adopters who would feel able to promote such direct contact. Experience shows that making it a requirement that sibling contact be promoted is often a bar to the finding of otherwise suitable adopters. That said, the usual concern is the risk of exposing a child to being traced by birth parents. That obviously cannot happen so far as A's mother is concerned and certainly, on present form, it is unlikely to happen with regard to his father, who is not in any way related to A's half-siblings.
16. Nevertheless, as said in discussion and submissions, there is a tension between the imposition of a requirement to permit sibling contact and the finding of lifelong alternative parents, something which may be even more important in A's case than in other children's cases, given his uncertain medical prognosis which brings with it the possibility at least of an even greater dependence on his parents in adulthood. So despite the huge importance of sibling relationships, the most enduring, lifelong, as I am frequently told, it seems to the court that A's pressing need for permanent substitute parents ultimately has to take precedence over the desirability of ongoing contact with his birth family. So in those circumstances whilst, like the guardian, I agree that the local authority should endeavour to find prospective adopters who will facilitate such contact to support those other relationships, and I invite the local authority to amend the care plan to reflect that agreed approach, and I very much hope that this can be achieved, it would, in the court's judgment, be wrong to limit the search for a child who has such special needs in any event and thereby run the risk of denying A the very best possible match. As Miss Hunter put it to me on behalf of the guardian, since there appear to be several families who are already expressing an interest in A in full knowledge of what the background here is, including the possibility of contact, if there are two level pegging prospective candidates or families and one is prepared to offer direct contact and the other is not then that would be a deciding factor.
17. I began this judgment by saying what a sad case it is. I very much hope that notwithstanding this frankly awful start to life that A has experienced that the orders that I make today, namely a care order and a placement order, will give him the best possible prospect of growing up in an emotionally secure, warm and loving environment and thereby enable him, notwithstanding the losses that he has suffered almost at birth, the best possible prospect of achieving whatever potential he may have. Can I express my thanks to the social worker and to the guardian for the considerable work that has gone into this case and I simply wish A well and the local authority well in its search.
[Judgment ends]