England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISON
NORTHAMPTON DISTRICT REGISTRY
(Sitting at THE FAMILY COURT AT BIRMINGHAM)

		Priory Courts, 33 Bull Street Birmingham, 1B4 6DS Strand, London, WC2A 2LL
		31 July 2017

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MR. JUSTICE KEEHAN:

1. In this matter I am concerned with four children: EF who was born on 3^rd February 2010 and so she is seven years of age; GH who was born on 14^th January 2012 and so is five years of age; IJ born on 18^th June 2014 and so she is three years of age; and KL who was born on 20^th January 2016 and so is eighteen months of age. The proceedings in respect of these four children are brought by Northamptonshire County Council. They made an application for a care order on 24^th October of last year. They sought and were granted an interim care order on 26^th October of last year and subsequently on 15^th May this year they made applications for placement orders in respect of all four children. The mother of the children is AB and the father of all four children is CD.
2. The matter was listed before me last Thursday for a three day final hearing on the local authority's application for care orders and placement orders. At a previous hearing I had dismissed the parents' applications for further assessment of family members who had been negatively assessed by the local authority in November and December of last year. I also dismissed the father's application for the paternal grandfather to be assessed, and this judgment should be read with the judgment that I gave on 5^th May 2017. On Thursday I heard evidence from the first appointed social worker, from the independent social worker, from the last appointed social worker and from the team manager, Ms. J. It was proposed that on Friday of last week I should hear evidence from the family finder and from the parents and the children's guardian. Unfortunately, the family finder was ill and could not attend court.
3. Having reflected on the matter overnight, I asked the parties to come into court and addressed the parents directly, telling them in turns that I accepted that they loved their children very much indeed and that in many respects they were good parents, but their denial of the domestic violence and abuse in the family caused me concern and that if they were able to admit that there had been serial domestic abuse by the father of the mother there was a chance that the children could be rehabilitated to the mother, but if I was not satisfied that they were telling me the truth, it was more likely than not, that I would be compelled to make placement orders in respect of all four children. I adjourned for a period of time. When I returned to court the mother and the father accepted that there had been domestic abuse and accepted, in terms, all of the findings sought by the local authority, save that they did not accept that the father had smacked the two older children. The parents then both gave evidence followed by the children's guardian, at the conclusion of which I indicated my provisional view and the local authority, having sought instructions from the senior management of the local authority children's department, invited me to give a judgment which I now do.

The Law

4. In considering these applications I have well in mind the provisions of section 1(1) of the Children Act 1989 that the welfare of the children is my paramount consideration. I have regard where relevant to the provisions of section 1(3) of the 1989 Act. I take account of the provisions of section 1(2) of the Adoption and Children Act 2002, the paramount consideration for the court is the welfare and best interests of the children throughout the whole of their lives. I also take into account the provisions of section 1(4) of the 2002 Act, the welfare checklist. I have close regard to the Article 6 and Article 8 rights of the parents and of each child, but I bear in mind that where there is a tension between the Article 8 rights of a child on the one hand and a parent on the other the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR p. 210. When considering the plan for adoption and the placement application I paid close attention to the decision of the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33 that adoption is appropriate only where nothing else will do in the welfare and best interests of the child. I also take account of the subsequent decisions of the Court of Appeal in Re B-S (Adoption: Application of s.47(5)) [2013] EWCA Civ 1146 and in Re R [2014] EWCA Civ 1625.

The Background

5. The father is Lithuanian. The mother is Latvian. They came to live in this country and the children were born here. There has over a period of years past been involvement with the local authority Children's Services Department. The parents did not co-operate. Somewhat surprisingly, the reaction of the local authority in light of that non-engagement was to close the case. Matters came to a head in October of last year when the mother alleged that on 15^th October the father had seriously assaulted her. As had happened in the past, the mother subsequently withdrew that complaint. Subsequent to my intervention the parents accepted that there had been domestic abuse in the family home, that the father had assaulted the mother on 23^rd July 2013 when she was holding one of the children and he accepted that he assaulted her on 15^th September 2016 when the children were present in the home. They both accepted that the father had for many years been a constant user of cannabis, and the father explained to me in his evidence that the consequence of that was that he lost his temper and was violent to the mother when in other circumstances he said he was not. The mother, as victims of domestic abuse so often do, after each repeated episode of violence or abuse hoped against hope that the father would change and the abuse would no longer continue.
6. It was agreed by the local authority and by the children's guardian that the care offered to these children by these parents was good in terms of the material provision made for the children, in terms of the conditions of the family home, in terms of the attendance at school of the older children and of the positive way that the parents engaged with the school. It was agreed and accepted that the mother and the father genuinely and very deeply love their children and that the children very deeply and obviously love their parents. It was agreed and accepted that the quality of contact is universally good.

Analysis

7. A consequence of the children being received into care was that they were placed in two separate foster homes, one for the older two girls and one for the younger two girls. The local authority's plan was to place all four children for adoption but they did not intend to pursue a search for an adoptive placement of all four children together. Rather it was intended, following a sibling attachment assessment to place the two older girls in an adoptive home and to place the younger two in a separate adoptive home. The search in respect of the older two children given their ages at 7 and 5 was to be limited to a six month period, following which the plan would revert to one of long term foster care. If all four children had been placed for adoption it was proposed that there should be regular and frequent direct contact between the siblings, something of the order of six times a year. The matter became very much more complicated if the older two were placed in long term foster care because whilst that they remain in foster care there would be some direct contact between the two older children and their parents. That would be bound to have an adverse effect on the prospects of the older two children being able to have direct contact with the younger two children. The likelihood of the prospective adopters or adopters of the younger two agreeing to direct contact with the older children when those older children were having direct contact with their parents, and especially in respect of a father with a background of violence, was accepted to be poor.
8. It was also agreed by all parties that in reality the only prospect of keeping all four children together was if they were re-united with their mother. The local authority and to a somewhat lesser degree the children's guardian asserted, notwithstanding the parents' admissions, that the correct plan was to place all four children for adoption. I was greatly troubled by that plan. Sibling relationships are most likely to be the most enduring relationships that a child will have, and the prospect of separating these four girls from one another for the whole of their minority and potentially the rest of their lives was very stark and, in my judgment, not in their welfare best interests. I also paid close regard to the fact of the children's cultural heritage. They have Latvian and Lithuanian parents and culture. Their parents speak Russian and the prospects of finding prospective adopters who shared that cultural diversity and language was not good. So if the local authority plan was approved not only would the children lose each other - that is the two groups of siblings - it was very likely that they would lose their cultural heritage.
9. The local authority, again to a lesser degree supported by the guardian, was concerned as to why it was so very late in the day that the parents admitted the violence. It was concerned that although the parents have lived separate and apart for some months now, that was thought to be a purely physical as opposed to an emotional and psychological separation. There was a concern that the father, whatever orders the court might make, would seek to involve himself in the lives of the mother and of the children and, given the long and recent history of violence to which the children had been exposed, by hearing if not seeing the abuse, the local authority and to some degree the guardian considered the risk was too great for the court to contemplate rehabilitation.
10. I acknowledge there is a risk that the parents' separation is, to use a colloquial phrase, a front, a ruse. I accept there is a risk that the parents have not in truth emotionally or psychologically separated and there is a risk that the father will ignore and will not obey court orders given his very great love for and his desire to be involved in the lives of his girls. Those risks are there. Those risks must be tested in my judgment under any rehabilitation plan, as must the parents' willingness now expressed to engage with and co-operate with the local authority. If there is any evidence that the parents are not being open and honest or the father is being permitted or has unauthorised contact with the children the parents should be in no doubt that the consequences will be grave indeed for the children and for them in as much as it is very likely the local authority would renew its application for placement orders which are likely to be supported by the children's guardian and are likely to be made by the court.
11. The issue is whether those risks are manageable, and those risks have to be balanced against the alternative. The alternative is permanent separation of the children from their parents for all four by way of adoption, but potentially only in respect of the younger two with the older two placed in long term foster care. This is, as I completely understand, what the parents dread, but my evaluation of this case is not based on what the parents want or the parents desire. It is solely based on my assessment of the welfare best interests of each of these four children. I am satisfied that there is a prospect that all four children can be rehabilitated to the care of their loving and caring mother. I accept, as I have indicated, that that route carries risks, but in my judgment they are manageable. In those circumstances I do not consider that nothing less than adoption will do in the welfare best interests of each of these four children. Moreover and in any event, I am not satisfied that it is a proportionate response to the risks that I have identified that the children should be placed for adoption. On the facts of this case and where we stand at the moment the draconian order of adoption is wholly disproportionate to the risks identified. Furthermore, I am not satisfied pursuant to section 52 of the 2002 Act that the welfare of the children requires me to dispense with the consent of either parent to adoption.
12. I accept and take full account of the fact that the parents' admissions came very, very late in the day. I accept their willingness to engage with and co-operate with the local authority has come very, very late in the day. But I accept the evidence of the parents that for the mother she was frightened of what would happen if she told the truth and wrongly she feared if she told the truth she was bound to lose her children, an outcome she could not bear to contemplate. Similarly so, in respect of the father he said it was only when he listened to what I had to say in court that the full seriousness of the position which they were in became clear to them.

Conclusion

13. Notwithstanding the position adopted by the local authority, I am grateful to the local authority, that in light of my decision it will formulate a care plan for the rehabilitation of the children to the mother and it will file such a care plan in early course whereafter the matter will come back before me. The local authority contend that any rehabilitative process should be under the auspices of an interim care order. If the rehabilitation plan succeeds and progresses with the children being placed with the mother currently the local authority are tentatively proposing that be under the auspices of an interim supervision order. I am concerned that the change in the nature of the order reflects internal politics with a small "p" and processes in the local authority and not an assessment of the welfare best interests of the children. Accordingly, in addition to filing a revised care plan the local authority will also file a statement from a senior manager of the local authority setting out why, if it be the case, the rehabilitation programme should progress with the children in the care of the mother under an interim or full and final supervision order.
14. I propose, as I indicated last Friday, to transfer this matter to the High Court for the purposes of exercising the inherent jurisdiction to make injunctive orders against the father. I repeat my warning which I gave to the father on Friday of last week that if he breaches the injunctive order that I will make even on one occasion and I find him to have so breached the order, I will without any hesitation send him to prison for as long as the law permits me to do so. The parents must understand that this position having been reached they will have to comply with all conditions and requests made by the local authority. That may be difficult and hard for them but for the benefit of their children who they love very dearly at the moment I am satisfied that is what they will do. I do not mean to issue a threat, but they should be under no doubt whatsoever that if they do not do so the consequences are likely to be that the children will be removed once more from the mother's care and be adopted.
15. I have been critical of the past inaction by this local authority. I make it plain that I am not at all critical of the stance adopted by the local authority in these proceedings. I well understand the concern, if not scepticism, that the local authority has in relation to the parents' late change of heart and position. But as will be plain from this judgment, I do not share the same.