Neutral Citation No:  NIFam 2
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Sir Reginald Weir
The nature of the proceedings
The removal of MR from the care of AR
(1) That he did not think that intensive or systematic psychotherapeutic treatment of a traditional kind would benefit AR at this stage in her life.
(2) That no form of group therapy would be of benefit.
(3) Cognitive behavioural therapy was unlikely to work.
(4) A form of counselling by a very experienced psychotherapist might perhaps be helpful.
(5) The obstacles facing any clinician trying to help AR were formidable.
On the basis of this report and the uncertain overall timescale for any work that might be attempted the Trust decided not to engage in it and, purportedly on the basis of that report, it was decided at a LAC review on 15 February 2013 not to return MR to the care of her mother.
"(1) It was also noted that this case has historically been known to Children's Services since 1995 and that it has been an active case with lengthy court proceedings in relation to care order applications which concluded with the final care orders being granted in November 2011. Since that the engagement with the family has been almost impossible." (The words in italics had been added)
(2) "The general consensus of the meeting was that [MR] was suffering from emotional harm and professionals raised issues in relation to whether or not the child's needs were being met within the family home." (The words in italics had been added)
In addition, the following passage had been deleted from the original minute:
"(3) Although it is now felt there is more co-operation from the family."
I was unable to ascertain which of the Trust's officials were responsible for altering or causing these minutes to be altered as no one would admit to having been involved. But I am entirely satisfied that these amendments were deliberately made following MR's removal in an attempt, which might well have succeeded had the changes not come to light on a close examination of documents produced during the discovery process, in providing justification for the removal of MR. Significantly, the actions contemplated by the complex case review had not included any plan to remove MR from her mother and I am equally satisfied that on the date on which MR was removed from her mother's care the Trust had discerned no need to take such action and that the action was prompted solely by the parents' refusal to co-operate with the Trust's legitimate need to find JR so that he could be returned to his placement in England. Moreover, after the police search of the family home had been conducted without positive result, the decision to terminate MR's placement with his mother was not communicated to her and she was left to discover from the school that social workers had removed her child. Cruelly and inexplicably MR did not see her mother for ten days after she had been removed, another very unsatisfactory feature of the matter which remains unexplained. In January 2013 the Trust decided that the child should remain permanently outside the care of AR.
Judicial review proceedings against the Trust
The subsequent course of events
(1) It was admitted that MR had been wrongfully removed from the care of her mother.
(2) No good reason had been advanced by the Trust for the failure to return her to her mother's care.
(3) Nonetheless, due to the passage of time, MR had become very well settled in the family of Mr and Mrs S. Their own son, some years older than MR, and the family dog had become MR's close and affectionate companions. All MR's health and educational needs were well attended to and it was plain that the foster carers were materially better placed than MR's own parents to provide for her wants and needs. MR had not been placed with the S family with a view to adoption but they had from an early stage expressed a willingness to adopt her if such became a possibility. Importantly therefore, MR had been up to that point living a settled and orderly life in a stable and harmonious home away from the upheavals and problems that were unfortunately a constant feature of the lives of AR, BR and their other children.
Significant events since the hearing
"20. I have heard that MR wants to stay where she is; I know that a discharge application would mean an immediate return as there would be no care order. How I could do anything that would cause MR harm or unsettle her or make her unhappy by making an application to discharge her care order?
21. This is breaking my heart as I did everything I could to try to get MR back to my care and I did still hope that there could be a slow return home for her but can't happen now. It is too late. Maybe someday she will be told the truth but I am now left in this awful position. I know that MR has been told all sorts of reasons why she was taken from me and kept away from me but not the truth. I also know that too much time has passed and she wants to remain living with Mr and Mrs S. I was holding out, hoping that despite all this time MR could come home to me but after hearing what she wants and how unsettled a discharge application would make her, I know it would do nothing to help MR and so I can now advise the court that I will not make an application in the future and neither will I support an application made by BR, if he decides to make one.
22. I love MR so much and I hope in the future she will understand the decision that I am now making. I hope she sees this not as me giving up on her but trying to do what is right for her now in 2017 and that is to let MR remain where she is, with Mr and Mrs S.
23. This should not be interpreted as me supporting adoption; I do not support adoption but I believe I should let MR remain living with her foster carers, Mr and Mrs S because of the passage of time and no way do I wish to cause any distress and damage to MR a move home to her family might cause.
24. I want to maintain my relationship with MR and for MR to maintain her relationship with her siblings and family. Therefore I hope that Mr and Mrs S and the Trust will acknowledge this when it comes to taking into account the history of this case (not just my history but their history as well) and how well MR is currently doing with the current level of contact when it comes to making future decisions for MR and in particular her on-going contact with me and her siblings and nieces and nephew.
25. Finally I am still willing to meet with Mr and Mrs S. It may help them if they know that I am not the person that I am portrayed by many and that I love my daughter MR very very much. So much that I agree to leave MR where she is in foster care with them."
Adoption or long-term fostering?
"Picture the scene: there are three ships who regularly sail the public family law seas. Two of them are massive well-known vessels: The Good Ship Welfare and The Good Ship Proportionality. The third is a smaller craft that should travel in their wake, The Ship of Least Intervention. Although all three ships will normally sail in the same direction, depending on the tide of the evidence, it is Good Ship Welfare that is seen by all those involved as the flagship of this small fleet. Whilst on some, if not many voyages, there would often be a friendly wave (no pun intended) from Welfare towards Proportionality, it was the course of Welfare that really mattered and, where the voyage ended at the Port of Adoption, the Navy were normally content provided Welfare got there and was tied up alongside the quay. It did not matter, at least to some, so much whether The Good Ship Proportionality actually made it into the harbour as well. On some voyages, the Ship of Least Intervention would cut across the bows of the others and possibly divert the convoy. This was because those at the helm of Least Intervention were wont to plot an entirely 'linear' course!"
"The outcome for the child, as well as being that which meets her welfare requirements must also be 'necessary' for, in short terms, her 'protection'. In other words it must be 'proportionate' to the need to protect her."
"If it is not necessary to protect a child by removing her permanently in fact and in law from her birth family and grafting her into another family by adoption, it is highly unlikely that it will otherwise be in her best interests to do so."
"I have suggested that the re-statement of the law in Re B was 'timely' because in my view, and from my perspective, we who are involved in delivering justice in family cases may have, from time to time, and in some cases, slipped into the position painted by my earlier verbal sea-scape whereby Proportionality was given the odd wave or acknowledgment during the course of a case but was not always seen as an essential factor to be determined before an adoption order was made as it should have been. At the risk of stretching my metaphor too far, the law is, and this should always have been clear, that for there to have been a successful voyage to the Port of Adoption both vessels, Welfare and Proportionality, must have reached the port and be firmly tied up alongside."