JV (final care and placement order) [2014] EWFC B112 (15 July 2014)

Her Honour Judge Staite:

1 This judgment follows contested public law care proceedings which concern the present and future welfare needs of a young child, J V, who was born on and is now just one year old. His mother is Mrs V (“the mother”) and his father is Mr V (“the father”). Since his birth in June 2013 and following his discharge from hospital J has been in foster care and was made subject to an interim care order in the Family Proceedings court on 11^th June 2013. His parents have seen him frequently for supervised contact three times each week since his reception into foster care and he is a much loved child.

2 J’s paternal grandparents, Mr and Mrs V senior have been involved throughout these care proceedings as relevant members of the extended family who have wished to participate in future arrangements for J’s care if he can remain within the family. At the final hearing, they made clear their position that they were supporting the application by their daughter, Ms O (J’s paternal aunt) to be appointed as J’s special guardian and they urged the court to make this order rather than the final care and placement order sought by Essex County Council (“the local authority”).

3 There is a protracted history to this case which I need to set out in some detail in order to explain the final order(s) which I have resolved to make in this case.

4 The father has four other children in addition to J. He has a son, A born on 27^th May 1999 (now 15 years old) who is the only child of his relationship with Ms B. The father separated from Ms B when A was a baby and although there was some contact after the separation, contact stopped in about 2001. Subsequently the father met and married Mrs H V by whom he had two children, S (born on 15^th September 2001) and S (born on 16^th November 2002).

5 On 20^th February 2003 and while living with Mrs H V and the two children (S and S), the father was arrested in connection with viewing sexually abusive images on children on the internet. The social services began an investigation as there were concerns that the father might pose a potential risk to the young children who were in the home. A written agreement was drawn up between social services and Mrs H V requiring the father to leave the family home and stating that all contact between the father and the children should be supervised. However, after that agreement had been signed, the father admitted that he was continuing to live at home with his wife and children and Mrs H V was adamant that he should remain living at the family home.

6 In the light of Mrs H V’s minimisation of the father’s alleged criminal conduct, care proceedings were instituted with a view to removing the children from her care. The children were placed with an aunt and uncle. However, Mrs H V finally left the father on 1^st August 2003 and on 27^th August 2003 the father was charged with 10 offences of making indecent images of children. Subsequently and in October 2003 the father telephoned the social worker in the case saying that he was “dropping” contact and withdrawing from the care proceedings.

7 On 13^th January 2004 a final report was prepared by the children’s guardian, Ms S in relation to the care proceedings relating to S and S. She described her meetings with the father in the following terms: “From the start of the proceedings, Mr V always seemed more concerned in putting his point of view and protesting his innocence than in the welfare of S and S. As pointed out in the expert’s report, Mr V would be unlikely to prioritise the childrens’ needs over his own given his personality disorder, irrespective of the allegations of his sexual interest in children”.

8 Subsequently the children were returned to Mrs H V under a supervision order and on the basis that she had no contact with the father. The final care plan made no arrangements for the father to resume contact with S and S and he has had no contact with these children during the last 10 years.

9 On 7^th January 2005 the father was convicted of possession of indecent images which ranged from category 1-4 (5 being the highest). He received a 3 year community rehabilitation order with conditions (a) that his name was placed on the Sex Offenders Register for 5 years and (b) that he attend a Sex Offenders Programme. However, the father did not complete the Sex Offenders Programme after he disclosed that he had been sexually abused as a child and the programme was therefore not considered suitable. The conditions of the community rehabilitation order were revoked on 4^th April 2007 when the father was given a 12 month conditional discharge.

10 Subsequently the father met and married Ms L V on 4^th November 2006. In March 2007 he was admitted to hospital with suicidal ideation and given medication to stabilise symptoms of depression and anxiety. In January 2008 the parents notified the local authority that they were expecting a child. A pre-birth assessment was undertaken which concluded that there were risks in relation to the father’s mental health with a significant number of self-harming incidents and suicide attempts. There had been a range of diagnoses in relation to the father’s mental health including unstable personality disorder, schizophrenia and mild bipolar disorder. The professionals considered, however, that if the mother separated and remained apart from the father, she could be considered as a parent who would be able to meet the needs of her child. In June 2008, the pre-birth assessment concluded that the father was “a high risk of re-offending and that a child would be at significant harm in the future”.

11 Following T’s birth on 7^th June 2008, he was accommodated in local authority foster care and made subject to an interim care order on 23^rd June 2008. On 2^nd July 2008 Mr and Mrs W (the maternal grandparents) put themselves forward to care for T on a long term basis. Following a positive viability and kinship assessment, T was placed in their care on 12^th August 2008. The parents were initially very supportive of T’s placement with the maternal grandparents but within a month of his placement the parents withdrew their support and asked for their contact (which was taking place at the home of the grandparents) to take place at a contact centre supervised by the local authority. The parents appeared to be aggrieved that the maternal grandmother was enforcing the boundaries around their contact and notifying the local authority when the parents failed to attend for contact. The mother disclosed to the social worker that they had believed that the placement of T in the grandmother’s home would allow the parents to have “complete control” of T and the parents were not happy with the restrictions on their contact which the grandmother imposed in compliance with a written agreement made between her and the local authority.

12 Subsequently the mother isolated herself from her own family and expressed very negative views about her mother, Mrs W. On 23^rd October 2008 the parents wrote to the local authority stating that they wished T to be placed for adoption outside the family and that they would no longer be attending for contact with him. In December 2008 the father advised the social worker that if she did not telephone him urgently he was going to remove T from the grandmother’s care as the local authority had placed him in an unsafe environment. In March 2009 the father made it clear that even if T remained in the home of his grandparents, he would not give up his parental responsibility and threatened to “stir things up” in relation to the placement. Subsequently the local authority confirmed the final care plan for the appointment of Mr and Mrs W as special guardians for T and on 6^th May 2009 the court made the order sought by the local authority in the face of opposition from both parents but in their absence from court during the hearing. The court also approved the care plan which denied the parents any direct contact to T and provided for reciprocal indirect letter box contact twice a year.

13 In July 2013 Mrs W’s husband, B, was killed in a car accident in which T was also involved. In the course of a viability assessment following J’s birth, Mrs W disclosed that she had had to break off all contact with her daughter (the mother) and had changed her address in August 2012 due to continual threats from the parents. She described the father as having “made her life hell”. Subsequently, she had made an application for anonymous registration on the electoral roll due to fears that the father would trace her and this had been granted (with the full support of the local authority) for a maximum period of 5 years. Mrs W advised the social worker that she was very concerned that the parents would obtain her address and contact number following the care proceedings involving J. She also said that she had needed to obtain a special guardianship order in relation to T as if a residence order had been made (sharing parental responsibility with the parents) the father would never have left her alone. She also stated that the father had previously threatened to bomb her house and had persistently tried to find ways to make contact with her and T. Mrs W advised the local authority that if J were placed with adoptive parents she would promote contact between J and T but that if J was placed with any members of the paternal family, including Ms O, she would be unable to promote contact “due to her concerns regarding the paternal family’s loyalties to the father” which included her belief that information would be passed on to the father about her whereabouts.

14 Chronology relating to J: On 1^st March 2013 the mother disclosed to her doctor that she was pregnant but did not advise him that T was no longer living with them or that the family had had any previous involvement with social care. Combined assessments were completed due to the risks identified in relation to the previous siblings which necessarily included the father’s conviction in 2004 and the diagnosis of a personality disorder with severe fluctuations in his mental health. These risks were identified in bullet point form in a statement of the first social worker, Mr W dated 10^th June 2013 (C8) and included the mother’s lack of insight into the risk posed by the father, the minimisation of the risk by both parents and the father’s inability or unwillingness to address his own sexual abuse as a child. According to the statement, any attempt to discuss matters with the father led to him becoming aggressive and making threats towards professionals with the father making it clear that he would “fight for his child”. The professionals’ view of the mother was that she was unable to prioritise the needs of her child above her relationship with the father. In Mr W’s opinion, it was concerning that despite the level of risk identified and the influence which this had on T being removed from their care, the parents had not received any form of support to reduce the ongoing concerns which therefore placed J at risk of significant harm. In his opinion, they continued to present “with the same mind set and thinking as they did at the conclusion of T’s care proceedings”.

15 J was born on 9^th June 2013 and the local authority commenced care proceedings on 10^th June 2013 seeking an interim care order which was opposed by both parents. The parents contended that there was no immediate risk to justify J’s removal from them. However, the Lay Justices concluded –and were supported in this respect by the guardian –that the risks which had been identified in 2008 (and which included an assessment by the Lucy Faithful Foundation dated 16^th October 2008) which included grave concerns for T and any other children if they lived with the parents had not been addressed by them. The Lay Justices therefore concluded that J’s welfare required him to be separated from the parents.

16 Subsequently and on 15^th July 2013 and after the case had been transferred to the Chelmsford Family Court, I granted leave for the parties to jointly instruct Mr F, independent social work consultant to report on the mother and father and in particular, to consider whether or not the father posed a risk to J and whether, if such risk existed, the mother was able to identify the risks and protect J. The parents made it clear at that hearing that they did not accept that threshold was met for the making of final orders. In her statement prepared for that hearing, the mother said this: “I am upset by the fact that J was taken from our care on the assumption that M was a risk. I do not feel we have had an opportunity to prove our ability to care for J. We want to offer J a loving and stable family and be devoted parents. M and I both only wish J to have the best and I believe that it is best for him to be with his parents as no one else could love him more”.

17 In his statement of the same date, the father said that although he had a history of mental health concerns, his mental health had “now been stable for 3 years” and that disorders in men usually stabilised “with symptoms fading during their 30s”. He said that this contrasted with earlier instability in his mental health when incidents would occur monthly. He desperately wanted an outcome whereby he and the mother could care for J.

18 On 24^th September 2013 Mr F submitted his report following his assessment of the risk posed by the father. In his detailed report (which followed extensive recorded interviews with each of the parents) Mr F concluded that the risk that the father would abuse a child sexually, physically or that he would consciously abuse a child emotionally was “small” and “not significant”. He also concluded that the mother had the “cognitive ability both to understand the risk and to protect from foreseeable risk” but that she had an emotional dependence on the father which had the potential to interfere with that ability on the basis that she was unlikely to see risks which she did not wish to see. He commented that taking the Lucy Faithful Foundation assessment and his own assessment together, the evidence was that overall the parents had a “good enough” ability in the area of understanding sexual abuse risks for the children but that the “more doubtful issues” appeared to be the father’s mental health and the couple’s ability to prioritise J in caring for him. Mr F noted that if the court were to conclude that the parents had behaved dishonestly in the past, this would undermine his conclusions “as the need for honest and openness had been carefully explained to them”. He concluded that “the most unpredictable risk factor for J’s wellbeing was likely to be his father’s mental health and the mother’s ability to prioritise his care should Mr V become seriously unstable again” (E92).

19 On 15^th October 2013 (following receipt of Mr F’s report) I granted the local authority’s application for a psychiatric assessment of both parents to be undertaken by Dr McL a consultant psychiatrist. At the time of the assessment the father has been discharged from hospital following an admission between 24^th September 2013 and 2^nd October 2013 when he had been expressing thoughts about ending his life if a decision were to be made by the social services that J was to be placed for adoption. He said specifically that he would end his life if this happened. Previously, the father had been admitted to hospital in August 2013 following an overdose of diazepam. When asked by Dr McL for the reason for this admission the father said that he had thought about ending his life so that the mother could have a life with their child. He told Dr McL that the outcome of the proceedings in 2008 involving T had been “unjust” with the professional reports containing lies. Dr McL noted that the father’s medical case notes provided “a very different view of his functioning over recent years to that which he (the father) had provided at interview”. Specifically the father had failed to identify 23 recorded incidents between December 2002 and January 2008 when the police had been called due to the father attempting to self-harm of commit suicide. Nor had he mentioned that in January 2008 he had been arrested for gathering information to make a bomb and had threatened to kill himself and other professionals. Dr McL identified the lack of openness in the father’s statement dated 11^th July 2013 when he had referred, erroneously, to his mental health being stable for three years. At paragraphs 14.1-14.27 of his report, Dr McL documented the extensive and long standing mental history of the father and the hospital admissions between September 2006 and August 2013. These included an attempt to hang himself by tying a noose around his neck and holding a knife against his throat (February 2007), taking 28 zopiclone tablets after he had heard voices mocking him and telling him his family would disown him (September 2007), an attempt to hang himself (February 2009) and shutting himself in the bathroom with a glass of strong bleach (August 2011). After his admission between 24^th September 2013 and 2^nd October 2013, an outpatient assessment on 7^th October 2013 recorded that since his discharge from the ward there had been no changes in his mood, that he was very angry and upset and had the same suicidal ideations that he had had before his admission to the ward on 24^th September 2013.

20 Dr McL arrived at the following conclusions in relation to the father’s mental health: “the account which he gave me at interview was that things had been stable for him much longer, that the overdose of diazepam in the summer of 2013 had not been an intentional one and that his thoughts of ending his life had disappeared, as it were, shortly after the outpatient treatment assessment in October 2013. I think he was trying to put a brave face on things and present himself in the most positive manner because clearly the medical case notes suggest otherwise. Mr V has a severe personality disorder , this is well documented in the case notes as an emotionally unstable borderline type of personality disorder and her has had recent and significant difficulties similar, although not as severe or sustained as those which had been apparent in, for example, 2007. Mr V is not receiving treatment for his underlying personality disorder, he is simply being given medication to bring down his overall level of arousal and whilst this seems to have been helpful for him, it has not addressed the underlying personality disorder.

21 Dr McL also described the mother as having a “marked dependency” on the father and providing him with support “through many years of the father’s challenging behaviours”.

22 Dr McL’s final conclusion was summarised as follows: “Mr and Mrs V have a co-dependent relationship, each depends very much on the other for help and support and this is not going to change. Mr V’s personality disorder is so severe that he would be unable to care for a child because of the marked risk of emotional harm. He is unable to deal with his own emotional needs and by extension would be unable to provide an emotionally nurturing environment for a child. Mrs V has an emotional dependency on Mr V and she is unable to make up for his psychological difficulties. As such neither individual is able to parent a child…in terms of the hierarchy of difficulties, his personality disorder and the impact on the psychological development of a child is much more significant than the possibility of sexual harm which was addressed by Mr F”.

23 Dr McL concluded that the father needed to have dialectic behavioural therapy or similar treatment for at least one year but that this would be most challenging for him as the father minimised his difficulties to the extent that he was almost unrecognisable as the man portrayed in the medical case notes “…which did not bode well for him recognising that he needs to engage in this form of treatment”.

24 When asked to clarify aspects of his initial report, Dr McL produced an addendum report in which he clarified his view of the mother’s inability to compensate for the father’s psychological difficulties in terms of parenting. He said this: “taking care of a child’s needs during relatively short periods of contact is a much less demanding task than caring for them throughout their minority and it is this which concerns me. Mr V’s personality disorder is not treatable by the intervention and support of Mrs V although of course her support is welcomed by him, As Mrs V is unable to stop the deterioration in Mr V’s level of symptoms, she is unable to moderate the impact which his personality would have on the psychological development of a child who was in their care”

25 At the date of the hearing on 15^th October 2013 (and after the filing of Mr F’s report) the court directed a review of the previously negative viability assessments of Mr and Mrs V (the paternal grandparents) and Ms O (the paternal aunt) in the light of the risk assessment prepared by Mr F. The case was then listed for final hearing between 21^st-25^th January 2014. The parents were at this date reserving their position in relation to threshold pending receipt of all the assessments. The XXXX Family Centre was required to carry out a parenting assessment of the parents in advance of the final hearing.

26 The Family Centre assessment began on 25^th November 2013 and was completed on 13^th December 2013. The assessors observed the parents for 2 full days. The mother demonstrated that she was able to give appropriate emotional warmth to J and the assessors noted that when the father interacted with J, he spoke softly to him and made positive comments towards him. However, during the third observation period on 13^th December 2013, the assessors saw a change in the father’s presentation. The father asked how long the interview would take and complained that they had things to sort out as they were being evicted from their home. The father appeared agitated and “stared intently” while speaking to the assessors in a manner described by them as threatening. When the assessors spoke to the mother alone, she said that she and the father were finding the assessment process stressful and that things were “falling apart at home”. When the mother was asked about the extent to which the father’s personality disorder might impact on J particularly if there were difficulties again in the future, she “completely minimised” the father’s previous issues and said that she would gently say to the father that he needed to take himself off and she would then call his parents for support. After the interview with the mother, she then went to speak with the father about the questions which had been posed by the assessors. The father then came into the interview room presenting in such an agitated and aggressive manner that the assessors could not continue with the interview.

27 In their conclusions, the assessors noted that the mother was “completely isolated” from her own family since being in a relationship with the father and that this, in their opinion, made her more vulnerable in that she was dependent for support from the father and his parents. The recommendation was that it would not be in the best interests of J for him to be placed in the care of his parents on the basis that they would not be able consistently to meet the developmental and emotional needs of their son. The father was unable to care for his own emotional needs and the mother was, as a result of her emotional dependency on the father, unlikely to see any risks which she did not want to see.

28 The review of Mr and Mrs V senior as potential carers for J was completed by the social worker in the case (Ms M) on 20^th November 2013. She recognised (following Mr F’s report) that the grandparents ability to protect J from any sexual risk had to be looked at in the context of their son, the father, posing a “small risk” and that the review needed to be focused on the extent to which the paternal grandparents would be able to protect J from the risk of harm caused by the father’s severe personality disorder. In her opinion, the paternal grandparents, like the parents “presented a very optimistic picture of the stability of M’s medical notes”. It was clear that the grandparents offered a high level of practical and emotional support to the parents (the parents lived in very close proximity to them) and she was not confident that they would be able to cut off contact or even limit the contact which they had with the father and mother if J was placed in their care even if this was made a requirement in the order to ensure that J was kept safe. Ms M felt that the grandparents’ loyalty as well as their ability to protect would always be towards their son “thus putting J at risk of emotional harm as a result of M’s mental health needs”. They did not see any need to distance themselves from the parents if J were placed in their care and stated that they would allow regular contact to the parents to take place in their home. In the opinion of Ms M, placing J so close to such a close knit family in circumstances where Dr McL had been clear that any child living with the parents would be severely emotionally harmed, did not remove J from that emotional harm. In those circumstances, the local authority could not recommend J being placed with the paternal grandparents.

29 On 23^rd December 2013 Ms J (an independent social worker) submitted a parenting/kinship report in respect of Ms O with particular reference to the paternal aunt’s understanding of the risks posed by the parents and her view as to how J could be protected from those risks. She referred to Ms O as a divorcee who has the full-time care of her daughter, S (now 15 years old) and another child and friend of her daughter’s, J who she cared for under a private fostering arrangement. Ms J noted a close and loving mother-daughter relationship between Ms O and S (“easy warmth with spontaneous banter”) and commented that J was really happy living with Ms O after her estrangement from her own family.

30 Ms J concluded that Ms O was a hard- working and loving mother who would do anything to protect her daughter from anything which she perceived to be threatening or harmful. In relation to understanding the risks which her brother posed, Ms O told Ms J that she had responded with disbelief to the conviction of her brother and having grown up with him she could not have conceived that he could have been capable of harming her own daughter. She vaguely remembered that M had been sexually abused by a bus driver in his teenage years. She said that while she understood that he had mental health problems, she would find it hard “to completely cut him out of her life”. However, she made it clear that if she cared for J, her brother would not be afforded any access outside the instructions of the court. Ms O told Ms J that she would protect J with her life and said told Ms J that “we cannot lose another piece of our family because of M”. Ms J referred to Ms O’s flippant and often naive approach to the negative aspects of people’s failings (“seeing the world through an optimistic lens”) but she commented that if anyone, including her brother were to threaten the innocence or safety of those she held dear, she would react with extreme emotional and possibly physical response to protect her family. In the conclusion of her report, Ms J said this: “I acknowledge that the family may well have presented themselves as “minimising the risks” posed by Mr V. I do not accept that the family have internally minimised M V’s offences. I believe that they have chosen to some degree not to externalise and verbalise their feelings to professionals as a way of attempting to erase the stigma of being associated and judged as a family with the label these types of offences can carry. In particular, I believe that Ms O has in some way distanced herself from her brother’s offences in order to protect her daughter, S, not necessarily from knowing of the offences but from it having always been there in Ms O’s mind as part of their family history and one that she would rather forget. She herself has never reported being intimately exposed (either personally or via her daughter) to this type of offending, It is worth remembering at this point that she was protected by her own parents from the impact and details of her brother’s abuse”. Ms J suggested that if the risk posed to J by his parents was “minimal” then Ms O would be able to provide a “protective, warm, supportive and loving environment ending the contact appropriately if she became aware of any risks to J”.

31 Following receipt of this report and in advance of the hearing which was scheduled to begin on 21^st January 2014, the guardian was proactive in recommending that there should be a special guardian’s assessment of Ms O (undertaken if possible by Ms J) to secure J’s permanency in the event that his parents were unable to care for him. On 15^th January 2014 I ordered that Ms J should carry out a special guardianship assessment and that there should be a revised listing of the final hearing and that the hearing in January 2014 should be used to determine whether or not the threshold criteria had been met in the light of the evidence of Mr F and Dr McL.

32 On 21^st January 2014 Mr F gave evidence at court in support of his conclusion that the father’s risk of sexual harm to J was “small”. His opinion was reinforced by the father’s lack of interest in indecent images following his arrest and conviction and his continued relationship with his wife which had not been tainted by any recorded unusual or inappropriate behaviour towards her or towards any children with whom he had been in contact. Mr F was cross-examined at some length but his professional opinion remained the same and to that end contradicted the earlier reports in 2008 (by Dr I and the Lucy Faithful Foundation) that the father would pose a “serious risk of sexual harm” to any child placed in his care. On the second day of the threshold hearing and after Mr F had completed his evidence, the local authority submitted and the parents conceded that while the threshold had been met it was to be confined to the following findings: (1) Mr V has a history of mental health concerns. He has been diagnosed with a personality disorder. There is a real possibility that any child in his care would suffer significant emotional harm as a result of the impact on his mental health (2) Dr McL, a Consultant in Forensic Psychiatry in his assessment of Mrs V concludes that she does not have a mental health diagnosis but is unwilling to separate from Mr V and concentrate on the needs of J.

33 On 24^th January 2014 (the final day of the threshold hearing) I made an order that Ms H (an independent social worker) should be appointed to conduct the special guardian assessment of Ms O on the grounds that Ms J was no longer able to conduct the assessment. Ms H’s report was dated 7^th March 2014 and was negative in terms of Ms O’s ability to care for J on a long term basis. She concluded that Ms O lacked insight and struggled to understand J’s need to attach to his primary carer and had maintained to Ms H that the birth parents would be able to support J’s emotional development by having ongoing contact to him. Ms H described Ms O’s stated position that she would not proceed with her application if contact between J and his parents was terminated by the court as “deeply concerning” on the basis that Ms O appeared to place more emphasis on the parents’ ability to see J than J’s need for stability and protection. She commented specifically on the mother’s clearly expressed opinion that Ms O was not to assume the role of mother to J. She felt that Ms O wanted to care for J to facilitate the parents’ ability to maintain contact and from a standpoint of loyalty and devotion to her family. Ms H felt that Ms O was struggling with the thought of becoming J’s carer and was under pressure to accept a role which was, on any view, very challenging.

34 Ms H was also concerned about possible collusion within the family and referred to a comment made to her by the father on 26^th February 2014 when he advised Ms H that his sister, L, had phoned him and the mother immediately after the visit from Ms H and had relayed to them her discussions with Ms O. The father had subsequently said to Ms H that they were all in this as a family “…doing this together and standing tall against you lot”. Although Ms H had originally understood from Ms O that she had had little contact with the father (Ms O lives in XXXX and her brother in XXXX ) she learned that in fact they had frequent contact and had a much closer relationship than she had been led to believe. In those circumstances, Ms H questioned how Ms O would “manage” the father bearing in mind the reported incidents of aggressive behaviour on his part and problems which regulating his behaviour could pose in terms of risk to J. She believed that it would be very difficult for Ms O to change her mindset and distance herself from the mother and father.

35 Ms H sensed that Ms O wanted to care for J on behalf of the parents and in order to facilitate their ability to maintain contact rather than making a personal commitment towards J. Ms O had never had any personal experience of her brother becoming aggressive and threatening towards her. It was notable, however, that when Ms H had wanted to speak to the father about gathering information for the assessment of the father, he had become extremely hostile and aggressive towards her which had surprised her bearing in mind that he apparently wanted the placement with his sister to succeed. The father was unable to contain his feelings and in Ms H’s view, the father’s mental health issues were unpredictable and could pose a risk to the stability of J’s placement with his sister which Ms O was not prepared to consider.

36 Ms O did not believe that her brother was as bad as Dr McL had stated and said that when her brother was unwell he “shut himself away”. Ms O advised Ms H that there had been a period of at least 3 years when she had not spoken to her brother following an argument over a car and she had given this as an example of her ability to manage the father. In Ms H’s professional opinion: “during the process of assessment I have formed the view that there is some sort of arrangement between family members where L cares for J in order to keep him in the family and so the parents are able to maintain regular contact with him. It is not hard to imagine how difficult it might be in the future for L to manage the parents’ expectations. I get the strong impression that L’s application is more about caring for the parents rather than prioritising J. When L shared with M the content of our meetings, M responded angrily towards me and Mrs V stated “we’re all in this together and will decide as a family whether to meet you or not” [E288]

37 On 3^rd March 2014 (and prior to the filing of Ms H’s report) the father was admitted to hospital voluntarily following an overdose. He remained under supervision until his discharge on 31^st March 2014. During this period, he complained of homicidal thoughts (thoughts of decapitating his mother, social workers and the judge) and complained of ongoing problems with social services in relation to contact to J. The week before his admission the mother had contacted the emergency duty service with concerns about the father’s mental state which included suicidal thoughts. The mother reported that the father was angry with social services, his mother and the judge, all of whom he felt were responsible for taking his children into care and denying him contact to them. She reported that he had made two suicide attempts by overdose during the week before his admission. The father advised the doctor on admission that he did not have a good relationship with his mother (whom he believed was one of the people responsible for his children being put in care). He also referred to a sister whom he had not spoken to for over 9 years after a disagreement over money and cars. He described himself as “intelligent with an evil twist”.

38 During a conversation which took place between the mother and the social worker (Ms M) on 12^th March 2014 (and after the social work team requested a letter from his treating psychiatrist about his current state of mental health before any rescheduling of contact to J could take place), the father could be heard in the background “literally screaming at the top of his voice” about the unfairness of the situation. The mother gave the social workers details of the ward where the father was receiving treatment. Subsequently and on 17^th March 2014 the social worker received a very calm but demanding voicemail from the father stating that he had a letter from a psychiatrist proving that he could not travel for contact and that contact should take place in . After the social worker followed up the report from the psychiatrist, the father requested that the hospital ward should share no information with her due to “trust issues”. Mr M commented in her final statement that the father’s presentation was very concerning and that it was often impossible to have any conversation without him becoming increasingly agitated, and aggressive towards her.

39 On the hospital discharge document dated 2^nd April 2014, reference was made to the father having been quite aggressive and agitated on his admission to hospital with displays of anger towards staff which had required police intervention. He had reported mood swings and had said that he did not care about the potential consequences of his actions. He had believed that staff were deliberately targeting him and victimising him particularly at night. At a ward review on 26^th March 2014, the father had reported feeling unwell with his thoughts “blocked”. The mother reported that the father’s mood was variable and that he had told her that he had been hearing voices “telling him to do things”.

40 On 9^th April 2014 the father was re-admitted to XXXX hospital as an informal patient. He disclosed that he had taken an overdose 2 days prior to his admission in response to the final court hearing “leading him to a sense of hopelessness, self-neglect and low mood”. He had learned from his barrister that there was a 0% chance of getting J back and he had been advised to support Ms O’s application to be appointed as J’s special guardian.

41 On 11^th April 2014, the father visited his parents and had had a big row with his father who had said something to him which was, in his opinion, “well below the belt”. On the same day he advised the treating clinician that he and his wife would rather J went to a family member than to a stranger and that a weight had been lifted not that a line had been drawn under the case. He was formally discharged from hospital with prescribed medication and was noted to be on the waiting list for the H Project in .

42 In her final analysis of the hearing which commenced on 22^nd April 2014 but could not be concluded until 27^th June 2014 owing to the ill health of various professional witnesses, the guardian, Mrs H, supported the local authority’s application for a final care order and placement order. She understood at the date of preparing her final report that the parents were no longer putting themselves forward to care for J and expressed the opinion that if this proved to be the case, this was evidence of the parents’ ability to place the needs of J over their own.

43 On 23^rd April 2014 the court received a written signed document from the parents in which they expressed their support for Ms O’s application to care for J as his special guardian and their understanding that if this occurred then contact “initially” would be reduced to enable J to settle with L and form attachments. Thereafter and once J had settled and the father’s health had stabilised, they would wish to review contact in accordance with J’s needs. They strongly opposed any plan for J’s adoption. They also pointed out that they would not undermine a placement of J within the family and that they had not done this since he had been in foster care even though they had known the address of the foster carers.

44 In relation to the paternal aunt (Ms O) the guardian found that she presented as rather “immature and giggly” and showed a limited seriousness of the issues in the case during their discussions. When the guardian had visited Ms O on 18^th February 2014, Ms O had appeared to discount the observations and analysis of Dr McL in his report and was advised by the guardian to fully read the report as Ms O’s comments indicated that she did not recognise the seriousness of the issues which had been raised within the report. When Ms O was subsequently asked by the guardian for her comments, she maintained that she had not read all of the report and went on to say that at contact the parents were “brilliant” with J. She also confirmed that if the court ordered no contact to take place between J and his parents, she would not be in a position to care for him. Furthermore the guardian felt that a comment made by Ms O in her final statement: “(Is there a family that doesn’t have mental illness or depression nowadays?”) represented a minimisation of the risks which the father posed rather than addressing the real concerns about the father’s mental health.

45 Having read the assessment prepared by Ms H, the guardian felt that Ms O had failed to fully appreciate the concerns regarding the parents and she shared Ms H’s opinion that Ms O would “struggle to maintain boundaries……despite three assessments and an interview with the guardian, the depth of her insight remained limited”. The guardian could not, therefore, support Ms O’s application for J to be placed in her care.

46 In interview with the grandparents, the guardian found that while they did understand the impact of the father’s conviction on his inability to care for children, they appeared to minimise the father’s mental health issues. She felt that the grandparents wanted to do what was best for their son and his wife. She said that after a discussion with them when she had asked them to think about what caring for J would mean for them, they had contacted her by telephone the following day to say that they had given careful thought to their respective ages and current circumstances and had decided to withdraw from seeking a further assessment and wished to support the application made by their daughter, Ms O to care for J. The guardian felt that while it was understandable that they had changed their mind again (at the time of preparing her analysis they had been seeking a further assessment) she felt that they had done this as a commitment to the mother and father rather than for themselves.

47 In her opinion, the grandparents were unable to address or to understand the “overwhelming concern” of the professionals that the family did not appreciate the risks to J of being placed in the care of the extended family particularly where the father had had suicidal thoughts and disturbing thoughts about his own mother’s complicity within the legal proceedings. The guardian felt that J could not be placed safely with a member of the extended family. More specifically and in relation to Ms O’s application to be appointed as J’s special guardian, she commented that “there has to be a high degree of confidence with the making of such an order that those caring fully appreciate why placement is necessary…having given considerable thought to the extended family including supporting a further assessment, I have to conclude that the motivation to care is to support the parents first and J second and that J’s needs could not be safeguarded within a family placement”

48 In her oral evidence given at the conclusion of these contested proceedings, the guardian described Ms O’s motivation as very genuine. However although her application came from the best of motives, she felt that Ms O was somewhat “blinkered” in outlook. In her opinion, Ms O wanted to see the situation in the best possible light and she could not see beneath the surface and could not identify the potential risks which would be likely to arise if J were placed with her. She could not feel confident of Ms O’s ability to safeguard J given that the parents desperately wanted to be involved fully in J’s life. At a very basic level she thought that Ms O would find it very hard to deal with the mother’s distress if and when J started to refer to her as “mum” and, in her opinion, this would be a likely catalyst for future confrontation. The guardian noted that Ms O’s way of dealing with confrontation (eg her stand-off with her brother for 3-4 years after an argument) was to walk away from the problem and she was troubled that if the father turned up at her house to see J she would be unable to deal with the situation and would find it very difficult indeed to deal with him if (as she thought likely) he was not prepared to walk away.

49 The guardian had first-hand experience of the father’s unpredictable behaviour during an unexpected visit which she had made to observe contact between J and his parents. The father had become so agitated by her presence at contact that she had left and rearranged another visit on notice to the parents. The father had not been unwell at the time but had behaved as he had seen fit. The guardian also said that Ms O did not understand the nuances of the risks presented by the father and by the mother nor did she appreciate the extent to which the parents’ relationship was entrenched. Ms H said in evidence that if Ms O was unable to identify any problems and unable to understand what she was protecting and safeguarding J against, the safeguarding concerns inevitably remained. In her opinion, Ms O’s giggling was a means of avoiding dealing with the serious responses which were otherwise to be expected of her bearing in mind the significance of the issues raised in the case. Ms O was not immature as a person but, in the opinion of the guardian, had an immature understanding of the concerns and issues affecting her brother.

50 Findings: It has been necessary, in the body of this judgment, to deal with the evidence in some detail because in my judgment the background of the case is very relevant to my decision as to the right order which should now be made to safeguard J’s future welfare. I am very aware that J is a child who is much loved not only by his parents but by the extended members of the paternal family who should be given credit for their active involvement and participation within these public law proceedings. The paternal family (in contrast to the mother’s family) is a tight knit family and they are united in their wish that J should remain within the family and not be placed outside the family for adoption. The grandparents, in particular, have consistently supported the parents at a financial, practical and emotional level and are to be commended for their unselfish behaviour towards the parents. Moreover, they have appreciated the parents’ incapacity, at the present time, to care for J.

51 I am entirely satisfied that the current position of grandparents (one of supporting their daughter’s application to care for J) was not a decision which was taken lightly but was made (as I find) having regard to their respective ages and from a justifiable perspective that they could better contribute towards J’s future welfare if they assumed a supportive role rather than assuming the role of primary carers. I think that they were right to adopt this position. Whatever the decision of the court, they will continue to have the ongoing task of managing many aspects of their own son’s needs and they will continue with this task even if (as is likely from the historic evidence) their unconditional love for him is often met with an uncertain response particularly at times when there is a relapse in the father’s mental health.

52 I am equally satisfied, as the guardian said in her oral evidence, that Ms O’s application to care for J is genuinely motivated and stems from a real commitment to keep J at the heart of the family. Both she and the grandparents yearn for there to be more children within the family and it has clearly been a source of real sadness that the paternal family members have had no contact with the father’s children by his previous relationships and no enduring contact with T.

53 I start from the premise that J should remain within his family and that, if at all possible, I should approve the application by his paternal aunt to care for him. J is (I repeat) a much loved son, grandson and nephew. In those circumstances, there must be a very significant body of evidence pointing in a different direction if I am to conclude that it is in his best interests to be removed from his family and placed for adoption. He is the child of his birth parents and his identity is inevitably shaped by the knowledge of his birth family and their love for him. A court must proceed with extreme caution before determining that a placement for adoption with strangers is a better long term welfare option for a child when there are family members who have come forward to care for him and are genuine in their wish to give him the best possible upbringing within the family.

54 Recent case law reminds judges who are the decision makers in these very difficult cases that a child should only be removed from his or her family where the court finds, on the evidence, that this is the only possible option for a child on welfare grounds and where, using judicial dicta “nothing else will do”. The court is required to balance all the evidence including the positives and negatives of the competing orders which are sought against the yardstick that a child should only be placed for adoption when the alternative option of the child remaining within the family is inconsistent with the welfare principles set out in the welfare checklist in s1 of the Children Act 1989. Moreover, the court, in scrutinising a final care plan where the local authority seeks to place a child for adoption, must also fully take into account the statutory welfare checklist in the Adoption and Children Act 2002 with particular regard to the fact that the paramount consideration of the court in that Act is the child’s welfare “throughout his life” with the need for careful scrutiny being given of the effect on the child of ceasing to be a member of his original family if he is adopted. In making a decison of such significance, the court needs to conduct a thorough review of all the evidence in the case –on a holistic basis –and is required to cross-check the relevant welfare considerations in both statutes – before arriving at a conclusion which best meets the long term welfare of the child.

55 In this case, and having regard to the undisputed and significant evidence concerning the father’s mental health, I am bound to consider (and the welfare checklists in both statutes specifically require me to do so) any potential risk of harm to J from his placement with a family member particularly, in this case, a family member with whom the father has and will continue to have regular contact. No one is suggesting that at a practical and emotional level Ms O could not provide anything other than entirely appropriate practical care for J but the more subtle and important point is whether he would be at risk of harm in her care as a result of her continued relationship her brother and whether, as J’s primary carer she would be able to manage the expectations of her brother and his wife in terms of protecting J from any risk of harm. Knowing what I do about the parents and from all that is documented in the case, I am satisfied that whatever document these parents were prepared to sign on the first day of the final hearing, they have no intention of relinquishing to Ms O their role as J’s parents. Indeed, I am entirely satisfied that they have supported her application only because this is the only hope for them of keeping J within the family. In this respect it is important to note that Ms O respects the parents’ views and reiterated in her evidence that she would be unable to offer J a home if the court directed that the parents should have no contact to him. By openly making her position clear on this issue, I am satisfied that Ms O has also made it clear to the parents during the course of these proceedings that they would be actively involved in J’s upbringing were she to care for him and that she could not therefore take the responsibility (nor would she think it appropriate) for ensuring the parents’ compliance with a court order which terminated direct contact between them and J.

56 Having heard evidence over several days, I have concluded that these proceedings have had a major unifying impact upon this family who have stood together in an endeavour prevent J’s removal from his birth family. Although this objective is entirely understandable at a human level, I am not convinced that it reflects the complexities and nuances of the case of this particular case. In my judgment, the strength of the family unity has resulted in a degree of naivity and a somewhat blinkered approach on the part of the extended family in relation to the problems they would face were J to be placed in Ms O’s care and (as I find) a lack of insight about how events in the historic and more recent past involving the father’s unpredictable and disturbed behaviour, have the potential to jeopardise J’s safety in the home of his aunt.

57 In my judgment, the grandparents and Ms O have put a brave face on their assessment of the very serious personality disorder from which the father suffers, a disorder which clearly distorts his capacity for rational thinking when he is in a state of relapse. His mental disorder has led him to behave in an aggressive, bizarre and unpredictable way on numerous occasions throughout his adult life. In her recent meeting with the guardian, it was clear that Ms O had not addressed (and had not wanted to address) the very detailed medical evidence which was contained in Dr McL’s report and the impact which this had had on his family life and relationships within the family. Ms O’s reaction was to assume a positive attitude towards her brother (with whom she has a close relationship) and to assume that he would never behave in the aggressive and uncontrolled way which he has chosen to behave towards professionals during these proceedings and towards those who have opposed his wishes including, very relevantly, his former mother-in-law, and sole carer of his son, T.

58 In my judgment, Ms O’s failure to grasp the association between her brother’s hostility when roused or unwell (and lack of any thought for the consequences of his actions when in this state) and the impact of this behaviour upon her care of J, is most troubling. There was no evidence before the court of her ability to deal with or to manage her brother (other than the evidence that she had avoided confrontation with him for an extended period of time after an argument) and I agree with the professionals that she had no insight into -and refused to contemplate- the risks which her brother and the mother would be likely to pose when demanding to see their son. She was (as I find) quite unable to articulate any strategy to safeguard and protect J if and when she became embroiled in a conflict with the parents because she was quite clear that she did not think it would happen. In the end I concluded that Ms O had chosen not to take on board the prospect of conflict in the future between her and J’s parents because this was inimical to her optimistic nature and was outside her zone of contemplation. However, in my judgment, by failing to recognise and to address this possibility, Ms O did not give me confidence that she could or would be able to protect J in the future from the risk of harm occurring as a result of the parents’ behaviour which I have concluded from the history of this case to be an identifiable risk of harm to this young child.

59 I am satisfied from the evidence in the case that the mother and the father hope that within the foreseeable future, they will be in a position to care for J in their home. Morevoer, looking at the various assessments of Ms O and having heard her evidence, I believe that she perceives herself as assuming more of a caretaking role on behalf of the parents for the foreseeable future than someone entrusted with enhanced parental responsibility for J during his minority. Although I do not doubt the genuineness of her application, I am satisfied that she has a significant commitment to the parents (and to her own parents) and that, at a certain level, she supports the parents’ sense of injustice that J cannot live with them. Her personality -and her wish for a quiet life - is such that I believe she would not discourage the parents from being actively involved in J’s life and would (as I find) be prepared to accede to their wishes to see J knowing that this would have the benefit of placating the father (and keeping his health on a more even keel) while ensuring that the mother continued to support the placement. There is no evidence that Ms O has the strength of character to stand up to her brother and I was struck by her inability to understand or to appreciate (at any level) the way in which the maternal grandmother has had to protect herself and T from the unpredictable and threatening behaviour of the father when he could not get what he wanted and particularly when Mrs W had refused to let the parents see T whenever they wanted.

60 The maternal grandmother lost all support from the parents when she did not accede to their wishes and she no longer has any direct contact with them. Ms O’s inability to understand the complexity of the extended family dynamics and how she might be subjected to the same treatment by the parents if she did not do their bidding, is, I have to say, one of the most significant feature of the evidence in this case. Ms O would, I am sure, do her best to lay down markers and guidelines to protect J in a general sense but I’m afraid that I have no confidence that she would have the strength –nor necessarily the inclination -to challenge the parents if they wanted to break agreements and court orders. I am satisfied that, in the short and longer term, there would be very real risks for J if he were to live with Ms O caused (a) by the parents’ unwillingness from an emotional perspective to hand over the long term parenting of J to Ms O and (b) by Ms O’s inability to prioritise J’s needs in her role as special guardian -and particularly his need for safe and consistent care - over and above the wishes and needs of the parents to share with her the parenting of J.

61 It is also relevant in my overview of the case that once the parents had recognised their incapacity to care for J and appeared to support Ms O’s application, they played no further part whatsoever in the final hearing despite a clear request from the court that they should attend court and listen, in particular to the evidence of Ms O. Ms O told me that she had asked her brother to attend court following my request but that he had told her he felt too unwell to attend. No family member could exert any influence on him to come to court and the mother appeared unable to attend court without the father being present. Although it is tempting to explain the parents’ failure to attend court for any part of the substantive final hearing as caused by an emotional response to their decision to relinquish their application to care for J, I am not convinced that this was the only motivation. I believe that, despite their written statement in support of Ms O, they were unable, at heart, to give their blessing to an arrangement which denied them the opportunity to care for J and that they had no inclination to hear Ms O’s evidence from the standpoint of a potential long term carer of their son. The effect of their non-attendance at court meant that J’s parents left the extended family to argue the case for keeping J within the family without any active intervention or support for this option from them. I am afraid that this told me that (as has already been documented) these parents do and say what suits them when it suits them without any thought for the consequences of their actions and certainly, so far as the progress of the final hearing was concerned, without focussing on the needs of their child.

62 The father has evidenced seriously harmful intentions since Ms J’s report was prepared and behaviour which inevitably calls into question how contact could be managed in the future. The extended family seemed to treat it as nothing new and nothing to become seriously concerned about as they had seen it all before. However, I am concerned with a young vulnerable child who cannot protect himself from his father’s moods and behaviour and a mother who is emotionally dependent on the father and desperate to play an active role in her son’s life. I am left to conclude that the paternal family have become so enured to the father’s disabling mental health that they cannot see the issues of risk in terms of J’s future welfare. I fear that the willingness of the family (and Ms O in particular) to “turn a blind eye” to the significant deterioration in the father’s mental health in the very recent past means, with regret, that I cannot trust her nor the extended paternal family to protect J from his parents and to prioritise J over and above the needs of the parents.

63 The paternal family members are decent, kind people who have done their very best within these proceedings to keep J within the family. However, they have studiously avoided looking at the risks which the historical and recent evidence brings into sharp focus and they have refused to wrestle with the fact that these parents refuse to understand and accept that they cannot care for J in the longer term. Although Ms O would do her best (and perhaps there is the “steely nerve” within her described by Ms J) I am satisfied that she could not withstand the constant demands placed upon her by each of these parents in their different ways to be involved in J’s upbringing. Accordingly and in those circumstances I find, in the very particular circumstances of this case, that Ms O’s appointment as J’s special guardian would not be conducive to J’s long term welfare.

64 I have deliberately focussed on the potential for J to be placed within his family because any other order (particularly an order which sanctions his adoption) should only be countenanced if a family placement is not viable. In making my decision that J cannot remain within the family, I have taken into account very carefully the adoption welfare checklist and the loss to J of his relationship with the birth family if he cannot remain cared for by a family member. I have also considered the effect on him of ceasing to be a member of his original family and becoming an adopted person. I have also fully analysed the ability and willingness of Ms O, J’s paternal aunt, to offer a home to J and the fervent wish not only of the parents but of the extended family that he should not be adopted. These factors are of very great significance but they cannot supercede all other welfare considerations particularly where as I have found, the risks associated with J being placed with Ms O significantly outweigh the benefits to J of remaining within his family. I therefore make a final care order in this case in favour of the local authority and in making this decision I have fully taken into account all relevant welfare criteria in the Children Act 1989 and the Adoption and Children Act 2002.

65 If J cannot remain within his family, I have concluded that he should be given the best opportunity to have an alternative family life by being placed for adoption with individuals who will treat him as their own throughout his life. Although this is heartbreaking for his family I am bound to assess the benefits to the child of being adopted (if he cannot remain within the family) recognising as I do the draconian nature of a placement order and the implications from a human rights perspective of my interference with the right of the parents to be involved in the upbringing of their son. At the age he is (1 year old) he is likely to be adopted without difficulty and I am entirely satisfied, from a welfare perspective, that a placement order should be made in this case to safeguard and promote his welfare during his life. As the parents do not consent to the making of a placement order in respect of J, I dispense with the consent of each parent to the making of the placement order on the ground that J’s welfare requires their consent to be dispensed with (s52 Adoption and Children Act 2002)

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> JV (final care and placement order) [2014] EWFC B112 (15 July 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B112.html Cite as: [2014] EWFC B112

England and Wales Family Court Decisions (other Judges)