England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEICESTER
CASE No: LK13CO0784

 

 

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down 2^nd May 2014)

 

 

 

 

Re T (A Child: Delay - Extension - further assessments)

 

 

 

 

Mr Justin Slater for the local authority

Mr Paul Tapper for the mother

Miss Nadia Mansfield for the father

Miss Alison Humphrys for the Children’s Guardian

 

 

 

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

 

 

 

Judge Bellamy:

1.         Leicestershire County Council (‘the local authority’) applies to the court for a care order and a placement order in respect of T. T is aged 9 months. His parents are CS (‘the mother’) and DG (‘the father’). The parents oppose the local authority’s applications.

Background

2.         The mother is aged 35. The father is aged 37. They met when they were both patients at a Mental Health Unit. Their relationship has now ended.

3.         The mother has an older child, N. N is now aged 16. N is accommodated by the local authority pursuant to s.20 Children Act 1989.

4.         The local authority first became involved with the mother and N in May 2005. N was then aged 7. There are no documented concerns about the mother’s care of N prior to May 2005. I proceed on the basis that up to that date the mother’s care of N was at least ‘good enough’.

5.         On 3^rd May 2005 the police attended a domestic incident at the mother’s home. The mother alleged that she had been assaulted by her then partner, JR. The mother was drunk. The police were concerned about her ability to care for N. Eventually the police were satisfied that N was safe in her mother’s care. A referral was made to the local authority. This is the first of several references in the chronology to the mother’s alcohol abuse.

6.         The mother has self-harmed, sometimes with the clear intent to take her own life. The first occasion of self-harming noted in the chronology was in November 2006 when she cut her wrists. She was admitted to a Mental Health Unit where she was treated for depression.

7.         A further incident in May 2007 led to the police detaining the mother under s.136 Mental Health Act 1983. Over the course of the following years there were other occasions when the police had to exercise their powers under s.136.

8.         Notwithstanding all of this, N continued to be cared for by her mother. Although there is no suggestion that N was ever physically harmed by her mother, she was nonetheless exposed to the pattern of her mother’s behaviour described above. It is remarkable that the local authority did not intervene more decisively to protect N. According to the social worker’s chronology, it was not until 7^th July 2008, more than three years after this local authority became involved in the life of this family, that an initial Child Protection Case Conference was held. N was made subject to a child protection plan under the category of emotional abuse and neglect.

9.         On 14^th July 2008 the mother consented to N being accommodated by the local authority pursuant to s.20 Children Act 1989. N was placed in foster care. N has remained in local authority foster care since July 2008. The local authority has never considered it necessary to share parental responsibility with the mother. Although it is undoubtedly the case that the local authority was in a position to satisfy the court that the threshold set by s.31(2) was met with respect to N, the local authority has never applied for a care order. That, too, in my judgment, is remarkable.

10.     Since N has been in foster care the mother’s difficulties have continued. There have been more incidents of self-harming, more alcohol abuse, more admissions to the Mental Health Unit (some voluntary, some compulsory under the Mental Health Act 1983) and more police involvement. It is evident from the police records that the mother has on occasion assaulted officers as they have tried to detain her. She has never been prosecuted for assault.

11.     In late 2012 the mother became pregnant. The pattern of behaviour described above was ongoing at the time she became pregnant.

12.     In February 2013 the local authority completed a Core Assessment. It set out in detail the history of these parents’ difficulties. The author of the report recommended that the unborn child be made the subject of a child protection plan under the categories of risk of emotional harm, neglect and physical harm and that the case be transferred to the child protection team for implementation of the child protection plan. Towards the end of the report the point is made that,

‘Based on the concerns illustrated in this report, it is evident that there is a need for further stringent and rigorous assessment of both CS and DG’s joint and individual ability to meet and respond to the evolving needs of a child.’

 

13.     A pre-birth initial child protection conference took place on 27^th February 2013. The mother did not attend. The conference had before it a report from the mother’s treating psychiatrist, Dr A. In it he says that,

‘Despite extensive support from the community mental health team and the inpatient care team it has not been possible to fully contain the self harming behaviour which continues to pose a risk to the foetus. This is an ongoing risk that needs to be monitored closely.’

 

14.     A review child protection conference took place on 17^th May. Once again the need for an assessment of the mother was identified and recorded. The minutes of this meeting record that the mother,

‘…stated initially that she did not wish to co-operate with the CYPS and it was a difficult time for her when she was admitted to hospital. However, since this time CS’s mental health has become more stable and she has engaged in meetings with the CYPS. A pre-birth assessment could not be done until CS was stable but her mental health is now improving and it was acknowledged that it is still early days. An assessment to be undertaken of CS and DG’s parenting capacity and their ability to identify and prioritise the baby’s needs and protect him from harm.’

 

The minutes go on to record that the allocated social worker, Lynsey Mirfield,

‘stated that the concerns have been made clear to both parents and they will be assessed separately…’

 

Later, the minutes also record the decision of the meeting that,

‘A written agreement will be drawn up at the time of the birth of the baby. On the 21^st May 2013 a legal planning meeting will be held and the concerns have been made clear to the parents. The Local Authority intend to issue care proceedings when the baby is born and upon the baby’s discharge from hospital s/he will be placed in foster care whilst the necessary assessments are undertaken.’

 

15.     A legal planning meeting took place on 21^st May. The meeting decided to initiate the pre-proceedings process. The minutes of the meeting record that,

‘Due to the long standing maternal history of poor mental health alongside the views of the Mental Health Service in regard to mother’s vulnerability means that the Local Authority will not be supporting the return of the baby to mother’s care in the short term and probably not as a final care plan.’ (emphasis supplied)

 

The meeting agreed to ‘Initiate tailored Parenting Assessment for father’. There is no mention of any kind of assessment of the mother. It is clear that by the date of this meeting the local authority had effectively written the mother off as a possible carer for her unborn child. When pressed, the allocated social worker, Lynsey Mirfield, agreed that the local authority had ruled the mother out as a long-term carer for T before he had been born.

16.     The legal planning meeting led to the preparation of a pre-proceedings letter to the parents. The letter is undated. It sets out an overview of the local authority’s concerns. It informed the parents of the local authority’s intention to begin proceedings. It invited the parents to attend a pre-proceedings meeting on 17^th July.

17.     There are no minutes from the pre-proceedings meeting. Initially I was told that notes had been taken but that the minutes had never been drawn up. Despite requesting the production of the notes, those notes have not been produced. According to Lynsey Mirfield, the case-holding social worker, it was at this meeting that the mother ‘would have been informed’ that she would not be assessed. Pre-proceedings meetings are very important meetings. Minutes should be taken and should be drawn up promptly after the meeting. In this case, the failure to prepare any minutes is a serious omission. There is no evidence upon which the court can reach any conclusions about what was said to or by the parents at the pre-proceedings meeting.

18.     T was born on 8^th July. The local authority issued these proceedings on 10^th July and immediately applied for and obtained an interim care order. On 12^th July T was discharged from hospital into the care of a local authority foster carer.

19.     There was concern about the mother’s likely reaction to the removal of her baby. After T was born the mother was admitted to the Mental Health Unit as a precaution. This was a voluntary admission. She was there only for a few days. Since her discharge there have been no further admissions.

20.     In accordance with its pre-birth decisions the local authority has not undertaken any assessment of the mother since T was born. There has, though, been a parenting assessment of the father. This was undertaken by Kerry Ball, a support and assessment worker. The assessment concluded that without ongoing support from his mother and wider family the father would not be able to care for T.

21.     The father lives with his mother, BG. BG was willing to be T’s primary carer. It is clear that notwithstanding BG’s age (she is now aged 67) the local authority was actively considering placing T in her care.

22.     The father was told of the outcome of the assessment on 27^th September. The local authority was proposing to continue the assessment in BG’s home. Rather than being encouraged by that outcome, within three days the father had indicated that he no longer wished to put himself forward as a carer for T. He informed the local authority that he agreed to T being placed for adoption. Following his lead, BG also withdrew her offer to care for T. A final farewell contact took place in October. The father and his family have not had any further contact with T.

23.     An issues resolution hearing was held on 21^st November. The father having ruled himself out and the local authority having ruled the mother out, the local authority’s final care plan was that T should be placed for adoption. The mother did not agree with that plan. It was not possible to resolve the case at the IRH. The case was therefore listed for final hearing on 12^th and 13^th December.

24.     On 28^th November the mother issued an application under FPR 2010 Part 25 seeking permission to instruct an independent social worker to undertake a parenting assessment. That application was listed for hearing on 6^th December. At that hearing the court was informed that at a recent adoption medical the paediatrician who conducted the examination advised that T needed to undergo an MRI brain scan under general anaesthetic. The guardian sought an adjournment of the final hearing until the MRI scan and any further recommended investigations into T’s health had been completed. The final hearing was adjourned.

25.     Shortly before this adjourned final hearing began the father indicated that he has changed his mind. He does now wish to be considered as a carer for T. He is supported by his mother. He has applied for permission to instruct an Independent Social Worker to undertake an assessment. That application is opposed by the local authority and by the guardian.

The section 31(2) threshold

26.     The local authority’s threshold document is based on the history outlined above. It is unnecessary to set it out in any further detail. The parents accept that the s,31(2) threshold is satisfied.

T’s developmental progress

27.     T was born at full term. He was born in hospital. His hospital records have not been produced. He presented with withdrawal symptoms for the first 3 months of life’. Those symptoms related to the mother’s prescribed medication.

28.     T’s foster carer is very experienced. She has been a foster carer for 16 years. She notes that T was a very tiny baby. When he came into her care he had a high pitched piercing cry the extent of which she had never experienced before. She also noted that T had jerky movements especially in his arms.

29.     T is now 9 months old. He is developmentally delayed. At one point it was felt that his developmental delay was in the order of around 12 weeks. Although there has been some improvement it is still felt that he is delayed by at least 6 weeks.

30.     The foster carer describes T as ‘the most challenging and demanding baby I have cared for to date’. This is borne out by the logs she has kept. T frequently becomes very distressed. When distressed he is difficult to comfort. Despite her best efforts she has found it impossible to establish any routine with him. There are ongoing concerns about stiffness in T’s right arm. There have been concerns about cloudiness in his eyes and about whether his vision may be impaired.

31.     T underwent an adoption medical on 13^th November. The foster carer records,

‘Adoption medical. Raised my concerns regarding T’s eyes and ask if the referral had been made also about his arm that his fists are always tightly clenched and that he always tucks them back, also that it was a struggle to put on his coat and he would become very resistant. On examining T it was agreed to refer him for an MRI to rule out the possibility of a stroke or cerebral palsy.’

 

Three days later, the foster carer notes in her log, ‘A very difficult and demanding baby very little calm periods’.

32.     On 22^nd January the foster carer met with social workers ‘to do an up date on T’s profile for adoption’. She records that she explained to the social workers that T ‘is still proving to be a very demanding baby he still doesn’t have a routine and still cries far more than you would expect’.

33.     It was not until February that the MRI scan was undertaken. In a letter dated 16^th April 2014 the doctor who conducted the adoption medical states,

‘I can confirm that T’s brain scan that was done in February 2014 was reported as normal. There have been ongoing concerns regarding T’s vision…Further investigations from Ophthalmology and possible BBV testing may have to be initiated. I will require an update on his medical health.’

 

34.     The final entry in the foster carer’s log is dated 17^th April. It records that,

‘T woke at 5.30 crying and grizzly. Didn’t want a bottle very restless wouldn’t settle with anything. Went to sleep at 8am woke at 9.30. Happy while in the bath then very grizzly couldn’t leave him. Carrying him around…Refused to eat clamping his mouth shut. Off his food…’

 

35.     Notwithstanding the significant concerns about T’s presentation, the stiffness in his arms, possible problems with his vision and his developmental delay, the only medical assessment of him has been at his adoption medical. That report has not been produced. However, it is clear from the letter from the doctor who conducted that examination that the causes of T’s difficulties are, as yet, undetermined. In her oral evidence the guardian accepted that a clearer understanding of the nature and cause of T’s difficulties may be of assistance when seeking to place him.

The local authority’s evidence

Assessment of father

36.     I referred earlier to the parenting assessment of the father. Although the assessment report was written after the father had indicated his intention to withdraw his request to be considered as a long-term carer for T, the conclusions of the assessment nonetheless bear repetition in full:

‘9.1 DG has been committed to attending contact with his son and has spoken about the need to put T first in order to have permanent care of him, enabling him to grow up within his family in the future.

9.2 DG has understandably presented as an inexperienced parent with his care and handling of T and has at times needed support in meeting his basic care needs within a child centred environment. Nevertheless DG has consistently followed advice from both professionals and his mother BG with his care of T.

9.3 DG has at times been unable to read T’s cues and has been mechanical with his responses to T at times of his distress.

9.4 However DG has always been accepting of advice and although the conclusion of this assessment is that DG would not be able to parent T independently with the ongoing support of his mother and wider family he would have been able to meet T’s basic care needs and have an active part in his life.

9.5 Sadly DG has decided he can not care for T and I feel this is unfortunate as he would have remained a key figure in T’s life.’

 

37.     In her oral evidence Kerry Ball said that she was surprised by the father’s decision to withdraw from the assessment. There were, she said, a lot of positives in her assessment. Although on his own the father does not have the capacity to meet all of T’s needs the local authority had been willing to consider BG as T’s primary carer. However, it is now more than six months since the farewell contact and she did not consider it possible to pick up the assessment from where it had ended. In her opinion if the father is to be assessed then it would be necessary for the assessment to begin afresh.

 

 

Social work evidence

38.     Lynsey Mirfield, the case holding social worker, is a senior social work practitioner. She is very experienced. Her initial social work statement is dated 4^th July, just a few days before these proceedings were issued. It reflects the local authority’s position as it was at that stage: that the local authority did not intend to undertake a parenting assessment of the mother (‘In the light of her volatile behaviour and unstable mental health, I believe that T would be at risk of significant harm should he be placed in his mother’s care.’); that placement with father and paternal grandmother was unlikely to meet T’s needs (‘In the light of the relationship between BG and CS, and in the light of CS’s general behavioural difficulties, this arrangement is likely to be fraught, placing the baby at high risk of significant harm.’) and that parallel planning for adoption would therefore begin immediately.

39.     By the time of Ms Mirfield’s second statement the father had ruled himself out as a long-term carer for T. Adoption was the only option under consideration. Ms Mirfield said that, ‘The sooner T can be placed with long-term permanent carers the sooner he can start to form secure attachments which will be life long.’

40.     Ms Mirfield’s third statement, dated 28^th November 2013, was intended to be her final statement. It does not comply with the requirements set out in Re B-S (Children) [2013] EWCA Civ 1146 to which I refer later in this judgment. She rules out the mother without identifying whether there might be any positives of placement with the mother:

‘The Local Authority made it clear to CS that unless there was a real and sustained improvement in her engagement with mental health services a parenting assessment would not be undertaken in respect of her, although there would, of course, be a social work assessment. There has not been any improvement…Her mental health is currently not stable and due to decisions she has made about not fully engaging her mental health is also not monitored properly…I do not believe that CS could be relied on to co-operate with external agencies, given her responses in the past.’

 

She notes that the father had decided that he did not wish T to be placed in his care. Placement for adoption was considered to be the only viable option. Although there is no analysis of the pros and cons of adoption, Ms Mirfield does acknowledge the potential difficulty of finding a placement (‘It is acknowledged that given the recent concerns surrounding T’s health and development it may prove more difficult to identify prospective adopters…’). Neither in her written statement nor in the final care plan is any consideration given to what may happen if an adoptive placement cannot be found. Paragraph 5.4 of the final care plans reads:

‘Contingency Plan - if plan breaks down or if preferred placement is not available

N/A’

41.     For the reasons noted earlier, the final hearing was adjourned. A new hearing date was set, to begin on 15^th April. On 14^th April Ms Mirfield filed a fourth statement. In it she acknowledges that T ‘still presents with some developmental concerns. He is making progress but his future health needs remain uncertain…’

42.     It is in thiss fourth statement that one finds the clearest articulation of what the local authority’s position had been in September 2013. Ms Mirfield says that,

‘In September 2013, the Local Authority had concluded that its final Care Plan would be a Special Guardianship Order to BG with the day to day care for T being providing (sic) by DG with her support…The next phase of the parenting and social work assessment in September 2013 would have been for longer periods of times and supervised mainly by BG. It was hoped that this would inform the Local Authority’s assessment and confirm a final Care Plan of placement with BG’.

 

43.     In March the father informed the local authority that he regretted his decision to withdraw from the assessment and that he now wished to be assessed as a long-term carer for T. In her fourth statement, responding to this indication by the father, Ms Mirfield refer to his earlier withdrawal and says that,

‘We are now over six months further on, with no clear idea of whether [the original plan] would be successful or not. If the Court felt that T could be placed with DG we would have to finish the parenting assessment as was planned. The risk with this is that if unsuccessful it will lead to unnecessary delay for T. T is already nine months old and needs permanency as soon as is possible so he can attach, belong and develop appropriately.’

 

44.     That is an analysis of the negatives of further assessment of father and paternal grandmother. There is no analysis of the positives. Ms Mirfield goes on to consider the various orders the court could make and rules out all of them save for a care order supported by a placement order. With respect to each alternative considered, save for the ultimate proposal, the analysis identifies only the negatives on the basis of which each of those options is ruled out.

45.     In her oral evidence Ms Mirfield stood by the views expressed in her written statements. She had been surprised that the father and paternal grandmother had withdrawn and cut all ties with T. There had been no indication that that was about to happen. As she put it, in the context of father’s present application, the result of his decision is that he has missed three-quarter’s of T’s life. It would now be too risky to carry out further assessment, the main risks being those of delay and of the father again changing his mind. She also expressed concern about how the father would protect T from CS.

46.     As for the mother, Ms Mirfield remains concerned about the time required for her to complete therapy. She is also concerned about the mother’s lack of family support. She has no family members living nearby who could support her and appears to have few friends. There is a concern that the mother is rather isolated with little evidence of her being integrated into her local community. Ms Mirfield considers that it would be ‘far too risky’ to place T with his mother. There is no possibility that the local authority could manage the risks. There are no safeguarding measures that could be put in place. This would be a particular concern in the event that there were to be a relapse in the mother’s mental health.

47.     When challenged about the local authority’s decision not to undertake a parenting assessment of the mother, Ms Mirfield said, ‘I think there is already enough evidence of her parenting ability’. She went on to say that the decision was also based on the local authority’s view that the mother was not mentally well enough to care for a child. She said that until the mother had successfully completed her course of psychodynamic psychotherapy the local authority would not consider her as a carer. She made the point that the mother’s ‘stability and consistency have not been tested out’ and that she would not want to test it out because that would be ‘too high risk’.

48.     Initially the mother was allowed contact with T five days a week for one hour. She was breast feeding him. She expressed milk for the foster carer to use. Her take up of contact was inconsistent. In the early days she missed quite a few contact opportunities. At the time the local authority began its assessment of the father, and in order to accommodate that assessment, the local authority reduced the mother’s contact to twice a week. The mother assented to this change. After the assessment of the father ended the local authority did not increase the level of the mother’s contact ‘because she was struggling’.

49.     Having raised my concern that the final Care Plan did not contain a contingency plan, the local authority agreed to file an amended Care Plan. This was filed on the morning of the third and final day of this hearing by which point all that remained was for the court to hear closing submissions. The amended final care plan, signed by Ms Mirfield, goes much further than adding a contingency plan of long-term foster care. It sets out in elaborate balance sheet format an analysis of the pros and cons of a number of alternative outcomes. It is interesting to note the order in which they are considered: ‘A: Adoption…B: Care Order Foster Care…C: Special Guardianship Order…D: Care Order - Care Plan Placement at Home with Parents…E: No order/residence order/supervision order’.

Contact

50.     There are two issues that arise with respect to the mother’s contact with T. The first relates to her reliability. The second relates to the quality of the contact.

51.     As for the first issue, there is no doubt that when the contact was set at 5 days per week the mother was inconsistent. Several contacts were missed. Although the mother says that some of the missed contacts were because she was unwell no medical evidence has been produced. The problems are illustrated by an analysis of the mother’s contact between birth and 20^th September. This shows that during that period the mother missed around a third of the available contacts. Since contact was reduced to twice a week the mother’s take-up of contact has been greatly improved. That could be because the frequency had been reduced. It could also be because of the impact of the mother’s engagement with therapy. It may be a bit of each. It is unnecessary to draw a firm conclusion on that issue.

52.     As for the second issue, contact notes have been produced. The interpretation of those records needs to bear in mind two very important factors. Firstly, that there is the clearest possible evidence that T is a particularly difficult child to manage. Even a very experienced foster carer has been unable to establish him in a routine and has found difficulty in comforting him when he becomes distressed. Both at home with his foster carer and during contact there have been times when T has becomes distressed for no apparent reason. The contact record for 17^th December notes, ‘T screamed for first 45 minutes of contact. Nothing consoled him. T screams from 0-10 very quickly.’ Secondly, it must be remembered that contact sessions have only lasted one hour. That is very brief. It provides little opportunity for a parent to demonstrate the full range of parenting skills required to care for a baby on a full-time basis.

53.     With those two caveats in mind, what do the contact notes record? The negative observations include comments such as, ‘CS took T out in the garden in his sling when his bottle was due. He became very upset and held his breath…CS was wanting to give T a drink of water when he was clearly hungry for his milk…CS did not wind T appropriately due to him crying and continued to feed him his whole bottle…’ As for positive comments, the record of contact on 3^rd April is, I am satisfied, typical of positive comments made:

‘CS is very attentive towards T and ensures he is happy at all times. CS does many different things with T to ensure he is happy such as, baby gym, bumbo chair, doughnut ring, reading stories, singing nursery rhymes and playing with the finger puppets - which T enjoyed. CS’s hygiene standards are very high, she wipes everything down with Tommie tippee wipes - specially designed for dummy’s (sic) and toys. CS ensures the room is at the correct temperature at all times…’

 

54.     Psychiatric evidence

55.     Dr A is the treating psychiatrist responsible for the care of both parents and of paternal grandmother. He has prepared written reports in respect of each of them. He has also given oral evidence at this hearing.

The mother

56.     I referred earlier to the written report prepared by Dr A for the pre-birth initial child protection conference which took place on 27^th February 2013. In his written report prepared for these proceedings (dated 13^th September 2013) he remained very cautious to the point of being pessimistic. However, since that report was written the mother has made significant progress. In his oral evidence Dr A was much more upbeat about the prognosis.

57.     In his written report Dr A notes that at the time of the mother’s initial contact with mental health services,

‘She presented with low mood and tearfulness. There was also disturbed sleep and appetite and low motivation. She reported that she copes with these difficulties either by consuming alcohol or harming herself by cutting herself or overdosing. It was reported that these difficulties have waxed and waned since the age of 16. Also these difficulties get exacerbated when there is any ongoing stress.’

 

58.     The mother has a diagnosis of emotionally unstable personality disorder with secondary depressive features. She is currently prescribed sertraline (an anti-depressant), pregabalin (an anti-anxiety drug), nitrazepam (to treat her insomnia) and ranitidine (to treat a stomach ulcer). She has in the past been prescribed mood stabilisers but these are no longer necessary. In terms of the mother’s mental health, Dr A was clear that the best treatment for her is psychodynamic psychotherapy. The mother has had to wait a very long time (over two years) for this therapy to become available. It did not begin until September 2013.

59.     The mother was first admitted to a Mental Health Unit in October 2006. Since then she has had a total of 16 admissions, nine of which have been compulsory admissions under the Mental Health Act 1983. The final four paragraphs of Dr A’s report are of particular importance. He says that,

‘12.5 CS’s engagement with the services and treatment interventions has been variable at best. Despite extensive involvement of various components of services and treatment options, it has not been possible to achieve a satisfactory level of recovery and stability until recently.

12.6 On a positive note, since the birth of T, CS has presented as more stable and very keen in engaging with treatment, especially the psychotherapeutic intervention which would be considered as the most important component of the psychiatric interventions likely to help achieve a positive outcome.

13.0 PROGNOSIS

13.1 Looking at the history so far, extensive history of self harming behaviour which at times can be very serious, 16 admissions to inpatient facility over a period of 7 years including nine admissions under the Mental Health Act, poor engagement with the service and treatment interventions and poor treatment outcomes so far, her prognosis does not appear to be very positive.

13.2 However, the birth of T may prove to be a turning point in her life. It may be early days, however CS has engaged with the service since the birth of T and has appeared more keen and determined to get the most out of treatment, especially psychotherapy. The long term prognosis will depend on CS’s ability to continue to engage with the service and proactively participate in psychotherapeutic interventions over the next couple of years.’

 

60.     In his oral evidence, Dr A noted that the mother has been engaging with alcohol services, with the community mental health team and with the psychodynamic psychotherapy. Although the relationship between the mother and her psychotherapist is confidential, as a result of which Dr A has no first-hand knowledge of the progress made, he notes that when seen in clinic the mother appeared to be coping very well with the therapy. This surprised him. He had expected to see signs of distress and of her not coping. That was not the case. She was engaging well and coping well. When the local authority reduced her contact with T from 5 one hour sessions per week to 2 one hour sessions she dealt with her distress by contacting the community mental health team rather than, as she may have done in the past, by resorting to alcohol and self-harming.

61.     Although he has not had patients with the mother’s range of difficulties who have been completely discharged from mental health services, in Dr A’s experience many such patients do achieve stability. Many of them are able successfully to parent their children.

62.     Dr A accepted that the work undertaken in therapy would be challenging and stressful. He is confident that if the therapist becomes concerned about the impact of therapy he would contact the community mental health team so that additional support could be provided.

63.     It was put to Dr A that the mother has had therapy in the past but this had had no lasting benefit. Although he accepted that this is so, he made the point that the therapy the mother had undertaken in the past was not psychodynamic psychotherapy, this being deeper and more intense than the therapy she had had in the past. So far as the mother’s therapeutic needs are concerned, it was clear that Dr A regarded psychodynamic psychotherapy as the gold standard.

64.     Finally, Dr A was asked about the risks to T if, whilst placed in the mother’s care, she were to become acutely unwell again. He was clear that he did not regard the mother as presenting a physical risk to T.

The father

65.     The father’s first contact with mental health services was in November 2007. He presented at hospital where he was seen by a consultant psychiatrist from the Crisis Resolution & Home Treatment Team following an episode of ‘bizarre behaviour’ at a family birthday party. The conclusion was that he was most likely presenting with recurrent depression against a background of cannabis abuse and binge drinking. The following month he was admitted to a Mental Health Unit. This was the first of several admissions. He was diagnosed as suffering from Bipolar Affective Disorder. His last admission to the Mental Health Unit was in April 2012.

66.     Dr A notes that,

‘There is a history of self-ham. There is also a history of aggressive and violent behaviour as well and impulsive acts. There is also a history of sexually inappropriate behaviour which could have been due to the influence of alcohol or hypomania during the initial two episodes. There is a previous history of poor compliance with medication and treatment programmes and difficulty in engagement.’

 

67.     In Dr A’s opinion, at this stage the prognosis is poor. He says that,

‘Looking at the history and treatment DG has received so far the prognosis does not appear to be very positive as DG has had several relapses in five years of contact with our services including five periods of treatment in the inpatient facility…The long term prognosis will depend on his ability to continue to engage with the service and adhere to the treatment regime as well as abstinence from alcohol misuse and illicit substances. Additionally it will depend on how successful the pharmacological interventions are in containing his illness episodes.’

 

68.     In December 2013 the father decided to reduce his medication. He did so without reference to the mental health team or to his GP. His condition began to deteriorate. Fortunately, he was persuaded to restore the original level of medication and his condition quickly improved. Dr A said that he was ‘disappointed’ that the father had behaved in this way. However, he was also prepared to accept that this was a relatively minor blip. He acknowledged that the father has not abused alcohol for more than two years.

Paternal grandmother

69.     Like CS and DG, paternal grandmother, BG, is also one of Dr A’s patients. He described her as ‘the most stable of the three’.

70.     BG’s first contact with mental health services was in December 2008 when she was seen in the outpatient clinic at a Mental Health Unit following a referral by her GP. She presented with a three year history of low mood, the result of a number of adverse life events. For a period of time she had abused alcohol. She was diagnosed with depression. She was prescribed antidepressants. She also underwent a course of cognitive behavioural therapy.

71.     In his report, Dr A says that BG ‘has responded very well to treatment and has made steady progress and recovery’. In addition to undertaking CBT she had received help from the community alcohol team and had received alcohol detoxification. Dr A reports that, ‘she has done well in this regard and has not had any problems with drinking since’. He notes that she ‘has regularly attended the outpatient clinic for reviews and has shown good compliance with treatment’. In his opinion, ‘she has made a full recovery and has remained well and stable. Overall her prognosis is very good’.

Independent social worker

72.     On 28^th November the mother applied for permission to instruct an independent social worker. On 6^th December, and in light of the local authority’s failure to assess the mother, I indicated that I agreed in principle that, in accordance with FPR 2010 rule 25.1, the instruction of an ISW was ‘necessary’. However, I rejected the names of three experts proposed for consideration. Approving the identity of the expert was held over to a hearing on 20^th December.

73.     I am told that the parties struggled to find an ISW willing to undertake the work at the rates allowed by the Legal Services Commission (now the Legal Aid Agency) - a maximum of £900 (30 hours at £30 per hour). This is becoming an increasingly serious problem in Children Act cases. The parties eventually agreed to the instruction of Mr Vernal Cooper. On 20^th December I gave the parties jointly permission to instruct Mr Cooper. I was told that Mr Cooper was willing to undertake the work for £900 and was able to report by 7^th February. Having accepted the instructions and begun work, Mr Cooper indicated that the work would take 50 hours and that he would not be able to complete his report until 7^th March.

74.     Mr Cooper’s assessment of the mother is negative. He begins his assessment with a summary of his conclusions in which he says,

‘It has been slow to engage with CS due to her having to deal with some difficult personal memories from her childhood. Despite this she has provided me with a lot of written information, which is of a high standard…and shown (sic) she clearly does love her son. However, she fails to recognise the local authority’s position and how her mental health issues and history of alcohol abuse pose a risk and mean that her full focus could not be on meeting the needs of the son. It should be noted that CS is working towards overcoming her dual mental health problems of emotionally unstable personality disorder and depression through starting a process of therapy, which is still very much in its infancy. However, it is evident that her mental health issues are enduring and difficult to deal with and her overcoming her problems in future does not fit in with the timescale of the child who needs stability now and can be challenging at times. Thus it is not foreseeable regrettably that T could be returned to CS as she is currently working on dealing with her mental health problems and adding the caring for a young child who does present challenges is a risk too great to put T or CS herself in. Even though her homework has shown, in theory, she is aware of his needs and how to meet them, theory and practice are two different things. She prepares well for contact and puts the effort in but contacts are a short period of time in a controlled environment and I am not convinced that she will be able to manage her mental well-being and raising T who is challenging and delayed developmentally. I am of the opinion that it would be too much for CS to cope with even though she feels strong enough to deal with the challenges. I feel that she is somewhat blinded by love and desire to have her son back that she fails to fully understand the severity of her history of mental health problems, severity of self-harming and how she would be better serving T by carrying on with her therapy and keeping mentally and physically fit.’

Given that the local authority proposes that T should be placed for adoption it is difficult to see how the mother ‘would be better serving T’ by continuing to look after her mental health. Once he has been adopted the mother’s contact with him would be limited to letter-box contact only.

75.     In his oral evidence Mr Cooper accepted that the mother had engaged with him fully. He had observed contact three times. He had not seen any evidence of risk. The mother had shown that she is able to complete tasks. He noted that she appears to be committed to therapy.

76.     It became clear that the key factor which had prompted Mr Cooper to come to the view that he could not support the mother as a long-term carer for T is his concern about the mother’s mental health and about her past self-harming behaviour. In his opinion it is not possible to ignore the risk of relapse and the consequent risk of harm to T. Although it is clear that the mother has made real progress over the course of the last twelve months, he made the point that a year’s progress does not cancel out all the past years of self-harm and mental health difficulties. As he put it, there has been some change but we are only looking at a year.

77.     Mr Cooper accepted that whether it would be safe for the mother to parent T would depend, in part, on the support available. He noted that the mother is ‘quite isolated’ and is dependent on the support of professionals.

78.     Notwithstanding his concerns about this mother, Mr Cooper accepted that he has seen parents with mental health problems who have successfully parented children. It is, as he put it, a question of stability.

The mother

79.     The mother endured a difficult and damaging childhood. She is one of four sisters. One of her sisters died within two weeks of birth. Another sister died in a house fire which was caused, as she later discovered, by her own mother. The third sister is reported to have suffered brain damage as a result of smoke inhalation. The mother says that she herself still suffers from chest problems caused by smoke inhalation.

80.     The difficulties of childhood continued into adulthood. The mother has been in abusive relationships. She attributes her abuse of alcohol to being the victim of domestic violence which drove her to drink ‘as a form of escapism’.

81.     The mother accepts her long history of mental health difficulties and self-harming. She accepts that N has been exposed to her alcohol abuse. She has no recollection of N observing her self-harming but says that if N says she has seen it then she accepts that that must be so. She said, ‘it is entirely my fault and my responsibility’. In 2008 she had recognised the depth of her problems and therefore agreed to N being accommodated by the local authority.

82.     During her pregnancy with T the mother was referred by her midwife to the Swanswell Alcohol, Drug and Support Services. She has produced a recent letter from Swanswell. The letter says that there were ‘No concerns about abuse of alcohol from the point of engagement until CS’s file was closed on the 19^th March 2014.’ It goes on to say that the mother ‘was motivated throughout treatment to engage and address her concerns and learn and review different coping strategies to support her in dealing with difficult situations and even without the need for a substance to “cope”.’ The support worker goes on to say that ‘[No] problematic alcohol consumption was ever identified in the time I supported and had regular contact with [her].’ The mother says that over the last three months she has consumed an average of 6 units of alcohol per week.

83.     The mother is co-operating with the community mental health team. She is fully engaged with psychodynamic psychotherapy. She has produced a letter from her Community Psychiatric Nurse, Mandy Dear, dated 11^th April 2014 in which Nurse Dear says that,

‘It is felt generally by the Community Mental Health Team that overall there has been a great improvement in CS’s ability to cope in stressful situations…There has only been one admission in July 2013, which was arranged for after CS gave birth. This was offered to CS as a safety precaution due to the levels of stress expected when handing the child over to foster care. Despite this being a very stressful time CS displayed positive coping strengths and was discharged after only a few days. There have been no further admissions recommended.’

 

84.     The mother’s last CPA [Care Programme Approach] Review was on 24^th February 2014. The report of the Review notes that,

‘There have been no recent reports of [deliberate self harm] or management difficulties…CS’s mood remains stable. There are occasional upsets, however these are what would be expected due to the child protection circumstances. CS has coped with these appropriately. There is no current issue with excessive alcohol intake…Since the last review there has been no evidence of risks to self or others in terms of physical risk…There have been occasions when there have been discrepancies or confusions on what has been said between CS and different professionals, therefore CS continues to be seen by 2 workers as a solution…’

 

85.     The mother is adamant that she will complete the therapy. Although initially she found it very hard she said that she is ‘not going to give up on something that is going to save my life’. She believes that the therapy she has had so far has already achieved enough to keep her from self-harming. She acknowledges that there is more to do.

86.     I have outlined the regime of medication the mother takes. Because of the risk of self-harm, until recently her GP would only prescribe one week’s supply of medication instead of a month’s supply at a time. This has recently been relaxed a little. Her GP now prescribes medication on a fortnightly basis

87.     I have heard evidence about an incident in October 2013 in which the mother is reported by the father as having made a veiled threat to self-harm. She had gone to hospital with abdominal pains. The father had gone with her. Whilst outside the hospital the mother had looked up at an adjacent multi-storey car park and made a comment suggesting that she would throw herself off the top of it. The mother says that she became upset when looking up at the car park because she recalled that a friend of hers had committed suicide by jumping off the top of it. She says the father misconstrued a comment she made about this. I accept the mother’s evidence on this issue.

88.     The mother describes herself as being the most stable she has been for the last eight years. She is now studying part time for a law degree through the College of Law. She hopes to complete her degree in 2016. In addition to her studies she works from home as a paralegal undertaking research.

89.     If T were returned to her care the mother acknowledges that his return should be on a gradual basis and under the auspices of a care order so that the local authority can continue to share parental responsibility.

90.     The mother and the father are no longer in a relationship and have not been for some months. The mother opposes placement with the father. She also opposes his application for an assessment by an independent social worker.

The father

91.     The father is a well-educated man. He has a degree in Business and Psychology. He would like to study for a Masters degree. Until 2008, when he first became mentally unwell, he worked for a large software company in Dublin. He had worked for that company for two and a half years. He says he is able to return to his job when he feels well enough to do so.

92.     In the past the father has had a problem with alcohol abuse. He was convicted of an offence of drink-driving in 2011. He says that he now drinks very little.

93.     Although the father’s relationship with the mother has ended, he occasionally has contact with her. She has some video footage of T which she took during her contact visits. She recently called at his home to show the video to him and his mother. He speaks very positively of the improvement in the mother’s mental health. He said that he has ‘never seen such a change in someone - never seen anything like it’.

94.     As I noted earlier, the local authority has undertaken a parenting assessment of the father. At the point at which the local authority decided to move the assessment forward to include supervision by paternal grandmother, the father withdrew from the assessment process. In his most recent statement he explains why he withdrew. He says,

‘I became scared at the prospect of suddenly caring for a young baby full time and I was concerned about the burden that I was potentially placing on my family. I believed that I was doing the right thing at the time by stopping all contact with T if I was not putting myself forward as full time carer. The emotional wrench of seeing him and then potentially having him taken away from me was something that I did not feel able to deal with...’

 

95.     He goes on to explain why he has now changed his mind:

‘Following receipt of Vernal Cooper in respect of CS I decided that I had to put myself forward as full time carer for T and attempt to repair some of the damage that I have caused by stopping my contact with him and withdrawing from putting myself forward as full time carer for him.’

 

96.     The father proposes that his mother should be T’s primary carer under the auspices of a special guardianship order.

Paternal grandmother

97.     BG is T’s paternal grandmother. She is 67 years old. She is divorced. Until 2008, when she retired, she had been a primary school teacher for 25 years. A number of life stresses had combined to cause her to become very depressed. Alcohol became a problem. She is under the care of Dr A. Her mental health is stable and has been so for a number of years. She is prescribed a low dosage of anti-depressants. She takes medication for high blood pressure. Alcohol is no longer a problem.

98.     Physically, BG believes that she is fit and well. She has an active social life. She enjoys walking, driving, shopping with friends. She belongs to an art class and to a discussion group at her church. She feels younger than her age.

99.     BG says that she withdrew from the assessment process last September because in the light of her son’s decision to withdraw she really felt she had no alternative. With hindsight she realises that she should just have got on with it. She now deeply regrets going along with her son’s decision. She is very self-critical of that decision. She said, ‘If I weren’t such a stupid ignorant person I would have gone on without him’. Of T, she says, ‘I loved that little boy from the moment I saw him.’ She lights a candle for him at church every Sunday.

100. Apart from DG she has two other adult children, a son and a daughter. Her daughter is married with two children. She lives nearby. She doesn’t work. She is fit and well. BG is confident that if T were placed with her her daughter would support her when necessary.

101. BG’s other son, PG, is living with her temporarily whilst in the process of purchasing a new property. PG has filed a written statement confirming that he and the entire family would support BG and DG if T were placed with them.

102. BG has supported and continues to support DG through his mental health difficulties. She does not feel able to help CS with her mental health problems. However, if the court were to decide that T should be placed with CS then she would offer to help. For example, she would be willing to have T stay with her at weekends or even for longer periods if the mother were unwell. She said to me, ‘I will be there for him, Your Honour’.

The guardian’s evidence

103. Sue Hassall is T’s Children’s Guardian. Her second report, dated 17^th November 2013, was prepared as a final report in the expectation that if the case did not resolve at the IRH an early final hearing date would be fixed. At the time of her report the father had withdrawn from the assessment process, the paternal family had had a farewell contact with T, the mother had been engaged in therapy for only two months and, in her opinion, the local authority’s plan for T to be placed for adoption was the only realistic option. In her report she made the point that,

‘Engagement with therapy does not necessarily result in a complete recovery. Therapeutic outcomes and timescales are unknown at this stage. Therefore, to delay plans on this premis (sic) is not in T’s best interests.’

 

104. The final hearing in December was adjourned. The guardian has filed an updated final report in readiness for this current hearing. She has not met with the mother during the intervening period. Although her final report contains a welfare checklist analysis there is no analysis of the range of options available. The possibility of placement with either parent is dismissed briskly. The guardian remains of the opinion that placement for adoption is the only option.

105. In her oral evidence the guardian acknowledged the progress the mother has made but said that it is still too early, too risky, to consider placing T in her care. There has been no risk assessment of placement with mother. The guardian is unsure what support could be put in to reduce the risk. She is concerned that we don’t know what is going on in therapy; that we don’t know what the timescale is for completion of therapy; and that we don’t know what the risks would be of placing T with his mother whilst the therapy is ongoing. If return to mother’s care were delayed until completion of therapy T may then be over two years old. This is too long for him to wait.

106. The guardian is equally concerned about the father’s proposal. She is concerned about the risk of him withdrawing for a second time. In her opinion BG’s decision to withdraw shows a lack of commitment. She is also concerned about BG’s age. In her opinion, BG was right to have withdrawn from the assessment process last September.

107. The guardian accepts that there remain concerns about T’s health and development. Any potential adopters would need to understand T’s specific needs. They would also need to be made aware of the parents’ mental health issues and their potential long term consequences for T. It may be that a full paediatric assessment of T would be of assistance in the placement process. However, she remains of the opinion that adoption is the only viable option.

The law

Care proceedings - the basic approach

108. The finding that the threshold set by s.31(2) Children Act 1989 is satisfied is the gateway to the making of on order in respect of T. Within the care proceedings, in determining the appropriate order the court must follow the approach set out in s.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.

109. In addition to those statutory provisions, the court must also have regard to the Article 8 rights of T and of both of his parents and must endeavour to arrive at an outcome that is both proportionate and in T’s best welfare interests.

Placement application - the basic approach

110. In addition to a final care order the local authority also seeks a placement order pursuant to s.21 Adoption and Children Act 2002. The court may only make a placement order if either the child’s parents consent to the order being made or if the court dispenses with the parents’ consent. Section 52 provides that the court cannot dispense with a parent’s consent unless it is satisfied either that the parent cannot be found or is incapable of giving consent or that the welfare of the child requires that the parent’s consent be dispensed with.

111. In determining whether to make a placement order, whether to dispense with parental consent and whether to make a contact order, the court’s approach must be as set out in s.1 of the 2002 Act. So far as is material, this provides that:E+W

This sectionnoteType=Explanatory Notes has no associated

(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4) The court or adoption agency must have regard to the following matters (among others)-

(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b) the child’s particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including-

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child…

(6) The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

 

112. In addition to those statutory provisions the court must also have regard to the Art 8 rights of T and of both of his parents.

Re B-S (Children)

113. So far as concerns the approach the court should take when dealing with an application for a placement order or adoption order, the decision of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 is of central importance. The facts of that case are not relevant but the principles set out are highly relevant to the decisions I have to make. Those principles are to be found in the following passages:

‘17. Before proceeding any further, it is necessary for us to go back to first principles and to emphasise a number of essential considerations that judges must always have in mind, and we emphasise this, at every stage of the process. Regrettably, the continuing lack of attention to what has been said in previous judgments necessitates our use of plain, even strong, language.

18. We start with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is no need for us to go through the jurisprudence of the Strasbourg court. The relevant passages from three key decisions, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236, and YC v United Kingdom (2012) 55 EHRR 967, are set out by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B [2001] 1 FLR 611, para 34:

 

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.” …

 

20. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child "requires" this. "Require" here has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable": Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test…

22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort - when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

23. Behind all this there lies the well-established principle, derived from s 1(5) of the 1989 Act, read in conjunction with s 1(3)(g), and now similarly embodied in s 1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order) [1996] 2 FLR 755, 760:

 

“the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary.”…

 

25. Implicit in all this are three important points emphasised by Lord Neuberger in Re B.

26. First (Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.

27. Second (Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other. In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order. This is not an exhaustive list of the possibilities; wardship for example is another, as are placements in specialist residential or healthcare settings. Yet it can be seen that the possible list of options is long. We return to the implications of this below.

28. Third (Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28:

 

“It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully.”

 

That was said in the context of supervision orders but the point is of wider application…

34. …there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option…

43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

 

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.”…

 

44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

 

114. That guidance is very clear indeed.

26 weeks and the problem of delay

115. These proceedings have been ongoing since 9^th July 2013; that is a total of 42 weeks. I have already referred to s.1(2) Children Act 1989 and to s.1(3) Adoption and Children Act 2002. The general principle concerning delay is now underscored by s.14 Children and Families Act 2014 which came into force on 22^nd April - the final day of this hearing. That section amends section 32 of the Children Act 1989 so that, so far as is material, it now reads as follows:

(1) A court hearing an application for an order under this Part shall …

(a) draw up a timetable with a view to disposing of the application -

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to. …

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to -

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings; and here "ensuing timetable revision" means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification. …’

 

116. In Re B-S (Children) the President of the Family Division, Sir James Munby, made the point that,

‘We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.’

 

117. Pauffley J made a similar point in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), saying that, ‘ Justice must never be sacrificed upon the altar of speed.’

118. It is clear that some cases will require more than 26 weeks in order to achieve an outcome that is both just and fair. What are the criteria which might indicate that a case genuinely requires more than 26 weeks? In Re S (A Child) [2014] EWCC B44 (Fam) the President has recently given guidance on this issue:

‘33. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be "necessary":

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent's disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly 'derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

 

 

Discussion

119. In care proceedings the starting point for consideration of welfare decisions is the welfare checklist set out in s.1(3) Children Act 1989.

120. Section 1(3)(a) requires the court to have regard to the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). Plainly T is too young to be able to express a view. I make the assumption on T’s behalf that were he able to express a view it would be that he should be cared for within his birth family, preferably by one or other of his parents, so long as he would be safe and well-cared for in that placement.

121. Section 1(3)(b) requires the court to have regard to T’s physical, emotional and educational needs. T’s educational needs are not yet relevant. However, his physical and emotional needs are highly relevant. Notwithstanding the outcome of the MRI brain scan it remains the case that the causes of T’s stiffness, of his developmental delay and of his general presentation remain unexplained. Apart from the MRI scan no other investigations have been undertaken. The doctor who conducted the adoption medical acknowledged very recently that further investigations from ophthalmology and possible BBV testing may have to be initiated. Against that background of uncertainty it is not possible for the court to take full account of T’s physical and emotional needs. The most the court can to do is to note the evidence and have regard to the fact that the full picture is unclear.

122. Section 1(3)(c) requires the court to have regard to the likely effect on T of any change in his circumstances. It is clear that there must be a change in T’s circumstances. Although he has been in the same foster placement since he was four days old, at some point in the near future he will move. Depending upon the court’s ultimate decision that move will either be to a placement within his birth family or to a prospective adoptive placement. Whichever is the case T’s presentation to date suggests that the transition is likely to be difficult for him.

123. Section 1(3)(d) requires the court to have regard to T’s age, sex, background and any characteristics of his which the court considers relevant. T is almost ten months old. At his age his welfare interests require that his future be settled without unnecessary delay. So far as concerns his background and characteristics, again it is the uncertainty about the causes of his presentation that are in the fore.

124. Section 1(3)(e) requires the court to have regard to any harm which T has suffered or is at risk of suffering. I am satisfied that were T to be placed in the care of either of his parents there would be a risk of him suffering emotional harm if there were to be any significant deterioration in the caring parent’s mental health. This risk is not determinative of the issue of whether T should be placed with either of his parents. It does, though, mean that before the court could consider such a placement it would first have to be satisfied that appropriate measures were in place to protect against that risk.

125. Section 1(3)(f) requires the court to consider how capable each of T’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. All of the evidence points to great improvement in the mother’s mental state and functioning, in particular in the period since T was born. Her consumption of alcohol is no longer problematic. She is engaging with psychodynamic psychotherapy. She is compliant with her prescribed medication. She is engaging with her community mental health team. She is studying for a law degree. Despite earlier failures to avail herself of the contact available, this is no longer a significant issue. The reports of contact contain many positives.

126. Against that is the fact that the therapy is ongoing. There is no clear indication at this stage as to how long therapy may be required for but I proceed on the basis that the evidence suggests it is likely to be for around two years. There is no evidence as to whether the mother could care for a young child whilst still undertaking therapy. Furthermore, as the guardian rightly points out, there has been no assessment of risk and as a result there is uncertainty about what support the mother would need in order to protect against risk and no investigation of the feasibility of providing that support.

127. As for the father, it is clear from the incomplete parenting assessment carried out last year that he could not be T’s primary carer. Whilst he is capable of playing a role in parenting T, he can only do so if there is someone else available with the skills necessary to ensure that T’s needs and development are provided for. The person offered to fulfil that role is the paternal grandmother, BG.

128. The guardian is critical of the grandmother for withdrawing from the earlier assessment. She characterises that decision as evidence of lack of commitment. I do not accept that to be the case. It is regrettable that BG withdrew. I do not doubt that she herself very much regrets that decision. It may be a decision that the court should not allow to be reversed. But it was not a decision that has anything to say about this grandmother’s love and commitment for her grandson.

129. I found the grandmother to be an extremely impressive witness. Although she has had her own mental health difficulties, Dr A was clear that she is now very stable. Though 67 years old she is a very fit 67-year-old. It is clear from the evidence of Lynsey Mirfield that last autumn the role which BG now offers to play is the very role which the local authority was likely to propose that she should play. What has changed is not some new insight into the grandmother’s ability to play that role but the fact that, as a result of an unwise decision, she has not played any role in her grandson’s life for the last six months. That must be put into perspective. The local authority’s plan is to place T with strangers whom T has never met and with whom he has no blood tie.

130. Were BG to be T’s primary carer I am satisfied that she is under no illusions about what that would demand of her both in terms of child care and of forming a good working relationship with CS. Hitherto, it has not been a smooth relationship and the grandmother acknowledges that. I am, though, satisfied that if she were to be involved in T’s care, whether as primary carer or as backup carer to support the mother, she would not allow her differences with the mother to impact on the need always to put T’s welfare first.

131. Section 1(3)(g) requires the court to have regard to the range of powers available to the court under the 1989 Act in the proceedings in question. This sub-section needs to be read alongside the requirements of s.1(5). The local authority’s final care plan proposes placement for adoption and therefore seeks a care order and a placement order. The mother accepts that a care order is proportionate though she gives her support on the basis of a submission that T should be placed with her and that she should share parental responsibility with the local authority. The father seeks a special guardianship order in favour of paternal grandmother.

132. The local authority’s application for a placement order must be approached on the basis set out in s.1 Adoption and Children Act 2002. The welfare checklist set out in s.1(4) that Act differs from s.1(3) of the 1989 Act in some important respects. So far as concerns this case the key differences are to be found in s.1(4)(b), s.1(4)(c) and s.1(4)(f) of the 2002 Act

133. Section 1(4)(b) requires the court to have regard to ‘the child’s particular needs’. Clearly T has the same needs of any other nine month old child - to be loved, to be nurtured, to be cared for safely. He also has some health needs (physical and developmental) the extent and cause of which are unascertained and the prognosis for which is therefore unclear.

134. With respect to s.1(4)(c), the likely effect on T of having ceased to be a member of his birth family and become an adopted person, it is self-evident that the impact of adoption will be to deny him not just the love and care of his birth parents but also the opportunity to develop a meaningful relationship with them, with N, with BG and with his wider paternal family. Plainly the expectation is that this loss will be more than compensated for by the new relationships and attachments formed within an adoptive family. Whether that will prove to be T’s experience is, inevitably, a matter for speculation and hope.

135. Perhaps of greater concern in this case are the provisions of s.1(4)(f) and in particular sub-paragraphs (i) and (ii). There can be no doubt about the willingness of both parents and of paternal grandmother to provide a home for T and of their genuine wish to be allowed to do so. What is much less certain is their ability to provide him with ‘a secure environment in which he can develop, and otherwise to meet his needs’. The local authority and the guardian would say that the court has sufficient evidence to conclude that they do not have the ability and that final orders should now be made. Are they right? Given that there has been no risk assessment of the mother, no real consideration of whether, with support, she could care for T to a good enough standard, of whether that support can be made available; given that there has been no completed assessment of the father and paternal grandmother; and given, too, the uncertainties concerning T’s health and development, can the court, justly and fairly, arrive at a clear answer to that question?

Conclusions

136. In my judgment, the answer to that last question is ‘no’.

137. Section 32 Children Act 1989 requires that proceedings such as these be completed without delay and in any event within 26 weeks. Although the court has the power to extend a case beyond 26 weeks the power to do so may only be exercised if the court is satisfied that an extension is necessary to enable the court to resolve the case justly. Had it not been necessary to adjourn the final hearing listed in December this case would have been completed within 26 weeks. As it is, the need to know the outcome of the MRI brain scan led to an inevitable and necessary extension to the timetable.

138. The case has now been ongoing for 42 weeks. It ought to be completed now if it is possible to do so justly. With regret, I have come to the conclusion that it is not possible to complete the case justly at this stage. I arrive at that conclusion for four reasons.

139. Firstly, I am concerned about the lack of investigation into T’s physical behavioural and developmental difficulties. Even if the court makes a placement order it is difficult to see how he could in fact be placed when there is so little understanding of the causes of his difficulties and no prognosis. There is also a need to understand the risks to T’s future development arising from the fact that both of his parents have significant diagnoses concerning their mental health.

140. Secondly, I am concerned that in ruling out the mother insufficient credit has been given for the real and sustained progress she has made since T was born. His birth appears to have motivated her in a very positive way. Dr A’s evidence suggests not only that the mother may be able to care for T but that she may be able to do so whilst still undergoing therapy. Whilst I understand the local authority’s concerns about risk, the reality is that there has been no assessment of risk and no consideration has been given to whether, and if so what, services could be provided to guard against or minimise that risk.

141. Thirdly, whilst I understand the local authority’s concern at the change of heart by father and paternal grandmother, I am not persuaded that the robust approach suggested by the local authority is the right approach in the circumstances of this case. In arriving at that conclusion I have in mind, in particular, that the outcome now contended for by father and paternal grandmother is precisely the outcome which commended itself to this local authority only a few months ago.

142. Fourthly, I am concerned that the local authority’s case has not been prepared in a way which is compliant with Re B-S (Children). Until the amended final care plan filed on the last day of this hearing the local authority had not even attempted the kind of analysis envisaged by Re B-S (Children).

143. I have come to the conclusion that the only way forward is to adjourn this final hearing to enable further investigations to be undertaken. That will require me to further extend a timetable which has already been significantly extended. In arriving at that decision I have fully in mind the provisions of s.32 Children Act 1989. I am satisfied that an adjournment is required to enable the court to resolve these proceedings justly. I accept that there may be some detriment to T’s welfare by allowing that extension. However, I am satisfied that that detriment is as nothing compared with the potential injustice of separating him permanently from his birth family based on evidence and evaluation which is plainly incomplete.

144. The gap in the evidence needs to be filled by further expert evidence. Section 13(6) of the Children and Families Act 2010 provides that the court may only give permission for an expert to be instructed ‘if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. For the reasons I have given I am satisfied that in this case the following additional evidence is necessary in order to resolve these proceedings justly:

i              a full paediatric assessment of T by a neuro-developmental paediatrician;

ii            an assessment of DG and BG by an independent social worker;

iii          a psychological risk assessment of the mother

Every effort should be made to obtain this additional evidence within the next 8 weeks.

145. To enable a robust and properly informed assessment of father and paternal grandmother by an independent social worker it will be necessary for contact between T, DG and BG to be restarted. I will hear submissions on the frequency, duration and oversight that is appropriate. I am acutely conscious of the fact that the reintroduction of contact may initially be unsettling for T. However, I can see no other way in which DG and BG can be fairly assessed. The assessment must be real and not token.

146. I do not at this stage direct that the mother’s contact with T should be increased. However, in the letter of instructions to the appointed psychologist, the expert should be asked whether it would assist the process of risk assessment for contact to be increased.

147. Once these reports are available the local authority may need to reconsider its position. The final care plan may need further amendment. Their will need to be social work evidence that complies properly with the requirement of Re B-S (Children). There will need to be updated evidence from the parents and grandmother. There will also need to be a further report from the guardian. That report, too, must be compliant with the requirements of Re B-S (Children). All of this requires careful, detailed and robust case management. Everyone should be clear that it is my intention to strain every sinew to ensure that this hearing is completed by the end of July.