England and Wales Family Court Decisions (other Judges)

 

                                                                                                Case No: VA13C00147 

 

IN THE FAMILY COURT SITTING IN LEEDS

 

IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

 

AND IN THE MATTER OF A, B AND C (CHILDREN)

 

Date:  4 June 2014

 

Before :

 

HHJ Lynch

 

 

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Between :

 

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Catherine Mason for the Applicant

Huw Lippiatt for the 1^st Respondent

Heidi Fleming for the 2^nd Respondent

Jennifer Heckingbottom for the 3^rd Respondent

Lynn Crabtree for the 4^th – 6^th Respondents

 

Hearing dates: 2 and 4 June 2014

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JUDGMENT

 

 

Introduction and background

1. In these proceedings I am concerned for three children, A (5 ½ years old), B (aged 2 ½ years old) and C (aged just under one).  The mother of all of the children is M. A’s father is Father One (F1); he was given parental responsibility for her at the last hearing on 23 May.  B’s father is Father Two (F2) and he shares parental responsibility with B’s mother. It has not been possible to identify the father of C, F2 and another possible father having been excluded by DNA testing. M and F2 have an older child, X (dob 17.8.06), who lives with her father. X is autistic and F2 is supported by the local authority in his care of her.  She is not involved in these proceedings, there being no issues about F2’s care of her.  
2. The local authority applied for care orders in respect of all three children early in November of last year, the children having been voluntarily accommodated on 7 October, and has since applied for placement orders in respect of B and C.  Interim care orders have been in place in respect of the children since 5 November 2013. The children are all in foster care, B and C placed together.  The mother has been having regular contact each week with all the children, though it has reduced with B and C since she made a decision not to seek their return to her care.  F1 has contact with A but F2 is not having contact with B due to him making a decision not to pursue caring for B. F2 had only had contact with B once prior to that decision and felt it would not be right to continue contact in those circumstances, only for it to end at the point of adoption causing yet more loss to B.
3. The local authority have been involved with the family since 2012. A and B were made subject to child protection plans under the category of physical abuse on 21 May 2012. A core assessment was undertaken, which identified that whilst M could meet the physical care needs of her children, there were concerns regarding reports that she was very aggressive towards A. Further concerns were raised in respect of A self-harming, as she had been observed to scratch her skin until it bled. M’s ability to safeguard her children was an issue as she had allowed contact to take place with her family who pose a significant risk, due to a history of physical abuse, neglect and sexual abuse. M had also failed to provide the children with stability by moving to different areas regularly meaning A had had to change nursery frequently.
4. A pre-birth assessment was undertaken on June 2013 in respect of C when concerns were again raised. There were then three section 47 enquiries undertaken in relation to bruising to A. The first in August 2013 was undertaken as a result of A suffering bruising to her neck, which she alleged had resulted from another child strangling her. M did not inform the social worker of this incident until three days later. The paediatrician stated that the bruising could be consistent with M and A’s explanation; however, it could not be said who had perpetrated the injury.
5. A further section 47 enquiry took place on 23 September. A had soiled herself at school and it was noted that she had bruising to her thighs. A informed the social worker that her brother had caused the injury, however M blamed another child. The paediatrician stated that the bruising was likely to have been caused by a child.
6. The next section 47 enquiry took place on 7 October. A’s school had noted that she had bruising to her face, which she claimed her mother had caused playfully and that her grandparents were present at the time. The paediatrician was of the view that there was evidence of inflicted and accidental injury and raised concerns as to A’s reluctance to allow examination of her genital area. Concerns were further raised in respect of emotional harm and neglect. Following this final enquiry M agreed to the voluntary accommodation of the children
7. Following their accommodation a medical examination in respect of B was undertaken on 8 October by a paediatrician who noted injuries to B. He was of the view that his injuries had resulted from either biting or pinching and could have been caused by either an adult or a child. The paediatrician felt that there was evidence of physical injury, neglectful parenting through lack of supervision and control of behaviour as well as emotional harm as B said he had been instructed to retaliate and get his sister back.
8. The local authority issued proceedings early in November. At the first hearing on 5 November the case was timetabled through to a final hearing in March. Various directions made including viability assessment of family members and DNA testing. A psychologist, Liz Hall, was also instructed to assess the mother. The matter came back before me on 29 November when the final hearing had to be adjusted slightly by a month. Again at a hearing on 5 February 2014 the case had to be re-timetabled to allow the psychologist to also assess A and B given concerns regarding their behaviour. At that point this final hearing was listed. By the time of the issues resolution hearing on 23 May it was clear the issues that remained between the parties related solely to A and so the time estimate for this hearing was reduced.
9. In preparing for this hearing I read the full bundle of papers provided to me in this matter.  The case was anticipated to be contested in terms of the plans for A but on Monday discussions between the advocates narrowed the issues considerably. I came into court twice during the afternoon to hear from the advocates and having discussed matters the parties were able to resolve the remaining issues. The mother accepted an amended care plan for A, the details of which I shall come back to, and it seemed that threshold could be resolved. On that basis the contested hearing did not start. Instead it was agreed that yesterday would be utilised for the local authority to produce an amended care plan for A and hopefully an agreed threshold document. I am pleased to note that threshold has today been agreed between the parties and I am happy to approve the document as drafted.
10. On Monday I indicated that, given that the mother was not consenting to the plans for the children but would offer no active resistance, it was appropriate for me to produce a judgment, to explain to the boys in the future why they had been adopted and indeed to explain to A why her family had been broken up in the way it will be.

The position of the parties and the relevant evidence

11. At the outset of this hearing the local authority was of the view that none of the parents at this time were in a position to offer homes to any of the children and that remains their position. I shall return shortly to what the local authority says about the mother in particular and her capacity to meet the needs of any of her children. The local authority's position and indeed his reasoning was adopted by the children's guardian so I shall look at their position jointly.

B and C

12. Looking first at the plans for B and C, the local authority, supported by the children's guardian, recommends they should be adopted. The local authority therefore invites me to make care and placement orders in respect of the boys. The plan would be to look for an adoptive placement for the boys together but it is acknowledged that it may be difficult to find a placement particularly for B given his difficulties. If after six months a placement for the boys together has not been identified, a placement will be sought just for C on his own, with B remaining in long-term foster care. If the boys are adopted the plan would be for annual letterbox contact between them and M, F2 and their sisters. If B remains in long-term foster care the plan would be for direct contact with his mother, father and sisters three times a year.
13. The plans for B and C are not opposed by their parents.  Their parents were asked to indicate at an early stage if they reached a decision that they would not seek to care for the boys. M decided not to oppose the plans for the boys; F2 has been able to give his active consent to the adoption of B. Having learned he was B’s father, F2 had wanted to be assessed to care for him. However having spoken to the social worker about B’s behavioural issues he realised that, given X’s particular needs as a child with autism, he would be jeopardising her placement if he were to try to care for B as well. He was also able to realise that he has his own issues in respect of depression and felt dividing his time between his children would limit his ability to meet the needs of two demanding children. He made the very difficult decision that the best thing for B, and indeed for X, would be for him to have the chance of a permanent and secure family together with his brother. Very few parents are able to take such a step, understandably so given the message it is feared that consent to adoption gives to a child, but in doing this F2 has shown his ability to be entirely child focused and put his own feelings on one side.
14. Similarly, M in not opposing the plans for the boys, also made a very difficult decision. She acknowledged that she had struggled in meeting the competing demands of the three children and in particular managing B's behaviour. She felt that removal of the children, particularly C at such a young age, had affected the bond between her and the boys. She had hoped a place within the paternal family might be possible but even when it became clear the plan would be one of adoption she was able to leave that decision to me, offering no resistance. I do not underestimate how hard that has been for her. Both parents are to be commended for allowing the boys to have the best possible future.
15. There was a debate as to whether I could make final orders in respect of the boys at the last hearing. However to make care orders I would needed to be able to deal with threshold, to be able to set out clearly why I was approving the plans I was. M, although she was not opposing the plans, had not been able to agree that the threshold for the making of orders was met to the level required and therefore final orders in respect of the boys also had to be left to this hearing.
16. I have mentioned already the fact that B has his own needs which may impact on the possibility of the boys being placed together. There is evidence of this in the local authority's statements, particular that of his foster carer, but also in the report of Dr Hall.  She says : “With regard to B, there are four major areas of difficulty.  Firstly he has major attachment problems.  Secondly, he exhibits delay in physical, speech and play skills.  These should be developed in the placement and within nursery.  He is having speech therapy.  thirdly, he shows major problems with aggressive behaviour which is currently targeted on his female foster carer.  This includes self-harm.  Finally he has issues with food.  Some of these behaviours are being tackled within the placement which is the right place for him to change his behaviour.  Consistent well boundaried parenting of above average levels will go a long way towards stabilising him.  He does need help with speech through continued speech therapy  He will also need nurture groups at nursery and possibly subsequently at school.” 
17. She continues : “The placement for B is likely to need ongoing support.  This should be provided to his carers now and ultimately to his final carers with support from an appropriately trained clinical psychologist or child therapist.  He will require individual therapy once he is placed finally to deal with his behaviours but the placement is likely to be the biggest source of help for him in the short and medium time frame.” 
18. Given this evidence regarding B it is clear that F2 is right to conclude that B being placed with X would be disastrous for both of them.  B is going to need very good parenting and for some time will present challenges.

A

19. The main focus to me for this hearing has been the plans for A. The local authority says that A cannot return to her mother’s care, due to A's needs and her mother's inability to meet them due to her own difficulties. The local authority in its assessment of A's needs relies on the evidence of Dr Liz Hall, the psychologist jointly commissioned in this case. It also relies on the evidence filed by A’s school and by her foster carer regarding her behaviour. I am not going to set it out in great detail here but certainly her behaviour is very troubling and both her parents acknowledge that.
20. Dr Hall’s assessment in respect of A makes for worrying reading. She says : “A… has experienced physical and emotional abuse and may have experienced possible sexual abuse or witnessed sexual behaviour inappropriately given the extent of her sexualised behaviour.  She has also experienced neglect of her needs.  She has also witnessed domestic violence in her mother’s relationships.

In this context she has developed an attachment style that is at best an insecure ambivalent attachment, but at times seems more disorganised.  She has learnt to cope by manipulating and controlling others but this seems at times to lead to sexualised behaviour with other children.  She is highly responsive to adult attention.  It is likely that she learnt these patterns of behaviour within her family.  As she has settled more into the placement, these behaviours have become less problematic as clear boundaries have been set. 

Her poor attachment style is demonstrated in her lack of awareness of the potential danger to strangers, and her very rapid formation of an attachment to the other children in the foster placement and to the foster carer.  She demonstrates little wariness.  She also tends to need to control others so that she can be in charge of what happens.  This is likely to be a defensive reaction to feeling emotional or out of control.  It has worrying implications for her relationships for the future.”

21. She continues : “A is a child with complex needs in terms of above average levels of parenting, where there is a good understanding of attachment, its importance and how to ensure that she is able to develop the much needed secure attachment.  She also needs strategies to deal with her anxieties including being separated from her family and particularly her mother and siblings if she is placed outside her mother’s family.  She needs consistent help with her soiling and sexualised behaviour and this is likely to require A to engage in therapeutic work around these issues.  Whoever cares for A in the longer term needs to be fully aware of her needs and the demands on carers.  She also needs further help with her social skills and relationship building skills.”
22. Later in the report she expands on this : “A shows soiling and sexualised behaviour.  She will need to be taught appropriate interpersonal boundaries and self-protection skills as well as information about appropriate physical boundaries and eventually sexual boundaries.  This is work that should be done within a therapeutic environment in conjunction with other relationship and social skills.  In addition she will need to have help managing her anxieties which may have contributed to her soiling.  If this becomes a problem again, careful records should be kept of the potential triggers for her behaviour.  It is likely to be difficult for A when she learns of the real reason for her being in placement, and when the final decision is taken about her future.”
23. The local authority concluded that, given this assessment, A’s needs could not be met in the care of her mother. In reaching this conclusion it relied on Dr Hall’s evidence but also its own parenting assessment of M. Whilst Dr Hall’s first report contained positives, when she assessed the children she concluded that placement with her mother would not be the right outcome for A. She said : “I had previously considered whether M could have the children returned and given the progress she had made was cautiously optimistic…... However, A has learnt many ways of reacting to people and relationships from her mother that now makes me consider that she needs parenting at a high level without fear of M’s unstable patterns of relationship, mental health and post-traumatic reactions returning to affect this child’s development more.  In addition, her soiling and sexualised behaviour will require consistency, boundaries and specialised parenting and therapeutic work for her to overcome.”
24. The parenting assessment carried out by Jo Kyle is also a key document. Ms Kyle acknowledged positives including the significant commitment by M to contact with A and her evident love of her daughter, including evidence of a warm relationship in contact. Concerns were expressed though regarding the number of child protection medical examinations while A was in her mother's care, suggesting that M required a high level of support to ensure that A was kept free from emotional and physical harm. Ms Kyle looked at the evidence she had in respect of A's needs and Dr Hall’s evidence regarding these. She noted the fact that M was unable to say no to A and A often controlled situations. This remained the case despite M having engaged in parenting courses. Ms Kyle was clear A needed boundaries for her own emotional and behavioural development. She was concerned that M did not see the need to change her parenting style and could not see if that was the case how A's needs could be met.
25. Ms Kyle also carried out a parenting assessment in respect of F1. F1 has no other children but his most recent partner, from whom he has separated, is pregnant and due to have a baby in August. F1 says he and the mother of that child remain friends and he intends to be involved with the baby following its birth. F1 in the assessment demonstrated a good knowledge and understanding of parenting and could describe the needs A and how these would change. His parents gave him a much more secure start than that of M and they were foster parents which may also have assisted him. There were some concerns expressed about the extent to which he could understand the potential for A to demonstrate sexualised behaviour and the implications of that.
26. At the time the assessment was done the relationship between A and her father was described as being very much “still within its infancy”. Ms Kyle concluded that given the assessment of the level of care and support A would need, F1 would not be in a position to provide that to her at this point in time. His relationship with her needed to build up over a longer period of time and work needed to be completed with her as identified by the psychologist. None of that was disputed by F1 in the assessment.
27. Turning back to the present situation, the local authority’s plan is for A to remain in foster care in her current placement, and that plan is supported by the children's guardian. The local authority does not support A being placed with her father due to her therapeutic needs and the fact that her relationship with him is in its infancy.  It is open to the possibility of A moving to his care in the future if this is in line with A’s needs, dependent on how successful work is with her and on his capacity to meet her needs at that time.  F1 agrees with that plan and supports the application for a care order.
28. M’s position as set out in her final statement was that she wished to A to be returned to her care now.  At court however, having the opportunity of talking to her barrister, she was able to reach position of accepting that that would not be the right thing for A. She understood the A needed to have therapeutic work carried out that she was also very clear that she herself needed to tackle the problem she brings with her from her past. In her statement she explains how she is just beginning psychotherapy and is committed to completing this in accordance with the recommendations made by Ms Hall who assessed her. She said in her statement she realised she must do this not only for her children but also for her own well-being. In addition she plans to attend a group session which she feels would be of use to her.
29. M very much wishes to care for A in the future. She was concerned by the phrasing in the local authority's final care plan as originally drafted which appeared to preclude her caring for A, even if she successfully underwent therapeutic work. The local authority acknowledged that its position remained that it was not optimistic about that as an outcome but after discussions was able to agree an amendment to its plan. The local authority plans to commission appropriate therapeutic work to be done with A, by  CAMHS but if this cannot be done in A’s timescales then it will be funded by the local authority. At the time that that work has made sufficient change that such that consideration could be given to A living with a member of her family, the local authority will consider the options it has at that time. The local authority acknowledges that it currently felt that was more likely to mean a placement with F1 but that it would consider all options at the relevant time. If the mother wished to be assessed as a carer at that time the local authority would expect her to have engaged in therapy and to permit a suitable person from the local authority to discuss her progress with her therapist.   
30. The local authority’s plan for contact as refined at court is that A’s contact with her mother would be reduced gradually to a level of monthly supervised contact. Six of the twelve annual sessions will take place in school holidays. These sessions will be activity based and could last for up to three hours. The intervening sessions will take place after school and so will be limited to a maximum of two hours, also being activity based wherever possible. Contact between A and her father it is proposed should be unsupervised and should be weekly for two hours, gradually building up to a day’s contact.

The reasoning for my decisions

31. I now turn to consider what orders if any are in the best interests of the children.  I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family.  The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare.  In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are “very extreme”, and should only be made when “necessary” for the protection of the child’s interests, “when nothing else will do”.  The court “must never lose sight of the fact that (the child’s) interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.  I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for the children, taking into account the assistance and support which the authorities or others would offer.
32. In reaching my decision I have taken into account that the children's welfare is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and the children as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the children’s rights and be proportionate.
33. In respect of B and C, I have to ask myself whether adoption is the right outcome for them, nobody actively putting forward any alternatives. M and F2 have made a very brave decision to leave that decision to me, F2 giving his consent, but it is important that I still address the legal tests.
34. In respect to A the central question for me is whether she should be rehabilitated to her mother's care or remain in the care of the local authority under a care order with the potential of returning to the care of one of her parents at an indeterminate time in the future.
35. In considering the options for all of the children I have to balance the pros and cons of each of the options being presented to me. McFarlane LJ in Re G [2013] EWCA Civ 965 said “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.” In addressing this task I have considered all the points in the relevant welfare checklists.

A

36. Looking at A, I do not doubt what I am told, that she expects to go back to the care of her mother. Her understanding of the situation as a five-year-old is inevitably limited and I have to look at her expression of her wishes in that context. This is a case where the focus has to be on her needs and how these can be met. I set out some detail above the evidence of Dr Hall regarding A's needs and of Dr Hall and Ms Kyle regarding M's ability to meet these. Through no fault of her own M is simply not able to do this at the present time. She has her own issues from the past to address before she could give a child a parenting it needs. We are all the products of our upbringing and she cannot be criticised for being who she is. She does need however to face up to that and to get the help she requires before consideration could be given to her caring for A.  A too needs therapeutic work to help her address the problem she faces as shown in her behaviour. Her relationship with her father is very much in its infancy and he has not been able to commit entirely to contact during these proceedings due to his work. He wants to play a full role in his daughter's life and to care of her at such time as it is felt she is ready for life with one of her parents but that will need to be assessed when the time comes and he accepts that.
37. The reality for A is that there is to be no change in her immediate living arrangements as she will remain living where she is now. Contact will change as a result the decision I am to make and this will need to be handled carefully while she adjusts to a new world where she is not going home to her mother as she thinks.

B and C

38. Turning to B and C, they need a permanent secure family as soon as possible given their ages. I think the local authority are right, given their assessment of B's needs, to acknowledge that finding a placement of the boys together may not be easy but I hope very much it can be achieved. The local authority is clear about timescales it is applying and again they seem right to me. There is a difficult balancing task to be carried out between the needs of both boys as the relationship between them is significant and has the potential to be the most long-lasting of their lives.
39. The parents have made a very difficult decision, rightly so in my view, that they are unable to meet the needs of the boys. B in particular has suffered harm in the care of his mother, evident in his behaviour, and she is not able to meet his needs now. His father is not able to meet his needs given his commitment to X.
40. The local authority's plan will mean a change in circumstances that the boys but the reality is there is no alternative. The boys will move to an adoptive placement or placement in a planned way, assisted by skilled workers.
41. Adoption of B and C will mean the loss of their relationships with their mother and sister and B's case the potential for a relationship with his father and X.  Indirect contact will keep open the possibility of those relationships being resumed in the future of the boys wish it as well as giving them a real sense of their identity.

My orders

42. In respect of A, I am satisfied that a care order is the right order to make and I do so. I approve the local authority's care plan as amended at this hearing in respect of both her placement and contact arrangements, being satisfied that it is proportionate and in her best welfare interests. I am satisfied given the agreement as to the arrangements no contact order is needed and that has the advantage of enabling flexibility in the future to fit with A’s needs. I make a direction that a copy of my judgment shall be sent by the local authority to the independent reviewing officer responsible for A so he or she is very clear as to what was decided at this hearing and why. I hope it may be of some assistance in terms of future planning.
43. Turning to B and C, nobody advances a positive case for an alternative to adoption, for entirely understandable reasons.  Having considered the evidence in the light of the applicable law and carried out the balancing exercise that I must, I am satisfied that adoption is the right outcome for the boys as their needs for stability and permanence can only be met in an adoptive placement. I make care orders in respect of B and C, approving the plans of adoption including the detail regarding the time to be spent searching for a joint placement. I am satisfied that the local authority’s final care plans for B and C are proportionate and, in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002, in their best welfare interests.
44. Both F2 and M share parental responsibility for B. M is the only person with parental responsibility for C. F2 has given consent to the adoption in respect of B, that consent given in writing to the guardian at court. M however does not give consent to either adoption. I must therefore consider whether I should dispense with her consent to the boys being placed for adoption, the word “require” here again having the Strasbourg meaning of necessary, “the connotation of the imperative”.  Given that I have decided adoption is the right outcome for the boys I am satisfied that I should dispense with her consent and on that basis I make a placement order authorising the local authority to place B and C for adoption.
45. There is one further direction I wish to make.  I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life.  This judgment, in setting out what I have read and heard in court, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing B and C up.  I propose therefore to make a direction that this judgment shall be released by the Local Authority to B and C’s prospective adopters (whether they are placed together or separately) so that it is available to them in future life. 
46. I also make an order for public funding assessment for all the respondents in this matter.  I hope that my reasons as given are sufficient but if the advocates require any further detail to be given I would ask them to let me know. 
47. Can I address my final words to all the parents, but particularly M and F2. Making decisions in respect of children that they should not return home, let alone that they should be adopted, is hard enough as a judge. For parents to reach the point of accepting that must be immeasurably harder. None of us professionals can imagine how the parents feel at the conclusion of this case. Thinking about the approach they have taken to this hearing, it seems wrong to use the word “congratulate” here. Maybe it is more appropriate on behalf of the children to thank the parents for the decisions they have made. I hope my judgment will assist in ensuring that the children in the future understand why M, F2 and F1 have acted as they have.