England and Wales Family Court Decisions (other Judges)

 

 

Case No: LS14C00533

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 X (A CHILD)

Date: 7 August 2015

 

Before :

 

HHJ Lynch

 

 

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Between :

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Mark Stout for the Applicant

Jonathan Bush for the 1 ^st Respondent

Louise Noblet for the 2 ^nd Respondent

 

Hearing date: 7 August 2015

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APPROVED JUDGMENT

 

Introduction

1. In these proceedings I am concerned for X, dob 18.12.12 and therefore aged 2 ½ years old. His mother is A but the identity of his father is unknown. The DNA of the man whose surname he bears and who is named on his birth certificate was tested in these proceedings and it was shown he was not X’s father. As a result of that I made a declaration of parentage to enable his name to be removed from X’s birth certificate. Two other possible fathers who were named by A have been approached by the local authority; one declined to be tested and the other has not responded. A then suggested another possible father who was spoken to by a social worker; he said he was unsure if he was the father but did not want to find out. That leaves me today in the position where I have no way of knowing who X’s father is.
2. These proceedings began with a police protection order being made on 28 November 2014. At the time there were serious allegations in respect of the mother, now not relevant to these proceedings, and the police had become involved. The local authority began these care proceedings and the case first came before me on 4 December. At that time an interim care order was made. X was placed at the time with C and Ds, his maternal uncle and his partner, but they were clear they could not offer him a long term home so viability assessments were directed of family carers. The case was next in court for a review on 11 December when a further viability assessment was ordered. A psychological assessment of the mother was also directed. Shortly after that the case was timetabled through to a final hearing on 19 May.
3. The night before the scheduled final hearing E, a maternal uncle, contacted the local authority saying he wanted to be assessed to care for X. The professionals understandably were concerned at the very last minute nature of this offer but equally were conscious that the only alternative for X was adoption. I suggested therefore that the case was stood down and E was asked to come to court to meet the professionals. That way I felt they could form a view as to whether it would be worthwhile delaying making final plans for X to enable his uncle to be assessed. The social worker and guardian after meeting E and his partner felt that there should be an assessment and I therefore agreed to extend the timetable for X to allow that. I was very conscious that that the need to avoid delay for children means courts aim to finish cases in twenty six weeks but for X if there was any possibility of him growing up in a family, who on the face of it had much to offer him, I had to explore this final option. Unfortunately that couple subsequently separated after an incident of domestic violence and the assessment ended, leaving no other family care options for X. This hearing was listed, to give the mother a final opportunity to instruct her solicitors and for the case to proceed on a contested basis if she came to court, and she has done so.
4. Contact has been offered to A since the start of proceedings. Unfortunately she was unable to commit to turning up regularly to contact, even after it was reduced from four to two ninety minute sessions each week, and by May of this year she had attended only about half of the sessions offered. X was initially quite distressed by this so he is now only taken to contact sessions after his mother has reached the family centre. I understand contact is now weekly and A says she has been able to commit to attending that.

Background

5. The local authority first became aware of the family in February 2014 when an anonymous referral was received, which expressed concerns that X was neglected, being left in dirty nappies, was eating out of a dog bowl and that he was left with various different people whilst in the care of his mother.
6. Four months later a referral was received from a doctor at A & E who was concerned that X had presented with a vertically torn fraenulum. A told the paediatrician that she was changing him and he fell forward. The paediatrician felt that the explanation did not match the presenting injury. Subsequently Children’s Services conducted a home visit when the maternal grandmother gave an appropriate explanation for the injury, saying the mother had not been present when it happened, and the grandmother’s explanation was accepted.
7. A Child and Family Assessment was completed on 27 June 2014 which recommended that A required further support in relation to her parenting and a referral was made to the Family Centre. Staff there reported that she made only limited progress. Further concerns were also raised about poor home conditions, behaviour management, and a number of unknown adults visiting the property, as well as concerns regarding her general parenting ability. A also failed to make herself available for a number of scheduled appointments with social care staff.
8. The next significant event occurred on 19 October 2014 when X was made subject to police protection . A attended A&E as she was experiencing pain. She had taken X with her and whilst there ward staff became concerned about his appearance. He was examined by a paediatrician and was discovered to have approximately thirty bruises to his body. The majority of bruising was on his shins and it was felt could be explained by him bumping or running into furniture. However X also had grip marks on his arms. A s47 investigation was undertaken which concluded that A was struggling to manage his behaviour and there was a lack of supervision, the grabbing marks being considered to be attempts by her to control X’s behaviour. X was subsequently made subject to a Child Protection Plan on 7 November 2014. The PLO process was initiated and the first meeting was scheduled for 3 December 2014.

The Issues

9. In preparing for this hearing I have read the full bundle of papers provided to me in this matter. This hearing was scheduled to be a final hearing in respect of arrangements for X, listed for contested hearing in case A wished to oppose the plans as she did not attend the last court hearing or give her solicitors any instructions. She failed to file any final evidence, not having attended a number of scheduled appointments with her solicitor, but has come to court today and I heard submissions from her solicitor.

The position of the parties and the evidence

The local authority’s position

10. The local authority has attempted to carry out an assessment of A in these proceedings but without success. The reason for this is that, in the psychological assessment by the psychologist, it was concluded that A was of such a low cognitive ability that she should be considered to be within the strict diagnostic criteria to diagnose a learning disability. As a result the local authority agreed to carry out a PAMS assessment, a specialist assessment designed particularly for parents with learning disabilities, to give A the best possible chance. However that assessment could not progress because the mother missed a number of appointments with the social worker. What became clear was that she did not accept the assessment of her cognitive ability and therefore refused to engage in the PAMS assessment. At no point has she applied for another assessment, but even if she had done so I would have had to refuse it as I have no reason to doubt the expertise of the psychologist in this field and her assessment is that A has a learning disability. It is crucially important that parents with such a disability are assessed and taught in a particular way which is the purpose of a PAMS assessment.
11. I have read the psychologist’s report carefully in respect of A. In terms of A’s ability to meet her son’s day to day needs, she said : “She was unable to talk about his needs other than that he should not be around people who are a danger to him. A displayed limited awareness of these dangers however and talked about people she knew that could be perceived as a danger such as drug dealers advising her to take X away from them, rather than her using her own discretion. In terms of his day to day needs, a significant factor in this is his safety, which A did not report to comprehend fully during assessment. Therefore, currently, it is my opinion that A would struggle with this aspect of his care. A also has a learning disability. Her ability level is low. This diagnosis does not preclude a parent from meeting their child’s day to day needs, however, this combined with A's insight places her at a disadvantage in developing an understanding of X’s day to day needs and developing appropriate strategies to enhance his care. It is therefore, my opinion, that currently, A is unable to meet X’s day to day needs. I do not feel this could be currently mediated with support unless support was 24 hours a day, every day.” [F37]
12. Very importantly, looking at her capacity to change, the psychologist pointed out that A did not accept any need to change, not seeing any significant problems with the way she cared for X. As a result, the psychologist concluded A did not have the ability to accept the need for change, to make the necessary changes and to sustain them, such that she could provide good enough care for X.
13. The local authority as I said have been unable to carry out a full assessment of A as she refused to engage with the PAMS assessment. I considered a statement from a community resource worker who had prepared a report towards the end of 2014 for the initial child protection review, recording how the mother struggled to meet X's basic care needs. It seems from that and other documents I have read that when A’s mother was alive she did a lot of the caring for X, something B, the maternal grandfather, confirmed to social care staff, and this is certainly very evident from the report of the health visitor. Sadly his grandmother died unexpectedly in August 2014. B could offer less practical support due to working away and it seems around this time the care of X deteriorated.
14. Having read the report of the community resource worker it is evident A has struggled to give X the level of care he needs. A comes over as a very vulnerable woman functioning at an age lower than her chronological years. The paediatrician reported when she took X to hospital in October 2014 she went with two “14 year old friends”, whom I note were then picked up by an older Asian gentleman. This links to information in the community resource worker’s report, that when she had been visiting A there had often been a number of young people at the house and the community resource worker had told the mother they should not be caring for X, for example when she went to see her partner in prison. However A told her subsequently she had left X with a thirteen year old when she went to see this man. There was also an anonymous referral regarding concerns in August 2014, which had included a suggestion that A was in a relationship with a thirteen year old boy. A acknowledged he was a friend but she said she was not in a relationship with him. Then there was also a phone call from the maternal grandfather in May 2014 when the mother had left the home and gone to stay with two teenage children and he was concerned for X’s welfare. When the police went to the property there was no adult present other than the mother and there were no appropriate sleeping arrangements so they took X back to the grandparents’ home. It certainly seems clear from all the evidence I have read that A’s friendship group comprises teenage children, not what one would expect from a twenty five year old woman, and that she does not grasp the inappropriateness of this in relation to her responsibility for her son and his care.
15. On a number of visits the community resource worker saw that X was grubby, particularly his feet. A said this was because her son did not like having his shoes and socks on but that she bathed him in the evening. Again I noticed this issue was raised by the paediatrician, who talked of A and E staff having to clean X up and nonetheless his feet still being ingrained with dirt. Again, in August 2014 when the community resource worker attended after an anonymous referral, X was got up by his mother and was dirty at that point, despite presumably on the mother’s account having been bathed before he went to bed.
16. The community resource worker's assessment also itemised concerns regarding the state of the home, of X's bedding which at times was dirty and on other occasions was entirely missing, huge piles of clothes being piled up around the place, and X having soiled nappies, once being seen with dried faeces on his bottom. On a visit in August 2014 the toilet was blocked with paper and faeces and was close to overflowing. On visits A could talk about issues around safety but she needed continued support to identify safety issues and the importance of supervision. She also struggled to put what she could express into practice in terms of issues of safety around the home. Similar concerns were noticed by the community worker in supervised contact, A often being distracted herself playing with toys or talking to staff such that she was unaware of risks to X.
17. Again, looking at the report regarding contact, it was clear that guidance and boundaries remains an issue for A, with her often becoming angry and struggling to manage X’s behaviour. On one occasion she smacked him after he hit her. Staff advised her not to do so as it gave him the message that smacking was okay. A's reply was “This is why I can't handle him on my own”.
18. I also considered a medical report from a paediatrician who saw X when he was taken to hospital in October 2014. He recorded thirty one marks on X as well as cuts on the inside of his lower lip, and observed that X's feet were ingrained with dirt. He noted that the majority of the bruising to his lower shins and some bony prominences were consistent with accidental injury but he was troubled by the number of these injuries. He said this caused him significant concerns in terms of supervision, managing boundaries and safety. He was also troubled by patterns of bruising on the outer aspect of each forearm which he said could suggest fingertip bruising from being held. He had noticed X being handled heavily by his mother when she was trying to get him back into his cot. He said : “I can certainly understand how this may not be malicious; however, the force used to do this if excessive could cause this pattern of bruising.” [F21] He went on to speak about his significant concerns regarding A's parenting capacity and her ability to provide a safe environment for her son to thrive.
19. It had been hoped by the local authority that a family placement could be identified for X. During these proceedings he has been cared for by a maternal uncle and his partner but they have always been honest about the fact they could only offer him short-term care due to their own commitments. The focus for long-term assessment was B, the maternal grandfather, who seemed very committed to caring for X. However after his assessment concluded positively he made the very difficult decision that he could no longer offer to care for X as he had lost the support of extended family which was essential for his plans.
20. Sadly the withdrawal of the grandfather from the assessment process left the local authority with no option but to issue a placement order application in respect of X. X's social worker in her final statement looks at the options for X and concludes there is no other option for him but adoption, given the mother's inability to meet his needs and the lack of any family placement. Long-term foster care is discounted given X's very young age and the fact that he should be given the opportunity of permanence through adoption.

The mother’s position

21. A has not prepared a final statement nor has she attended many of the court hearings. She failed to attend the issues resolution hearing but made contact with her solicitor that afternoon and he agreed to see her at short notice. He explained to her the local authority's plans and the likely outcome given that the local authority was seeking adoption. A was distressed and was not willing to prepare a statement setting out her views that afternoon. She agreed to come back but failed a number of subsequent appointments. She did not come either to the last hearing, when it was clear there were no longer any family options, although she had suggested to her solicitor a friend who might be willing to care, that woman not having subsequently answered the phone to the social worker.
22. Today A has come to court and through her solicitor has told me what she wants. In simple terms, she would very much want to care for X but accepts she is not in a position to do so. At the moment she lives in a hostel which she knows would not be a suitable place for X and there is no immediate prospect of her getting better housing. She does not accept what the local authority says about why she cannot care for X but she acknowledges the evidence I have read and that it is likely in light of that I will make the orders the local authority seeks. Therefore, although it is not what she wants to happen, she is not opposing me making the orders today, whilst not agreeing to them either, and I have not been asked to hear any evidence at this hearing.

The guardian’s position

23. X's children's guardian supports the local authority in their plans for X and I have considered her final report very carefully. She looks at the assessment of the psychologist as well as the evidence of the paediatrician and the local authority. On the basis of that evidence she observes very fairly that A's “lack of cognitive ability is likely to be a contributing factor to the harm X has suffered in her care, rather than a wilful act of neglect on her part. It appears that A lacks capacity to provide for a dependent child without intensive 24 hour, seven days a week, supports being made available to her” [F52].
24. From her own recent meeting with A, she observes, as the local authority had found, A seeks to deflect from her own situation and from what she would need to do to make the change professionals see is required. She has not been able to attend contact with her son consistently, nor is she able to see how this would impact on him. She does not see any responsibility for her son's situation and sees no reason to do anything to change her parenting skills. That lack of motivation to change is of great significance to the guardian as without it X's situation would be no different were he to be returned to his mother's care.

Threshold

25. The local authority invites me to find that the facts contained in its draft threshold document were met at the time these proceedings began. I raised some concerns about whether the evidence as filed entirely supported one finding as drafted and having considered my proposed redrafting of that paragraph the local authority indicated it was content for me to consider threshold on that revised basis. I am therefore invited to make the following findings as to the situation when this case began :
1. A’s home is frequented by young people, some of whom she has allowed to babysit X. Advice has been given that this is not appropriate but she has failed to act on that advice.
2. A has neglected X’s basic care needs whilst in her care. This includes :

(a)     Poor home conditions.

(b)    A’s inability to supervise and appropriately manage behaviour : X has suffered a number of injuries due to inadequate supervision and inappropriate methods of managing behaviour.

(c)     The basic standard of care afforded to X : professionals have noted X to be in an unhygienic condition and inappropriately dressed.

3. A has failed to make appropriate progress with the input of professional services provided by Children’s Social Care and has failed to engage adequately with those services.
25. I remind myself it is the local authority that brings these proceedings and identifies the findings they invite the court to make, therefore the burden of proving the allegations rests with them. The standard of proof is the balance of probabilities. Findings of fact must of course be based on evidence.
26. A has chosen not to file any evidence contradicting that filed by the local authority in respect of threshold. Having considered the written evidence very carefully and heard her solicitor’s submissions, I am satisfied that the evidence I have set it out in this judgment justifies the making of all of these findings as sought and I do so.

Decision

28. I now turn to consider what orders if any are in the best interests of X. 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 that 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”.
29. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said : “Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
30. 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 X, taking into account the assistance and support which the authorities or others would offer.
31. In reaching my decision X’s welfare throughout his life is my paramount consideration and I must 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.
32. A placement order is sought by the local authority in respect of X. The court cannot make a placement order unless the parent has consented or the court is satisfied that the parent’s consent should be dispensed with. A court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” consent to be dispensed with. In that context I am conscious that “requires” means what is demanded rather than what is merely optional.
33. The central question I have to ask myself in this case is whether X’s needs can be met in the care of his mother or if not, in the absence of any possible family placement, whether I should make a care order approving a plan of adoption and a placement order. I have to balance the pros and cons of each of the realistic options . 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 welfare checklists contained in both CA 1989 and the ACA 2002, and propose to consider the evidence in the light of those factors.
34. The focus for me in making decisions in this case is what X's needs are and who is able to meet those. His needs are the same as those of any other small child who is totally dependent on his carers. He needs to have his primary needs met including being clean and appropriately dressed, living in a house which is kept adequately, attending medical appointments, and other such matters. He needs to be kept safe, both from any risky individuals and from physical harm. He needs to have his behaviour managed in an appropriate way, so he grows up able in due course to understand the importance of managing his own behaviour.
35. Looking at his mother's ability, I am afraid the reality is that I agree with the professional assessments that A is unable to meet X’s needs, as demonstrated by her difficulties since August last year. I have considered carefully whether anything could be done to improve A's ability but I am afraid she does not see the need to change and therefore one could not be optimistic that she would be able to achieve this. I agree with the psychologist that she would require support all day every day, the kind of support her mother seems to have been able to give when she was alive but which is now no longer available within the family. It is not realistic to expect professionals to provide that same level of full-time support and any lesser degree of support would not be sufficient, nor do I think it would be taken up by A.
36. X has suffered harm in the past, in line with the findings I have made in respect of threshold, and I am satisfied he would suffer the same harm were he to be returned to the care of his mother.
37. I acknowledge the plan of the local authority to place X in foster care means change and that will be difficult for him. Inevitably there will be some harm to him as he will not understand why he is leaving the care of his uncle and aunt, but I am satisfied the local authority will do this in the best way possible. Weighing up that harm against the harm he would experience returning to the care of his mother, I am satisfied it is by a long way the lesser of two evils.
38. There are then two linked factors I must consider in respect of the plan of adoption. The first is the likely effect on X throughout his life of having ceased to be a member of his original family and become an adopted person. Related to that, I must look at the relationship which X has with his relatives including the likelihood of any such relationship continuing and the value to X of it doing so; the ability and willingness of any of the child’s relative to provide the child with a secure environment in which the child can develop and otherwise meet the child’s needs; and the wishes and feelings of any of the child’s relatives regarding the child. Very sadly here no one in his wider family is able to care long term for X, despite the involvement of one uncle and his grandfather in his life to date. I am sure it has not been an easy decision for either of them, knowing it means X losing his birth family, and I respect them for acknowledging their situations and know that in making their decisions they nonetheless want what is best for X.
39. I acknowledge that inevitably making a placement order will make it impossible for X to continue to have a meaningful relationship with his mother, his uncle who has cared him, his grandfather who has had significant role in his life, and with the rest of his family. I cannot pretend that that is not a loss as the proposed indirect contact, which I accept is all that is realistic if the security of an adoptive placement is not to be undermined, cannot possibly replace a real relationship. However family members have decided not to pursue caring for X and I have to balance the loss of these relationships with the many other significant factors in X's case.
40. Looking then at the options I have, placing X back in his mother's care would lead to him suffering inevitable harm, harm which I am satisfied could not be managed, and his needs would not be met. He would I acknowledge be in the care of his birth family and would grow up with a proper understanding of his origins. The alternative is the making of a care order with a plan of adoption, which has the advantage of providing X with a permanent secure home where all his needs will be met, although I acknowledge it means a loss of relationships with not just his mother but his maternal uncle and his partner and the maternal grandfather, who are all significant people in his life. I acknowledge that loss but it has to be outweighed by the importance of him having a secure permanent home. I also acknowledge such a plan is a breach of this family’s Article 8 rights but again it is a proportionate decision and in X's best welfare interests.
41. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of X being returned safely to his mother’s care, and that his needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority’s final care plan for X, including the plan for him to move into foster care prior to an adoptive placement being identified and the plan for reducing contact between him and his mother, is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in his best welfare interests. I therefore make a care order.
42. In relation to the application for a placement order, I am satisfied that X’s welfare requires me to dispense with the mother’s consent to placing him for adoption, the word “require” here again having the Strasbourg meaning of necessary, “the connotation of the imperative”. Although the man whose name appears on his birth certificate if it has not yet been rectified in theory has parental responsibility, it is my view that he is not a respondent to the placement order application as he is not, as described in the Act, a “parent with parental responsibility”, as shown by the DNA testing. I am therefore the view I do not need to dispense with his consent but, were I to be wrong on the law in that regard, I would dispense with his consent to placement for adoption given that he is not offering a home to X nor does he have any relationship whatsoever with him. I therefore make a placement order authorising the local authority to place X for adoption.
43. 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 X up. I propose therefore to make a direction that this judgment must be released by the Local Authority to X’s adopters so that it is available to him in future life.
44. Finally I also make an order for public funding assessment for all the respondents in this matter and reserve any future applications regarding X to myself. 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.

 

THRESHOLD AS FOUND

1. A’s home is frequented by young people, some of whom she has allowed to babysit X. Advice has been given that this is not appropriate but she has failed to act on that advice.
2. A has neglected X’s basic care needs whilst in her care. This includes :

a.        Poor home conditions.

b.       A’s inability to supervise and appropriately manage behaviour : X has suffered a number of injuries due to inadequate supervision and inappropriate methods of managing behaviour.

c.        The basic standard of care afforded to X : professionals have noted X to be in an unhygienic condition and inappropriately dressed.

3. A has failed to make appropriate progress with the input of professional services provided by Children’s Social Care and has failed to engage adequately with those services.