R (A Child) [2015] EWFC B138 (14 July 2015)

HER HONOUR JUDGE MOIR:

1. In this matter I am concerned with the welfare of A, who was born on 23^rd July 2014. She is the daughter of M and F. I give this judgment ex tempore because I am fully aware that M is very pregnant, the baby is due in August, and I know that she is very anxious and distressed in relation to these proceedings. Therefore it seems to me that it is important that her anxiety and stress is not added to by reason of a delay in the delivery of this judgment.

2. The court has heard on this occasion from M, from her mother, MGM, and from the guardian. The local authority social workers have been present and available to give evidence, but Miss Fagan on behalf of M did not require to cross-examine the social workers and has accepted on behalf of M that the threshold is crossed. I have had the assistance of submissions on behalf of each of the parties. I have had the opportunity to consider the final analysis provided by the guardian, Mrs Horsey, and of course also considerable evidence in written form.

3. The local authority case is that A cannot be returned safely to the care of her mother and bearing in mind her age, as Mr Spain pointed out, in some nine days time she will be a year old, that if she cannot be cared for within her family then adoption is the only feasible option.

4. M very much wishes to be able to care for A herself and if she cannot, that A should be cared for within the maternal family who are very supportive of M and particularly the maternal great-grandparents, who have attended contact on a regular basis with M, have been able to develop a bond with A.

5. The guardian supports the local authority, although the guardian has made it clear at various stages within these proceedings that she has very much wished to be able to support the return of A to her family, not just in a general way that children are better brought up within their own families, but in this particular case the guardian’s description of contact was that when she observed contact recently, her description was it was great, she stimulated A well, she worked together with great-grandparents, it was excellent. In cross-examination by the mother, the guardian said “when I see them together, it’s good stuff. I ask and I think, we shouldn’t be separating them.”

6. I am satisfied, as I was when this matter was before me in October, that M has the ability to provide good day-to-day parenting, no concerns have ever been expressed about M’s ability to provide day-to-day care on a practical basis for A. What has also been recognised is that M has been committed to attend contact, she has not missed contact even though it has involved quite a deal of effort because of the distances involved to attend. It is clear that M loves A very much and that A has a relationship and bond with her mother.

7. It is A’s welfare that, of course, is my paramount concern. In this case, as I have indicated, threshold is not an issue. I refer to A2 in the bundle where the mother’s response to threshold is set out. It is apparent that the responses recorded therein are not accurate or truthful but, as I have indicated, Miss Fagan on behalf of the mother today has accepted that the threshold as set out is made out, and I so find. Of course therefore, if threshold is not an issue, the issue is what order, if any, should be made?

8. The options before the court are return of A to her mother’s care, placement of A within the maternal family, MGM puts herself forward if M cannot care for A, or as the local authority supported by the guardian put forward, a care order with a plan of adoption. There are a number of recent cases. There is guidance from the Supreme Court in Re B (A Child) [2013] UKSC 33, and from the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 and Re W (Children) [2015] EWCA Civ 403, and as Mr Spain referred to, Re A (A Child) [2015] EWFC 11. What is very clear from these cases is that a plan of adoption is the option of last resort, that only if it is necessary and nothing else will do should the court consider making an adoption order, that there must be a very careful weighing up of the positives and negatives, and the court must be very careful to recognise that there are many ways of parenting children.

9. The court must also bear in mind that if factual matters are challenged, that then the burden, as is always the position, is on the local authority to prove on the balance of probability that the factual situation the local authority sets out is actually made out. So for the local authority to bring this case, it is for them to prove, and to prove from original sources where at all possible.

10. As the plan that the court is being asked to approve is of adoption, the court has to have regard to the welfare checklist at Section 1(4) of the Adoption and Children Act 2002 as well as the checklist at Section 1(3) of the Children Act 1989. The court must undertake a global and holistic evaluation of each option which is evidence-based and takes into account and balances all the pros and cons of, each option. The Article 8 rights of the child and the family are engaged and, as I have indicated, a care order with a plan of adoption should only be made if necessary and proportionate and is an option of last resort.

11. The factual background prior to 2^nd October 2014 is set out in the judgment which I gave on that date, when I took a decision which I referred to at paragraph 33 of that judgment as a very difficult decision, a finely-balanced decision and not one that I came to without a great deal of thought, a decision that A should be removed from her mother’s care. Prior to October 2^nd, that had been a number of court hearings whereby the local authority had put before the court a plan to remove A into foster care, but the court had not approved such a plan, recognising that the care provided for A was good, the bond was there, and being reluctant to separate mother and daughter. I do not intend to repeat all the background, it is set out within that judgment.

12. However, it is pertinent to note that at paragraph 23 of that judgment I set out the guardian’s position at that time. The guardian explained her position by saying that what is missing as far as the mother is concerned is the mother realising that she is an adult and with that comes responsibilities which she cannot pass over to other people, but thus far she has accepted all help from her family and has not thought for herself. The guardian at that time was recommending that M and A should go into a refuge.

13. The guardian, as I recounted it, went on to say her family are very supportive. The guardian took the view that a refuge would be very testing for the mother because quite clearly she would find the environment difficult and different. She believed that the environment of the refuge would give the mother the opportunity to experience a protective environment and have professional help to think through such things as issues of domestic violence in a positive way. She said that whether the mother was able to benefit from it depended on the mother being an adult and also depended upon how many people the mother told of her location.

14. The guardian was emphasising in October of last year the necessity for the mother to take responsibility for her actions. I took the view at that stage, concentrating on A’s welfare, that it was necessary to sanction A going into foster care to safeguard A and protect her from risk of very serious harm. I made it absolutely clear on that occasion that it was a situation which would be kept under careful review, that I took the view that A could be well-cared for by her mother and that M’s abilities to engage and understand should be open to and fully assessed to make a decision whether M was capable of keeping A safe in the future.

15. It is, I think, accepted certainly by the professionals that F presents a grave risk to those persons who confront him. He has a very lengthy criminal background involving offences of violence. He has a history of smashing up his own accommodation, other people’s accommodation, and being violent to individuals and animals. It is recognised that he is a young man who is threatening and dangerous. It is apparent from his involvement within these proceedings that he is capable of very violent and frightening behaviour, and there are risks to both M and A in the company of this man.

16. M was very well aware of the view that was taken of the risks that F presented. It certainly seemed to the court that she was acknowledging the risk. By the time the matter came before the court there had been the incident of 13^th August when the mother had to lock herself in her room with A, who was only two weeks of age, when F caused considerable damage to the property. There had been the incident of 23^rdSeptember when the mother said that her only options, having locked herself in the bathroom to keep A away from him, were to call the police or to flee. The mother was well aware that the fact that A was present did not stop F behaving in a violent manner.

17. Within two days of the judgment being given, M was apprehended with F. During the parenting assessment that the local authority carried out, it is recorded thus:

“I have asked M specifically about the incident on 4^th October. M explained that she was upset and feeling stressed about A being placed in foster care and she went to F’s aunt’s house. She said she did not plan to see F but he was at that address. She continued to proceed into the house despite being aware F was present. F told M he was depressed about the situation. She said he was aware that A had been placed in foster care, but when asked how he would have known this, M said she did not know. M said his aunt left the house and shortly after the police arrived, she believes someone had phoned the police due to noise, but she could not explain who this could have been, or why, or what the noise was which may have prompted a call.

M did not disclose any information about a sexual relationship with F, however when questioned directly she admitted that she had kissed F. When asked about the police comment that she was in a state of undress, she said she was wearing a dressing gown that did not belong to her. M denied she had resumed the relationship and said she could understand that this looked very worrying to

children’s services. On 4^th October, M was arrested for obstructing a police officer. I asked M why she gave false details to the police about her identity which led to her being arrested. She said she panicked and was worried about the consequences of her being found with F, so she lied about who she was. She said she does not really have an explanation for why she did this. M said she received a caution from the police as a result of her actions. M said she has not spoken to F since this incident.”

18. The parenting assessment was prepared and lodged in January and it is apparent that M at this stage did what she had done in the past and indeed continued to do, namely she lied about her relationship with F. Certainly she lied in saying that she had not spoken to F since the incident. She continued to maintain that the relationship with F, or any contact with F, was at an end.

19. The local authority came into possession of information which indicated that M had been with F at the Holiday Inn over the Christmas period. M denied that that was true and, on her behalf, the court was informed expressly on 16^th February by M’s solicitor that M had not been at the Holiday Inn and challenged the local authority effectively to prove that she had been there. The local authority did prove it. M then said that she was not there with F but with Z. She denied that she had any contact details for Z, neither address nor telephone number, but maintained that she was with Z and it was the position that she had no contact details for him. Indeed, on 9^th July, M filed a statement with the court saying, “I visited the Holiday Inn hotel over Christmas time with my sister and her friends, including Z. F was not at the hotel with me.” Thus, four days before this hearing commenced, she maintained that Z was the male whom had been there.

20. On 24^th March, on express instruction, counsel appearing on behalf of M said to the court that she had found out that she may be pregnant immediately before the hearing on 24^th March. It was a further lie in that the local authority obtained evidence from the pregnancy booking services that M had known that she was pregnant in February and had made enquiries about having an abortion. M was still maintaining that she had last had intercourse with F in October, in fact that she had last had any contact with F in October. The medical evidence put the date of conception mid to late November and it was being said to the court that Z was the putative father.

21. In evidence before me, she said that she had never said that she was in a relationship with Z. She had said that she was saying in the hotel with Z, but she never said that Z was potentially the father, that her position had been misrepresented by her lawyers, it was her solicitor’s misunderstanding. In her evidence before me, she accepted that F is the father, that the unborn baby was conceived when she saw F in November, and that F had been the male present at the Holiday Inn, that she had booked the room, she had spent time there, and that she had continued, on the occasions that she saw F, to do so because she was frightened and in her words: “He wouldn’t leave us alone. I was sick of it. He was crying. I couldn’t be bothered. He would nag and nag. That’s why I went to the hotel. I didn’t think people would believe us because I’ve lied in the past. He’s been influencing us a lot.”

22. She said on several occasions during the course of her evidence it was all a blur. She told me she had been very scared and putting off telling the truth, and that she was scared of F and scared of standing up in court. It is right to say that the presentation of the mother in court was unusual. She sat with her back to the court room. She was not looking at me. I bear in mind very much what Lady Justice Macur said in Re M (Children) [2013] EWCA Civ 1147, that giving evidence in the emotionally charged atmosphere of this sort of hearing is extremely difficult and I am sure that M found it difficult.

23. However, as the guardian said, there were elements of defiance when she gave her evidence. In speaking about F, she did not give the impression of being terrified or frightened but, as I have said, was indicating that he would nag and that she was sick of it. She said that she has not told him about the second child. Her attitude was, and I quote directly from my note, “I am not really bothered about him knowing.” That does not seem to indicate to me a concern about F’s reactions. She told me, “I have changed.” She said that she had made many mistakes, she regretted them, and that she would be able to provide safely for A.

24. One of the major and enduring difficulties for this court is that in light of all the mendacity on behalf of M in the past, it is very difficult to be satisfied that she is now telling the court all of the truth. It is apparent that she has only told the truth in relation to matters, by putting it colloquially where she has been “caught out” by reason of evidence being provided. It is difficult to see how the Local Authority can work with her to safeguard A when they cannot trust what she says and cannot therefore be satisfied A is safe. The local authority has information that on 22^nd January, when arrested, F made use of his statutory telephone call to call M. She states that she did not receive a call from F. She states that she has not seen him now since the Holiday Inn. She told me that she agreed that F would remain a risk, that when they separated at the Holiday Inn she was frightened, he had not behaved well. What she told me was:

“I had a list in my pocket of friends’ addresses and a list of what I would get to wear, like fake tan. F was not being very nice. He was smashing things, punching walls, and I left. I stayed there four or five days. He was acting weird the whole time that I had been there. I think he might have been on the drink. I went home and came back. I said to my family I was out with my friends for a drink.”

25. I am afraid I am not able to accept without reservation that that was the last occasion on which M saw F. I do not know if she has seen him since them. The information about the telephone call would seem to point to the fact that they had been in communication since, but I do not know and at this stage I am not going to speculate. However, what is apparent is that M, despite all the warnings, all the information provided, continued to associate with F, continued to mislead and lie to the police, to the local authority, the social workers, and to the court. It is difficult to see how one could place any reliance upon her cooperation in the future. The guardian was clear that as far as she, the guardian, was concerned, that she did not see any evidence of any change and that the mother still had not accepted any responsibility. The guardian reflected that M’s approach was to say what she thinks people need to hear.

26. MGM indicated that she found M’s attitude frustrating. All the professionals involved have also found M’s attitude and approach frustrating because, in M, we have a mother who is perfectly capable of providing good care for A, but she cannot see that she has a role in protecting A, that as the guardian put it she is not just a passive player, she needs to accept responsibility and change the way that she responds to act upon the acceptance of responsibility. M was very clear that she had changed but, as the guardian said, there was little evidence of change and if M does not understand what she has done or not done in the past, that she is unable to see the need for change, that she is unable to cooperate fully by being completely honest and accepting responsibility, then she will not make the necessary changes.

27. If there has been even a glimmer of change, it has only been in the past five days, in that the 9^th July statement was again putting it bluntly more of the same. It may be that the experience of giving evidence on this occasion may have some effect. It may be that there is something which will prompt M to reflect and indeed start to change because, unless M does change, quoting the guardian, “There will be another F or this one will be back.” F presently is in custody. He will remain in custody for some time, but the fact that he is out of the way at the moment does not reassure the court. The court cannot be satisfied that the mother has the ability to keep A safe unless there is evidence of change. In her report, the guardian refers to denial and avoidance as very powerful defence mechanisms for M. Those defence mechanisms have been demonstrated over and over again.

28. I asked the guardian if she could identify any support, assistance, that would make a difference in the ability of M to keep A safe. The guardian had already set out in her report that if A was returned to her mother and F was once again at liberty, “I can identify no strategies that M has put in place to secure her daughter’s safety. She says that their relationship is at an end but her information has not been reliable in the past.” In evidence I asked the guardian whether there was anything that she could recommend or identify and she indicated that there was not.

29. This case is one where everyone, it seems to me, has struggled, in that to separate A from her mother is indeed a draconian step, when the mother is capable of providing good day-to-day care for A. However, I have to look at the risks of placing A with M. The court and the professionals cannot be satisfied, bearing in mind mother’s behaviour thus far, and present behaviour/past behaviour tends to predict future behaviour. The mother’s behaviour thus far has not been to work with the local authority. She did not work with the local authority when she was pregnant. It was thought after A was born that perhaps the mother had started to see the necessity to do so, but it has become clear that she has continued to lie her way through and to place her own needs and wishes above those of A, despite the fact that the professionals have tried time and time again to assist and to point out what M needs to be doing.

30. Therefore the risks in the future are significant. Sadly the harm to which A may be exposed is very serious physical harm and also serious emotional harm by reason of her Mothers involvement in a relationship with a very violent and unpredictable man. It is A’s welfare that I have to consider and even if there is a glimmer of change now, and I am not satisfied there is, but if there was, A has not got time to wait for her mother to recognise how her behaviour and lack of responsibility has caused harm or would cause harm to A.

31. MGM puts herself forward. I found that MGM is in a very difficult position. She wishes to support her daughter, but sadly what has happened is that none of the maternal family has ever challenged M. The viability assessment in relation to MGM was not positive. There are concerns about the way that MGM allowed her children, M included, to avoid school, and the guardian has highlighted within her report that the screening assessments of the extended family have been negative. She says: “Family members appear to work as a team and I do not consider they have demonstrated a capacity to establish a degree of separation in their thinking from that of M. I am quite sure that if A were to return to her grandmother’s care, M would be an integral part of her life.” I am satisfied that that is an accurate reflection of the situation within the maternal family.

32. The decision that I have reached, to make a care order in relation to A, has been made after a great deal of consideration and with great regret. It is a draconian move. A will cease to be a member of her birth family, I am very conscious of that, but I am satisfied that her welfare requires that a care order is made, and that is the order made by this court.

THE JUDGE: Mr Spain, are there any matters which I have failed to deal with within the course of the judgment?

MR SPAIN: Yes, for the record, I think it better be recorded that F was represented by a solicitor on the first day, but [gave?] permission to withdraw.

THE JUDGE: F was represented by Mr Fowler.

MR SPAIN: Miss Fowl, F-O-W-L.

MISS FAGAN: Mr Fowler represented him on an earlier occasion.

MR SPAIN: It was Mr Gibson originally, and Miss Fowl turned up in his place.

33. In fact I have never seen F, even when he has been at liberty he has not attended at court, but he has been represented throughout these proceedings by Mr Gibson, an experienced solicitor, and then Miss Fowl.

THE JUDGE: Are there any other matters? I will order a transcript.

MR SPAIN: [Inaudible].

MISS FAGAN: It goes without saying, your honour, that making a care order, that you also make the placement order today.

THE JUDGE: No, I have not made the placement order. I am very conscious of that, because I need to look at that, and I was just dealing with the judgment at the moment.

MR SPAIN: Yes.

MISS FAGAN: Very well.

THE JUDGE: And I was going to ask, you clearly have not got instructions to consent.

MR SPAIN: No.

THE JUDGE: Do you want me to deal with it now?

MISS FAGAN: Your honour, yes, please.

MR SPAIN: Yes.

THE JUDGE: Have I got the statement of facts and the Annex?

MR SPAIN: Yes, but where they are paginated I do not know, and you have the guardian’s report I am sure.

THE JUDGE: I have got the guardian’s report, because that was handed in separately.

MR SPAIN: I think there was a separate bundle, was there not?

MISS FAGAN: Yes, I think there was today.

MR SPAIN: It must be in a separate bundle, and what you have been provided with, I am sure, is the index for the care proceedings. I must say I cannot lay my hand on the…

THE JUDGE: No, it is clearly not in this bundle.

MR SPAIN: No.

MISS FAGAN: It is not.

THE JUDGE: It is preferable for me to deal with it now, because it is just going to upset.

MR SPAIN: Yes.

MISS FAGAN: Yes.

THE JUDGE: Has anybody got a copy? All I need is a copy of the statement of facts—

MR SPAIN: I do not have one to hand, no.

THE JUDGE: —and the report.

MISS FAGAN: Your honour, I am just trying to log onto my system to see if we can get it from there.

MR SPAIN: I certainly do not want to get in the way of anything, but what I am also looking for is, in a recent judgment it says the court should only proceed to a placement if the intention to do so has been indicated on a previous order. I am conscious, acutely aware, that I have drafted the previous orders, I am looking, yes.

MISS FAGAN: B127.

MR SPAIN: Thank you very much, B127.

THE JUDGE: B127?

MR SPAIN: Yes. “Local authority file and serve by 1^st June. In the event that [there is?], Mrs Forsey be appointed, a placement application shall be heard at the conclusion.” That is why I put it in, yes. So it is your order of 11^th May, but what I cannot do is lay my hands on the statement of facts, though there must be one, because otherwise they would not have issued.

MISS FAGAN: Mrs Forsey has it on her system. She has beaten me to it.

THE JUDGE: And the report?

MR SPAIN: Somewhere there will be a copy of Mrs Horsey’s report.

THE JUDGE: No, I have got the CAFCASS report. It is not dated. It is, 10^th of the 7^th?

MRS FORSEY: No, that is when I printed it out.

MISS FAGAN: Needs to be filed by 29^th June I think.

MRS FORSEY: It was completed on 28^th May.

THE JUDGE: 28^th May?

MR SPAIN: 29^th May it was completed. There is also the notice of hearing I notice, which is B135, listing it to be heard alongside, so we are correct.

34. The local authority makes application for a placement order in respect of A, who was born on 23^rd July 2014. I have just given a judgment in the care proceedings. I do not intend to repeat what I have said within those proceedings. At the time that the care hearing was listed for final hearing, the court order set out that a placement application followed, if appropriate, and the notice of hearing specified that the placement application order be heard if the care order, at the same time and, if appropriate. Miss Fagan, on behalf of M, asks me to deal with it now and I take the view to delay dealing with it would not only be detrimental to A but also in fact to her mother, M.

35. There is no consent to the placement application but that is not surprising. In the circumstances it would be too much to expect M to consent. I have before me the statement of facts dated 1^st June, which I have read. I have the Annex B dated 29^th May, both this year, and I have the guardian’s report dated 30^th June, in which the guardian recommends that the placement order is granted. It is apparent from the judgment that I have just given that I am satisfied that the welfare of A requires that I dispense with the consent of the mother.

THE JUDGE: Has F ever had parental responsibility?

MR SPAIN: I do not think [he does?].

THE JUDGE: [No, he does not?]?

MR SPAIN: No, he has no parental responsibility.

36. For the avoidance of doubt, F has never attended any of the hearings and does not have parental responsibility, but it would follow that A’s welfare would require that I dispensed with any consent from him if it was required.

37. In an application for a placement order, it is the welfare of A not only during childhood but throughout the entirety of her life that is my paramount concern and I have regard to those matters set out at Section 1(4) of the Adoption and Children Act 2002. The wishes and feelings of A, and the needs of A, are those of any very young child, for stability, security, and consistency of care, and for a loving and supportive home. Sadly, I have found that A’s safety would be compromised in the care of her mother and that she could not provide the security and stability A would require.

38. I also have to have regard to any harm; clearly I have found that. I refer to the harm that would be occasioned, and of course if A ceases to be a member of her birth family. Sadly, for the reasons I articulated within the care judgment, the maternal family would not be able to provide the care required for A. The local authority has assessed the family members and those assessments are negative. The court should only proceed to look at making an adoption order if nothing else will do, if all other options have been exhausted and placement for adoption is the only action which will safeguard A’s welfare. I am satisfied that that indeed is the position. A cannot be placed in her family as she would not be safe. She is still very young and long term fostering cannot be in her interests. Sadly nothing else will do.

39. I approve the local authority plan in relation to contact and therefore make the placement order.

[Judgment ends]

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England and Wales Family Court Decisions (other Judges)