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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> J (A Child : care order : adoption), Re [2018] EWFC B18 (16 March 2018) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B18.html Cite as: [2018] EWFC B18

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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 J, A CHILD

		16 March 2018

Introduction

1. These proceedings are about a little girl, J. Her mother is M. The identity of her father is not known other than that his name is X, as he is someone the mother met at a party and with whom she did not have any ongoing relationship. Attempts by M to locate him through friends on Facebook have been unsuccessful. J is the third child of M. Her two older children, Z and Y, were the subject of care proceedings back in 2012. In the proceedings regarding the older children I made findings that Y had suffered several bruises and a subdural haemorrhage, caused by his mother in a non-accidental manner. There were at the time other concerns about the quality of care M had given to the older children, and these were reflected in my judgment. M was unable to make the necessary changes to her parenting such that the children could be placed back in her care and they have since been adopted together.
2. J has been in foster care since she was born due to concerns about the risk of her being harmed were she to be living with her mother, given the removal of the older children. During the proceedings M has had contact with J four times a week and they have a good relationship. The proceedings began two days after J was born and at the first hearing an interim care order was made. It was also ordered that an assessment of the mother and whether she posed any risk to J was required, and a forensic psychologist, Dr Naomi Murphy, was instructed. In addition, there was to be a parenting assessment to be carried out by the local authority social worker. The case was timetabled through to this final hearing.
3. In terms of what has had to be decided at this final hearing, the parties were able to agree between themselves that the threshold criteria for the making of any public law orders was met, with just one aspect of the draft prepared by the local authority being in dispute, the question of whether the mother accepted the findings I had made at the time these proceedings began. Other than determining that matter, the only decision from me was whether the local authority's plan for J was the correct one. The threshold criteria as found by me the parties are set out at the end of this judgment.

The Issues and the Evidence

4. In preparing for this hearing I have read the full bundle of papers provided to me in this matter. I have heard evidence in court from Dr Murphy, J's social worker, M and the Guardian.
5. The local authority, supported by the Guardian, says that the only way J's future can be safeguarded is for her to be adopted. The professionals agree that M loves her daughter very much and has worked hard to improve her general situation since the court proceedings in 2012. She moved away from the area where she was previously living. During these proceedings she has kept her home in a good condition, which was not the case before. She has worked well with the social worker and with family support workers, again something which had been a real problem in the previous proceedings. She has also attended each and every available contact session with J. She has been able to give good care to her daughter in those sessions and a loving relationship is seen between them.
6. Despite all these positive factors, the local authority concluded that J should not be placed in her mother's care. The reason for this very much came down to the issue of the risk of future harm, the local authority and guardian placing much reliance on the assessment by the forensic psychologist. I shall return to that assessment in more detail in my analysis of the factors which are relevant to my decision, but in simple terms Dr Murphy says there is still a real risk of harm to a child in the mother's care and that she could not identify any way that harm could be reduced without long-term therapy, therapy she envisages would take a year or more.
7. The professionals say that J cannot wait for a year or more to see if her mother can make the necessary changes. They are of the view that J needs a permanent family now and the only way that can happen is if she is adopted, that nothing else will do. There is the possibility that she could be adopted by the couple who adopted her older sister and brother; that couple are willing and an assessment is to take place. Although things look optimistic in respect of that assessment, if for any reason that placement could not go ahead the plan would be for J to be adopted in a separate placement but hopefully with direct contact between the siblings. In terms of contact with her mother if J were to be adopted, the proposal would be annual indirect contact through the letterbox system, with direct contact gradually reducing after this hearing to a level of monthly contact until J is matched with adopters.
8. M understandably does not agree that J should be adopted and she does not accept the conclusion of the risk assessment carried out by Dr Murphy. She acknowledges that there would be a risk of harm were J to be living with her, given what happened to Y, but she says that harm could be managed while she undertook therapeutic work to address the problems which lead to the risk of harm.
9. M says she has come to accept that she must have harmed Y although she has no memory of doing so. She believes she has blocked out her memories of what she did and what led up to it as a means of managing her depression. She says she was in a very different situation then compared to her situation now. At that time, she was suffering with mental health difficulties with which she was totally wrapped up and had a problem with anger. She was extremely stressed at the time and does not think she was coping as a young parent with two young children. M says that her mental health has improved greatly and she is no longer on antidepressants, which she had been for a number of years. She says facing up to her difficulties has led her to look for better coping strategies, which she has identified for herself on the internet. She gives as an example that she now has a list of symptoms of depression and if she ticks more than three things on the list in a day she knows she needs to take action. M sees the importance of not letting her mental health relapse. She describes being supported by two good friends as well as her sisters and mother, and has made useful friendships through attendance at groups and courses.
10. Recognising that she harmed Y, and following the assessment of Dr Murphy, M has pursued trying to get therapy through her GP. She says a couple of weeks ago she took Dr Murphy's report to the surgery and believes she may now be on a waiting list for therapy. She says if she could identify the right person she would try to pay privately as she appreciates there is likely to be a lengthy delay for help via the NHS. She says she had sought therapeutic assistance previously through her GP without success.
11. It is M's case that she would be very happy to engage with a therapist, indeed she feels she needs this whether or not J is to return to her care. However, while she is doing this work, she does not accept the view of the professionals that J could not be in her care because of the risk. M thinks she could be given support by the local authority, a risk management plan could be drawn up, and a social worker could monitor her, and that that would mean J was safe.

Decision

12. I now turn to consider what orders if any are in the best interests of J. If at all 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".
13. 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 33 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."
14. 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 (above) and reminded myself of the importance of addressing my mind to all the options for J, taking into account the assistance and support which the authorities or others would offer.
15. In reaching my decision I have taken into account that J's welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I must consider the Article 8 rights of M and J as any decision I make today will inevitably involve an interference with their 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 J's rights and be proportionate.
16. A placement order is sought by the local authority in respect of J. 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.
17. I am also conscious that I must have in mind the general principle that any delay in determining J's future is likely to prejudice her welfare.
18. I have to ask myself whether J should live with her mother, with or without statutory orders being made, or whether she should be adopted, these being the only two realistic options for her. 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 welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002, and I propose to consider the evidence in the light of those factors.
19. First, there is the question of what J needs. She is still a young baby and evidently her needs must be met by her carers. She needs to be loved, cared for, all the things a baby needs. She needs to be kept safe from physical or emotional harm. She needs to have a good strong relationship with people who can parent her throughout her life and she needs that as soon as possible.
20. Key to J's future is knowing what harm she would be at risk of suffering and, linked to that, how capable potential carers would be of meeting her needs. If I look first at the question of the potential for harm in her mother's care, I turn to the findings made in respect of the harm Y suffered and to the assessment of Dr Murphy. Y suffered injuries, serious injury in the case of the subdural haemorrhage, on more than one occasion. Those injuries were caused by M. I cannot countenance an outcome for J which puts her at risk of being injured in the same way. It is important therefore to consider how likely it would be that such harm might occur.
21. Whilst I acknowledge that M has made improvements in her life, and it is clear to everyone that she has, the evidence is that nothing she has done has dealt with her deep-rooted problems. Dr Murphy noted that M has a documented long-standing history of anger problems and aggression, her medical records documenting fights during adolescence and adulthood. M injured Y on more than one occasion but is unable to remember what happened or even what led up to those injuries, memories she says she has blocked to deal with her depression. Because of this, Dr Murphy says it is not possible to identify factors which might increase or reduce the risk of harm. Without M being able to talk about what happened, about her feelings at the time, Dr Murphy says it is not possible to help her learn from these events or be sure she would seek support if needed to avoid a repetition of such injuries. M simply saying that she accepts she was in a difficult situation at that time, a single mother of two young children with mental health difficulties, is not sufficient. Dr Murphy made the point that single parents with difficulties as a rule do not harm or neglect their children. To identify a course of protective action, it is necessary to know what happened on that day or days, as without that it is very difficult to put anything in place to moderate the risks. She said the mother's inability to talk even about the events leading up to her injuring Y was significant, that it showed how difficult it was for her to deal with her emotions.
22. Dr Murphy was of the view that the changes M has made to date were not sufficient to address the issues of risk. M needs to address deeper-rooted problems stemming from her childhood experiences of loss and neglect and develop a capacity to cope with the difficult feelings which stem from this. Dr Murphy spoke both in her report and her oral evidence about the difficulty she felt M would have engaging with therapy. She spoke of M having a tendency to disconnect from situations which cause her to feel emotionally vulnerable, that she avoids emotion. Therapy would bring challenges because good therapy is painful, exposing a person to all the feelings which they have not been able to tolerate. She said that for M this was going to be a slow and very painful process. Initially the impact of therapy might be that M would get more angry and aggressive. M would also find it hard to trust her therapist and it should be expected that it would take time for her to build up a relationship. Dr Murphy could not be confident that therapy would produce the desired result; she pointed out M would have to address difficult issues in respect of her childhood and about her harm of her children, and Dr Murphy was not confident she would be able to address that. She was of the view that therapy would need to take place for a minimum of twelve months to make the necessary changes, but there was a strong possibility that it would take longer.
23. The point was made by Dr Murphy that M appears to have achieved increased stability in her life but the risk of harm to children does not tend to happen at the point when a parent is stable but rather when they are unstable. M still has vulnerabilities which would make her unstable when faced with challenges. For M to engage in therapy concurrently with caring for J would be a big risk. Dr Murphy made the point that the best predictor of risk in the future is to look at the risk posed in the past. Without change to address that risk, the risks would be the same in the future.
24. Dr Murphy was asked about the support M now has and whether that could be part of keeping J safe. Dr Murphy had reservations about the level of support the mother in fact had, compared to what she described, but in any event was of the view that the support that was on offer was not sufficient where one was dealing with someone who had harmed their child.
25. Overall, acknowledging all the positives in the mother's current situation, Dr Murphy said she could not see that the mother's current risk to J had reduced below the level of risk she posed when caring for the older children. She could not identify any package of measures which would make the risk acceptable were J to be living with her mother whilst therapy took place.
26. The expert assessment of Dr Murphy is key to the conclusion of both the social worker and guardian that J should not be placed with her mother. The professionals acknowledge the real improvements M has made in her situation. This is a case where there are positives and it is important to give M credit for that. Her home situation is better, her contact is good and she has attended all J's medical appointments, it is clear from the parenting assessment overall her parenting ability is not in issue, and she has engaged fully in these proceedings and in the various assessments which have taken place. Despite that, because of the risk of harm, the social worker and guardian say J would not be safe in her mother's care. As with Dr Murphy, neither of them can identify any level of support that would reduce the risks nor is there any monitoring which could be in place to protect J.
27. Looking at the unanimous professional evidence on the question of risk, I have asked myself if they are all being too cautious, given the difference I accept there has been between the mother's presentation six years ago and now. I am afraid I cannot say that. I cannot say if the changes she has made are relevant to a reduction in risk because I do not know what caused her to harm Y on more than one occasion. I do not know if it was as a result of a loss of temper and, if it were, what caused that. Whilst ever the mother blocks her memories of that time, there cannot be a proper assessment of risk, and that is why Dr Murphy says she cannot say the risk has lessened, simply that without being able to assess that one has to look to the past for the best predictor as to the future.
28. Returning then to any harm which J would suffer were she to be in her mother's care, I am satisfied that she would be at a real risk of suffering physical harm in the way her brother did. Emotional harm to J could also be expected if M was engaged in therapy, as Dr Murphy's evidence was this would inevitably affect M and I am satisfied that would have a knock-on effect on J. I accept that M, from the evidence I have, might well be able to meet J's day-to-day care needs but that in itself is not sufficient. She would not be able to meet J's need to be kept safe from harm and I agree with the social worker and guardian that there is no package of measures which could be put in place to keep J safe. Without knowing what caused M to get angry and to harm Y, one cannot know when harm to J might happen and therefore nothing short of full-time monitoring could prevent that harm, and there is no way that can be provided, not from what the social worker described professionals being able to offer and not amongst M's friends and family. The situation M is in is not her fault, it is the consequence of her life experiences to date, and one cannot help but feel sympathy for her.
29. Harm would also be caused to J by delay in her being placed in her long-term home. Turning back to the one aspect of the threshold document which was not agreed by the mother, I am satisfied that M has taken longer than she now says to take on board the findings made in 2012. Where her evidence and that of the social worker differs in terms of what M said during the pre-birth assessment regarding the causation of Y's injuries, I prefer the social worker's. There would be no logical reason for there to have been a discussion between them about matters such as someone having pushed into Y's pram or the involvement of Y's father if the mother had not been offering suggestions for how his injuries were caused. I also note what Dr Murphy records about M having told her midwife that her ex-partner was responsible for the removal of her children. The mother's evidence is not always consistent and Mr Welch drew my attention to other points where the mother disputes what different professionals have written down. From the evidence I can find that M did not accept the findings that I had made, specifically that she had harmed Y, before this case began. It seems more likely to me M has come to accept the findings during these proceedings, possibly assisted by discussions with professionals and her own solicitor.
30. And looking at the implications of that for J, M still has a long way to go in terms of therapy, and it is not known when that therapy could even start. It is to M's credit that she would try to fund therapy herself but an appropriately qualified person who can deliver this level of therapy is going to be very costly and this mother, as far as I understand it, is not in paid work. Dr Murphy's assessment is that therapy would be needed for at least a year, and I assume that is on the basis of regular and reasonably frequent sessions. J simply cannot wait for a year or two to know if she can be placed with her mother.
31. Mr Hookway makes the point that there is going to be some delay in planning for J as, rather than moving immediately to place her with someone already approved for a child, the local authority rightly is going to assess the adopters of Z and Y to see if she can be placed with them. As I understand it that whole process will take four months rather than the two or three it might take if an already approved carer were found and matched. There is a huge difference though between delay of four months or so as compared to a period in excess of a year if J were to wait to see if her mother were able to make the necessary changes. And, I am afraid, there is a quantifiable difference in the likelihood of success of the two courses of action.
32. The alternative for J is for her to be adopted, she being far too young to spend her life in long-term foster care and there being no one within J's extended birth family who has offered to care for her. I accept that J will suffer emotional harm due to the loss of a relationship with her mother, a relationship which from all the evidence I have seen and heard is a good one. If J could live with her mother that relationship would continue and would bring benefit to this little girl. That however is only one aspect of what I have to consider. If J is adopted then she will be safe from harm and that is central to my thinking. Her adopters will be able to explain to J her circumstances, particularly if the local authority is successful in placing her with her sister and brother, and this will mitigate the harm that might be caused to J by being adopted and ceasing to be part of her birth family.
33. Clearly J is too young for me to know what her wishes and feelings would be. It would be reasonable to assume that she would want to grow up in her mother's care if she could do so and still be safe.
34. So, I balance the options for J of living with her mother or being adopted. To live with her mother would maintain a relationship which is important to J, and give her the best possible understanding of her birth family. However, there would be the very real risk of her being harmed, physically and emotionally, because of her mother's difficulties, and this factor must be at the forefront of my mind. If J is adopted she will lose her relationship with her mother although has the real potential it seems of growing up with her older sister and brother. She would at an early point be living with people who would be her parents throughout her childhood, and I am conscious that delay in making such a decision for a child is harmful.
35. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of J being placed safely in her mother's care, and that her 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 her is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. I am also satisfied that J's welfare requires me to dispense with M's consent to placing her for adoption, the word "require" here again having the Strasbourg meaning of necessary, "the connotation of the imperative". I therefore make a placement order authorising the local authority to place J for adoption.
36. This is not an order I make lightly. I am acutely conscious that this will cause great distress to M, who has worked as hard as she can to get to a point where she can care for her daughter. It is to her credit that she has achieved what she has and it is more than one might have expected from a parent in her situation. Sadly though, her problems are greater than can be fixed by courses and internet searches. She needs professional help, help she tells me she will pursue for herself even if there is no chance of J being placed with her, and that is good to hear. I very much hope that she gets the help she evidently needs and can become a stronger and better person, it is just that this cannot happen in timescales which are right for a child as young as J. J will know from what I have said that her mother loves her – indeed the guardian used the word "adores" - and did everything she could for her daughter.
37. 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 J up. I propose therefore to make a direction that this judgment must be released by the Local Authority to J's adopters so that it is available to her in future; that release however is on the basis that it should not be disclosed beyond them or any medical or therapeutic staff working with J or her family. It is very important therefore that the judgment is passed on to the Adoption Team to give to them. I have written this not for the benefit of the adults but for the children and wish to be sure it reaches them.
38. Finally, I would urge the local authority to be live to the potential for delay being caused to J in finding an adoptive family. The local authority must prioritise ensuring the assessment of the siblings' carers is got underway but also not delay too long before exploring the option of a sole adoptive placement for J. I was reassured to hear from the social worker that, although the assessment is likely to be outsourced, the family finder would join in the assessment so that, if there was any hint the outcome might be negative, early steps could be taken to look for an alternative placement. I direct that the social worker should to make sure my comments regarding this are brought to the attention of the relevant workers and managers by way of passing on a copy of this judgment to those who need to see it.
39. Finally, I also reserve any future applications in relation to J to myself and 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.
SCHEDULE OF FINDINGS MADE IN SATISFACTION OF THE THRESHOLD CRITERIA

At the time protective measures were instigated, that is 19 September 2017, the threshold criteria as set out in s.31(2) of the Children Act 1989 were met in respect of the child, J, in that the child would be likely to suffer significant emotional harm, physical harm and neglect and the risk of significant harm was attributable to the level of care given or likely to be given to the child by her mother not being what it would be reasonable to expect a parent to give a child by virtue of the following:

1) On a date in 2012 (date redacted) the Court made the following findings in proceedings under case number DP11C00202 relating to J's half siblings:

1. Y had suffered non-accidental injuries and that therefore on the date protective measures were taken Y had suffered significant harm and both children were at risk of suffering significant harm.

2. On a date in 2011 Y was found to have the following bruises:

a) Two small 1x1cm brown/purple bruises across the temporo-parietal region 3cm above the helix of the left ear;

b) 1x1cm brown purple bruise with a superficial scratch mark overlying it approximately 1cm left of the lateral canthus of the left eye;

c) 1x1cm purple bruise on the right anterior ankle;

d) 0.5x0.5cm purple bruise on the right antero-lateral aspect of the leg just below the knee;

e) 4.5x1.5cm purple bruise with some yellowing at the edges across the right upper thigh/buttock.

3. All these injuries were non-accidental save the scratch is likely to have been self-inflicted. They would have been caused by blunt injury, a slap, punch or grip and amount to more than one traumatic event. These injuries would have been suffered in the seven days prior to Y being seen at hospital on a date (date redacted) in 2011.

4. Shortly after Y had a CT scan and later an MRI scan. These studies identified three foci of subdural haemorrhage behind the cerebellar hemispheres in the posterior fossa.

5. The subdural haemorrhage was caused by a traumatic event, either an impact or shake, and was therefore non-accidental. This event would have occurred more than seven days prior to the CT scan but it is not possible to say when the earliest possible date for it to have been caused would have been.

6. The injuries Y sustained occurred whilst in the care of the mother and were caused by her.

2) By virtue of the finding that J's half-sibling had suffered non-accidental injuries which occurred whilst in the care of the mother and were caused by her, J would be at risk of suffering physical and emotional harm and neglect if placed in the care of her mother.

3) At the time of intervention, the mother continued to dispute the findings made by the Court that the injuries sustained by J's sibling were non-accidental and caused by the mother. However, the mother has since accepted the findings made by the Court in 2012. The mother's present inability to provide a coherent account as to the events surrounding the injuries and how they occurred places J at risk of physical and emotional harm.