EM (A Child), Re [2014] EWFC B216 (10 December 2014)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © JUDGMENT th December 2014 HIS HONOUR JUDGE GARETH JONES: I have before me applications for a Care Order and a Placement Order with regard to a child EM born on 19 th June 2014 and who is therefore approximately five months old. The parties and their respective representation The Local Authority who brings these applications is X Council represented by Mr Sellars. The mother of E is PM. She is represented by Mr Dodd. So far as E herself is concerned, she is represented by her Guardian Miss Fozzard and by her solicitor Miss Cracroft. So far as E's father is concerned, her paternity is unknown to the Court. There are two possible candidates who have been identified. They are two brothers, namely WS and PS/CS. Notice of these proceedings has been given to both of these individuals, but they have not asked to be joined as respondents and therefore the exact position with regard to paternity (as I have said) is an uncertain one. The general background E is the mother's seventh child. It has to be said objectively that the mother has an extremely poor parenting history, but she has a very strong desire for motherhood; a desire unfortunately not matched by her capability. In March 2013, I was involved in Care and Placement proceedings involving her sixth child O, who was born in June 2012, and on 12 th March 2013 I delivered a judgment which has been transcribed and which appears at pages F1 and onwards in the trial bundle of the current proceedings. So far as that judgment is concerned, it can be read in its entirety into this judgment today, and there are some common features between the mother's presentation then and the mother's presentation during these proceedings, which is perhaps hardly surprising because the earlier proceedings were only concluded some eighteen months or so ago. In that judgment at paragraph 5 there is noted the mother's very long involvement with social services which began in 1997. In paragraph 6, there is an indication of the outcome in earlier proceedings involving the mother's other children. As is noted there, two before O had been subject to Placement Orders and were adopted outside the birth family, two children were in foster care and had contact with their mother, and one of those children lived with his birth father under a Residence Order. There had been a parenting assessment in the proceedings dealing with O, and the mother's unhappy childhood is described in paragraph 11 of my judgment. That may lie at the root of many of the mother's problems with regard to her own parenting. In paragraph 13, the position at the time of O's proceedings was that the mother lived in very close proximity to the maternal grandmother. That of itself caused a number of difficulties. That situation, I am happy to say, has changed since O's proceedings, and I will deal with that separately in a moment. There were three aspects of the mother's presentation which remained of concern in O's proceedings. They are identified at paragraph 17 and I identified some improvements which had been made by the mother in paragraph 18 of my judgment. So far as those features are concerned, they remain as features by way of background to the present proceedings as well. The Local Authority in O's case had decided tentatively to proceed with the rehabilitation of his care with the mother. There needed to be (as I identified in paragraph 25 of the judgment) a number of issues to be addressed by the mother: (i) there was a need for engagement with therapeutic support and counselling; (ii) an assessment of the mother with a 'virtual baby' was to be undertaken; (iii) relocation away from the maternal grandmother was certainly preferred at that time; and (iv) there was a need to improve the mother's poor support network. So far as those features are concerned, (as I have said) the one which has particularly been addressed between O's proceedings and E's proceedings is that the mother has finally relocated away from the maternal grandmother, and that is certainly a step to be commended. I should indicate that in paragraph 33 and onwards of O's judgment I addressed those issues and the situation so far as the mother was concerned. At paragraph 34 I noted that the mother had attended only thirteen of the twenty-three contact sessions in O's case. Furthermore, at paragraph 35, that she had attended some and some only of the sessions with the therapist Sue Stronach, and therefore the mother's counselling/therapeutic needs were substantially unaddressed. There was a clear indication that the mother needed to avail herself of something of the order of eighteen months at least long-term psychotherapy to make progress with her difficulties. At the time of O's proceedings (as I note in paragraph 36) the mother had not relocated away from the maternal grandmother. At paragraph 37 of the judgment of March 2013, I indicated that the mother still had a very poor support network. Then in paragraph 38, I indicated that the mother's relationship with social services was at that time an extremely poor one. One of the issues which emerged comparatively late in O's proceedings was the fact (as I note at paragraph 40) that the mother had been prescribed anti-depressants and that had been the position for a significant period of time. That situation was not fully divulged to the key social worker in the case, and the mother's intermittent depression was thought to be a continuing feature. Another issue was the mother's practical care (as I note in paragraph 41). Her experience with the 'virtual baby' was an unhappy one. The mother's stamina and perseverance were found to be wanting and for periods of time the mother simply switched off the 'virtual baby'; a situation which of course could not be replicated if she were actually caring for her own child. Her emotional lability was very much to the fore in the earlier proceedings, a situation which continues from time to time and has not really been addressed by the mother herself. That then was the general background to O's proceedings. The background in the current proceedings The application for a Care Order was made in June 2014, very soon after E's birth. There had been a Child Protection Case Conference on 4 th June 2014 pre-birth, which led to E's registration. That was hardly surprising bearing in mind the mother's parenting history (which I have outlined already). There was an application for an Emergency Protection Order (which was granted), followed by an Interim Care Order, and E was placed with Local Authority foster carers. So far as removal was concerned, that was extremely problematic and the documentation in the trial bundle confirms the difficulties in that regard with respect to the mother's behaviour at hospital and thereafter. That is perhaps a further instance of the mother's emotional lability which has not totally been addressed and controlled. So far as the proceedings involving E are concerned, the Local Authority initially made arrangements for the mother to have contact twice a week, that contact to be supervised. The mother's attendance at E's contact had been poor since the end of July 2014, and that led in due course to the Local Authority issuing and obtaining an Order under section 34(4) of the Children Act 1989. I should indicate that such an Order during the currency of Care proceedings is an extremely unusual Order for the Court to make and was an indication of the lack of contact which had taken place between the mother and the child in this instance. The mother has attended (as I understand it) only six contacts since E's birth, and has attended no contacts for the last sixteen weeks or so. That poor engagement with contact is replicated in this instance by the mother's poor engagement in these proceedings. She attended reasonably well up to the Issues Resolution Hearing on 14 th November 2014, but at that hearing provision was made for a further hearing on 24 th November 2014, to consider the interim application for a section 34(4) Order. On that occasion, the mother did not attend; she has not attended Court today. The indications from her are that she (although unable to consent to the Local Authority's applications) effectively realises her difficulties and puts up little by way of actual challenge to the applications that have been made. Mr Dodd who appears for the mother is without instructions and he has not been able to cross-examine any of the Local Authority's witnesses. He made oral closing submissions to me with regard to the mother's present circumstances, but bearing in mind the difficult position in which he was placed, it is hardly surprising that very few features could be advanced on behalf of the mother by way of resistance to the Orders which are sought. The Local Authority obviously conducted a number of assessments with regard to the mother's capabilities. They have produced a Final Care Plan which proposes a closed adoption for E. There will be indirect post-box contact only on one occasion per year for the mother and by way of inter-sibling contact as well. I should indicate that the threshold of "significant harm" under section 31(2) of the Children Act 1989 was established, that being recorded on 6 th October 2014 in a Court Order at page B21. The Guardian Miss Fozzard who has produced her final report dated 13 th November 2014, supports the Local Authority's application for reasons which are set out within that report itself. Having previously identified the features which have appeared historically so far as the mother is concerned, I should in fairness indicate those features which persist and of course those features where the mother has made progress. The key respect in which the mother had made progress is that she has moved further away from the maternal grandmother. In August 2013, she moved to her present home in X [name of village given] and that (as I have said already) is a substantial step forward. The therapeutic assistance still has not been provided; that remains outstanding and the mother's difficulties in that regard therefore are unaddressed. Provision was made for the mother to attend a Nurturing course with Action for Children (see C48). She attended only one of those sessions, in May 2014. The position with regard to poor engagement in contact which was evident to some degree in O's case, and is far more marked in E's case (as I have outlined already). That is by no means an insignificant feature. It reflects firstly upon the issue of commitment, but it also impacts in this case upon the mother's practical parenting skills because it is in contact, of course, that the Local Authority has the opportunity of considering and assessing those skills, and in O's case (as I have mentioned already) the mother's practical parenting skills were found to be wanting. Her ability to deal with a 'virtual baby' (as I have noted already) was not evident, and the Local Authority could only assess her progress in E's case if of course she was actually attending for the contact sessions, which she had manifestly failed to do. The other issue which is problematic is the mother's engagement with PS/CS. He may or may not be E's father. As I have indicated already, the position with regard to that is an uncertain one. But the mother's continued association with PS/CS is not a beneficial one by any means. At pages F28 to F33, there is a significant amount of information by way of non-conviction information provided by North Wales Police which indicates the destructive nature of this relationship. There are previous convictions recorded with regard to both individuals and it is evident that so far as PS/CS is concerned, he is by no means a supportive partner for the mother; indeed, directly to the contrary. There are mixed indications with regard to whether that association persists. The mother was anxious during the course of these proceedings to indicate that she was keeping her distance from PS/CS. However, there are indications to the contrary, particularly in May 2014 when it appears to be the case that PS/CS provided for the North Wales Police (and perhaps the Magistrates as well) the mother's address in X [name of village given] as a bail address from himself. There is an indication that a Police Officer attended the mother's address on 3 rd May 2014, where the mother apparently accepted that she was in some kind of relationship/association with PS/CS. It is right to say that subsequently the mother indicated in June 2014 that her relationship with PS/CS was at an end, but (as I have said already) the mother's non-attendance today effectively means that this situation cannot now be examined in any detail and I simply have no idea what the present position is. Certainly, there is an indication (very shortly before the commencement of these proceedings) that a relationship/association of some kind was certainly persisting. The mother's hostility to social services remains really as a given feature in the case. It may have abated somewhat, but the details of E's removal at C29 to C33 give some indication that it has not absolutely disappeared and the mother is always suspicious of social services and their interaction with her. Accordingly, if one looks at the position overall, with the exception of the single feature of the mother now distancing herself from the maternal grandmother, nearly all of the other features identified in O's case persist in this case as well. The legal provisions which have to be considered Firstly, so far as the Care Order is concerned, if the threshold of significant harm is established, next I have to consider the Local Authority's Plan for E having regard to the paramountcy of her welfare, and I have to apply the so-called 'checklist' provisions under section 1 of the Children Act 1989. In accordance with the Convention, the Care Plan has to be a proportionate and a necessary response to the risk of harm. In the case of Re B [2013] 2FLR 1015 a Care Order which deprives a birth parent of his or her care of a child, particularly where that involves a placement outside the birth family by way of adoption, is to be considered as a last resort, and in cases involving adoption a consideration of the 'pros' and 'cons' of each placement option is required. So far as that is concerned, the Local Authority itself has conducted that exercise, as indeed has the Guardian. I will deal separately with the specific legal requirements for a Placement Order, but the division of this judgment into these separate headings is intended to provide a structure for the judgment and to assist with its clarity, but it is not intended to restrict my proper holistic evaluation of the central welfare question and I am well aware of the observations of McFarlane LJ in the cases of Re C [2013] EWCA Civ 1257 at paragraph 28 and 29. So far as the Threshold is concerned, as I have indicated already that was found to be established by the Court in an earlier determination. So far as the application for a Placement Order is concerned, that application was issued in November 2014. It is accompanied by a statement of facts and an Annex B/Placement Report in E's case. The Agency Decision Maker made the appropriate recommendation on 17 th October 2014, which predated the issuing of the application itself. Therefore, the preliminary requirements of the Adoption Agency (Wales) Regulations 2005 (as amended from 1 st September 2012) and section 18(2) of the Adoption and Children Act 2002 have been established. In accordance with the guidance given in the case of Re B-S [2013] EWCA Civ 1146 (as I have said already) there is a 'pros' and 'cons' analysis undertaken by the Local Authority and the Guardian, which I have considered in detail. Since I have made Threshold findings, I have jurisdiction both to make a Care Order and a Placement Order, in the latter instance under section 21(2)(b) of the Adoption and Children Act 2002. The Care Plan has to be scrutinised having regard to the paramountcy of E's welfare under both section 1 of the Children Act 1989 and section 1 of the Adoption and Children Act 2002, and I have to apply the 'checklist' provisions under both statutes to the facts of this case. The Plan has to be a proportionate and necessary response to the risk (see C and B [2011] 1FLR 611 ), where examples were given of the kind of cases where intervention and permanence outside the birth family might be appropriate. This case, in my judgment, falls squarely within that category. As I have said already, adoption has to be considered as a last resort ( Re B [2013] 2FLR 1075 ) . I can only make a Placement Order if the mother's consent (as the only parent with parental responsibility) is dispensed with under section 52 of the Adoption and Children Act 2002. I can only come to that decision by applying the paramountcy of E's welfare throughout her life, and by applying the provisions of section 1(4) of the Adoption and Children Act 2002. That section also has to be considered when I make a decision which relates to E's adoption, which includes of course the making of a Placement Order, and that is the combined effect of section 1(1) and section 1(7) of the Adoption and Children Act 2002. I have to answer the question to which section 52 gives rise by applying the statue to the facts of the case, and (as I have said already) the Order has to be a proportionate and necessary response, because E's Convention rights are engaged. What has to be shown is E's welfare requires adoption as opposed to something short of that, and that has the connotation of the imperative; what is demanded. I bear in mind the suitability of all other Orders. I would not make any defined Contact Order for face-to-face contact in this case under section 26 of the Adoption and Children Act 2002. The indirect contact provision proposed for the mother and inter-siblings is entirely appropriate post-adoption. Adoptive parents in this instance, I believe, would not wish to promote direct contact bearing in mind the history. There would be a significant risk to placement stabilisation, in part because of the mother's own emotional lability but also because the mother would not, I believe, be able to modify herself to the new role which she would have to undertake in E's life so far as that contact would be concerned. There would therefore be a significant risk, I believe, of placement destabilisation, and the imposition of direct contact in this case would hamper the placement search and may well risk derailing the Plan from the very outset. I do not propose to quote verbatim the 'checklist' provisions under the Children Act 1989 and the Adoption and Children Act 2002, but I apply the provisions in the following way. Having regard to those features I have identified already, and despite the changes in some respects made by the mother, I am afraid the overall nature of this case is that the mother's circumstances have not really differed to any marked degree from her circumstances in O's case. Pursuant to section 1(3)(e) of the Children Act 1989 and 1(4)(e) of the Adoption and Children Act 2002, there is a risk, a real possibility, that significant harm might be done to E in the future if she were placed in the care of her mother. There is no real protective parent in this case. The harm potentially is two-fold. There is the emotional harm which might be done bearing in mind the mother's behaviour evident historically, but there is also the very real possibility of neglectful care by the mother. I do not believe the mother deliberately would wish to harm E, but I believe that her persistence and perseverance in caring for her might be found wanting, and E could easily slip into neglectful care and perhaps the possibility of accidental physical injury as well. That is a risk bearing in mind (as I have said already) the mother's stamina and persistence in being able to manage the daily grind of childcare which has not always been evident historically. This feature of "harm", of course, is a significant one and it illuminates all the other statutory considerations adversely from the mother's point of view. Even if E could articulate a wish to live with her mother, that wish could not possibly be acceded to without a grave risk to her physical and emotional safety. She requires (at only five months of age) nurturing and she requires warm and attentive parenting, and having regard to the mother's track record in this case, how could I possibly have confidence that this could be provided by her birth mother? So far as inter-sibling relationships are concerned, the position there of course is a somewhat confused one. Two of the mother's children are with Local Authority foster carers, one child is with the birth family. Other children have been adopted. There is the possibility perhaps of E being placed with the adopters of some of E's siblings, but the position remains an uncertain one. If that were, however, to be the case, there would be the prospect that E would have a common upbringing with at least some of her siblings. If that were not the position, there would still be the possibility perhaps of contact between siblings who are themselves subject of Adoption Orders. So far as the siblings who are not placed outside the birth family are concerned, the Local Authority have proposed indirect contact; so in that manner at least there would be the preservation of some link. But so far as the future loss of sibling links as a whole are concerned, the position in this case is a somewhat uncertain one, at least at this juncture. If, however, there were to be the total loss of that inter-sibling relationship (in the sense that siblings are brought up together), that, I am afraid, is a position which historically has emerged as a result of the mother's poor childcare. The fact remains that the mother's children in general have not been brought up together because of her inability to care for all of her children, and therefore that feature has to be assessed having regard to the realities of the case. But in any event, even if there were to be a loss of that future inter-sibling relationship in E's case, and also the loss of the parental relationship with her mother, that has to be balanced with the potential gain of a legally safe and secure and hopefully stable adoptive placement with adopters who would view E as their own child, being able to commit fully to her and providing her with appropriate and loving care buttressed by the security of an Adoption Order. That, I judge, would be a far more normal childhood than a childhood in foster care, which of course is the only other realistic alternative in this case since no other familial carer has been identified. Such an upbringing for E outside the birth family with committed adopters would be more likely, in my judgment, to promote firm and secure attachments for her, which would benefit her during her childhood and into her adulthood and help her with her own future relationships, providing her with a future template for parenting herself and her future capability as a parent herself in due course. I am required of course, under section 1(4)(c) of the Adoption and Children Act 2002 to consider the likely effect on E throughout her life of having ceased to be a member of her birth family and of being an adopted person. Within that context, I have to consider what sort of family life this would be for E if she were placed with her birth mother, and I remind myself that this adoption is intended crucially to promote E's safety as an essential prerequisite for a happy childhood and as a building block for a healthy adulthood. I have to assume that E at some stage will require an accurate account of why she was removed from parental care as part of her life history as she grows into adulthood. It is perfectly true that an adopted child might emerge into adulthood resentful of being removed from his or her family of origin, and I accept that this kind of resentment can in these circumstances de-stabilise, disadvantage and disable a child thereafter as an adult during the course of his or her life. Much, of course, will depend upon E's experience of adoption, but in this case my decision is promoted by an overwhelming imperative to promote her safety during her childhood without emotional harm and without the possibility of physical harm and neglect. And if E has that knowledge available to her in due course, and applying a mature judgment, she will on balance, I believe, be more likely to accept my decision today and emerge hopefully and securely as a grounded adult herself. On the other side, I have to ask myself would E emerging into adulthood with the benefit of the familial care which would be available to her in this case, have a better prospect so far as the future is concerned or a lesser prospect? What would be available for E if adoption is not available for her? It would be a childhood in the Care system, in foster care with the artificiality and the uncertainty of family life, Looked After Reviews, social worker visits, Looked After Children Medicals; that is not ordinary family life and that is not the best that can be provided for E in this case. As the Guardian has said (see E19): "E requires stability and security and to be kept safe from emotional and physical harm throughout her childhood. She requires parents who are responsive to her needs and that will allow her to develop to her full potential. E needs to have the opportunity to enjoy a secure and consistent home environment with a family who is able to meet her physical and emotional needs and ensure that she is safe from the risk of harm. Whilst adoption will deprive E of the opportunity to have a meaningful relationship with her mother as she grows up, in reality her relationship with her mother is not her most significant relationship. In my view, E needs a secure and a safe future which is paramount to her well-being." Having considered, therefore, the Local Authority and the Guardian's assessment of the various factors both for and against adoption, a familial placement and long-term fostering, I believe that the balance overwhelmingly points in this case to the requirement of a Placement Order being necessary and proportionate in these particular circumstances. Accordingly, having found the Threshold to be established, I approve the Local Authority's Care Plan for E and I grant a Care Order in this case. So far as the application for a Placement Order is concerned, again having considered the 'pros' and 'cons' analysis and the 'checklist' under section 1 of the Adoption and Children Act 2002, I dispense with the mother's consent to the making of a Placement Order and I make a Placement Order for E. There will be no Order as to costs inter partes save for the usual public funding assessment for the mother and for the child. End of judgment BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII