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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> X (care and placement orders), Re [2018] EWFC B25 (11 May 2018)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B25.html
Cite as: [2018] EWFC B25

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IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. Neutral Citation Number: [2018] EWFC B25 (Fam)

IN THE FAMILY COURT AT OXFORD AND IN THE MATTER OF THE CHILDREN ACT 1989, THE ADOPTION AND CHILDREN ACT 2002 AND THE FAMILY LAW ACT 1986

11th May 2018

B e f o r e :

: HHJ Vincent
____________________

Between:
A COUNTY COUNCIL Applicant
and
and
(acting by her children's guardian) Second Respondent

____________________

Miss Kate Ferguson for A County Council
Mr Paul Froud instructed by Brethertons for the First Respondent mother
Ms Jennifer Kotilaine instructed by Oxford Law Group for the child

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Introduction and background

  1. This is the final hearing of the local authority's applications issued on 3rd November 2017 for a care order, and on 16th March 2018 for a placement order, in respect of X.
  2. X is two and a half years old and until 1st November 2017 she had always lived in the care of her mother, M.
  3. D is named on X's birth certificate but DNA tests have confirmed that he is not her biological father. Accordingly, with the agreement of all parties I have made a declaration that he is not her father. His parental responsibility for X has been discharged and he has also been discharged as a party in these proceedings.
  4. M did suggest a man called L might be X's father but she has not provided details of his whereabouts, date of birth, or other means by which he might be contacted. I am satisfied the local authority has taken all reasonable steps to try and trace him, without success, and it would not be proportionate to delay these proceedings to take any further steps to find him.
  5. M is forty. Since she was fifteen she has struggled with an addiction to drugs, mostly heroin, and although there have been periods of time when she has not misused drugs (most recently she says she was clean for six years), the trigger for these proceedings were concerns that she had once again lapsed into drug misuse. In March 2017 the mother's landlady made a referral to the local authority, worried that the mother was living in a property which she had been told was uninhabitable due to drainage problems and the presence of asbestos. Home visits were made. There were significant concerns about the conditions in the house, that the mother was using illegal drugs, and the care that she was providing to X. In August 2017 M was evicted from her property and moved to Wales with X. During the three weeks or so that she was there, there were reports of her injecting heroin in X's presence, in particular, being sighted going into a public toilet with X every day for a week and remaining in there with her for about an hour at a time, of her being homeless and staying at addresses with people who posed a risk to her and to X. M says these reports are untrue, that she was not evicted from her property, and that X has always been well-cared for by her.
  6. Having considered evidence of the local authority's very significant concerns for X while she was with her mother in Wales, HHJ Hughes made an emergency protection order on 30th October 2017. These proceedings were then issued and I made an interim care order on 6th November 2017. X has been with the same foster carer since her removal at the end of October, and is doing very well.
  7. M is a very vulnerable person who has been fending for herself since she was fifteen, has struggled with a long-standing addiction to drugs, and has been the victim of domestic abuse from three significant relationships. She has a daughter, C, eighteen, who was removed from her care when she was eight but returned in her late teens and is due to have a baby of her own the baby is currently about a week overdue. M's middle daughter O, now seven, lives with her paternal grandparents.
  8. M attended the first day of the final hearing. Although she had not fully participated in these proceedings until then, she sat down with her counsel and prepared a response to threshold, and a witness statement. She willingly gave evidence to the Court, expressing herself clearly and with confidence. She would like X to return to her care, or if not to her, to the care of C and her partner N. She has not provided hair strand tests for drug use, but she honestly told the Court that she continues to take heroin daily, and cocaine less frequently, but still around once a week. She told me that she has worked hard to be accepted onto a drug rehabilitation programme in Wales and is due to start a prescription of methadone next week. At the moment she does not have anywhere to live, but she is doing what she can to find accommodation in Wales, where she has chosen to relocate, to be near to C and her partner N.
  9. The mother chose to return to Wales at the end of the first day of the hearing, planning to return the next day. She said she did not wish to leave C. Regrettably the local authority did not issue her with a travel warrant and although she desperately wanted to come back, she could not pay for a rail fare. The Local Authority offered to pay for the mother to stay in a hotel but this was not accepted by the mother as her intention was to return to Wales overnight due to C being in the end stage of pregnancy. This meant that she missed the second day of the hearing, when the guardian gave evidence and submissions were made. I regard it as most unfortunate that she was not assisted by the local authority to return to Oxford, and on behalf of the local authority Miss Ferguson did apologise to the mother and to the Court. Because the mother was not able to attend when I gave judgment, I decided to tell the parties' representatives the decision I had made at the end of the case, but to provide this judgment in writing, so that the mother could fully understand my reasons.
  10. The local authority's plan for care and placement orders are supported by X's guardian.
  11. As I said in Court, I was very grateful to all the barristers in the case for their assistance, but I particularly singled out Mr Froud for his efforts. Although the mother had not attended all the previous hearings and her solicitor had not found it easy to keep in touch with her, he took full instructions from her at Court and in a very short time he helped the mother to prepare a statement and response to threshold. In cross-examination and in submissions he did all he could to argue her case, fairly and with sincerity.
  12. The law

  13. I must first consider whether the threshold for making any orders as set out at section 31 of the Children Act 1989 is crossed.
  14. If the local authority establishes that threshold is crossed, the Court then goes on to consider what orders should be made, having regard to all the circumstances of the case and with particular reference to the factors set out at section 1(3) of the Children Act 1989.
  15. Whenever a court is coming to a decision relating to the adoption of a child, the Court must also have regard to section 1 of the Adoption and Children Act 2002, in particular the factors set out at the checklist at section 1(4) of that Act.
  16. With respect to the application for a placement order, section 21 of the Adoption and Children Act 2002 states that the Court can only make a placement order against parental consent where it is satisfied that consent should be dispensed with.
  17. In reaching my decision X's welfare is paramount and her welfare has been at the forefront of my mind throughout this hearing. The court should not make any orders unless it is satisfied that it is both necessary and proportionate to secure X' welfare the Court must take the least interventionist approach.
  18. I have regard in particular to the case of Re B [2013] UKSC 33 in which the justices of the Supreme Court considered the approach the Court should take where the local authority's application is for adoption. Lord Neuberger said at paragraph 104 of his judgment:
  19. ' adoption of a child against her parents' wishes should only be contemplated as a last resort when all else fails. Although the child's interests in an adoption case are 'paramount' (in the UK legislation and under article 21 of UNCRC) a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.'

  20. Baroness Hale said at paragraph 198 of Re B:
  21. 'Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.'

    Evidence

  22. I heard evidence from X's social worker, from the mother and from X's guardian.
  23. There is no doubt that X's mother loves her very much and that there have been times when she has been able to give her the attention she needs, dress her well, and manage her daily routines. However, there is also evidence from social workers in A and Wales, from police reports and notes, that suggest that there have also been times when the mother's care of X has been chaotic, and she has not been able to provide her with consistent care, but in fact has exposed her to a number of sudden and unplanned house moves, to risky individuals, and that her relapse into drug misuse has created difficulties because she has not been able to prioritise X's needs before her own need to take drugs. As a result, X has suffered harm and been at risk of harm in her mother's care.
  24. The mother denied that there had been any problems at all with her care of X and said that she always took good very care of her.
  25. Although I listened carefully to what the mother had to say, I have to consider all of the evidence in the case, and the overwhelming weight of that evidence contradicts what the mother says. In my judgment her descriptions of the way she looked after X were idealised and not consistent with the evidence I had from contemporary notes made by professionals including social workers, health visitors and the police. In particular, the Social Worker's evidence reflected not just the reports she had received from other people, but was also based on her own knowledge of X and her mother, built up through a number of visits made to the family in [county anonymised] and Wales.
  26. I was impressed by the Social Worker as a witness, and I accept and prefer her evidence about the care X received to the evidence given by M. The Social Worker's evidence showed a good understanding of the mother's situation, of X's needs and the mother's capacity to meet those needs. She has prepared three statements, the permanence report, and a viability assessment of C. Her parenting assessment was balanced and fair, even though she had not had the benefit of the mother's input into the sessions, she did her best to acknowledge positives that were there, and she took them into account.
  27. The viability assessment of C and her partner N was prepared after a face-to-face meeting with them, the Social Worker having already met with C twice before. I found the assessment to be comprehensive and to show a good understanding of the dynamics in the family. The assessment does acknowledge the positives; in particular that C and N have a large, clean home, a stable relationship, and that there is an existing bond between C and X. However, C is a very young first-time mother and she has not had an easy childhood herself, spending a number of years in care following years of living with her mother when there were significant concerns about neglect, exposure to drug misuse and domestic violence. C loves her mother very much, but there are difficulties in the relationship. The Social Worker considers C might find it very difficult to set boundaries around M's contact with X because she would not want to act in a way that might seem disloyal to her mum. This would mean it could be difficult for C to protect X from her mother, for example if M was at that time struggling with her drug addiction and finding it hard to prioritise X's needs before her own.
  28. While the Social Worker considered N as a possible protective factor, because he could be more objective about M, the fact is that he does not get on with her at all and the risk is that C would be put in a very difficult position, stuck between her partner and her mother. When M first moved to Wales with X she was living with C but this arrangement broke down fairly quickly. This is in my judgment not a good indicator that C and her mother would be able to manage the relationship were X to be placed with C in the long-term. The Social Worker also raised the concern that when M was moving to different places in Wales and not responding to attempts by the local authority to contact her, C was not able to take any steps which might have improved the situation for X. Looking after two very young children as well as managing a complex relationship with her mother so as to protect X and keep her safe from harm is asking a very great deal of this young couple. They have been given an opportunity to challenge the viability assessment but have not done so. While I am sure they would wish for X to remain within the family if at all possible, I agree with the Social Worker's assessment that placement of X with C is not a realistic option.
  29. Threshold

  30. I have had regard to the mother's own responses to threshold, to the evidence she gave to the Court, and to the contents of the bundle and checklist bundle. I am satisfied that each of the threshold grounds is made out and that X suffered physical and emotional harm when in her mother's care at the time protective measures were taken, and that she would be at risk of physical and emotional harm attributable to the care given by her mother if some form of order were not made.
  31. In summary, the matters I find proved which mean that threshold is crossed are as follows:
  32. a) X's mother has neglected her basic needs. X was seen on occasions to be grubby and unwashed, the home conditions were poor, she was exposed to passive smoking (for example there is a record from the police that the mother was asked to stop smoking when X was sitting on her lap and refused). X's diet was unhealthy and irregular, and when X first went into care her vocabulary was limited to around two words.

    b) X has been exposed to her mother's long-standing drug and alcohol abuse. The mother frankly admitted in Court that while she was about to start a treatment programme at the moment she currently takes heroin daily and cocaine weekly;

    c) M has not shown any insight into the concerns raised by professionals and denies or minimises them. She has not engaged with the parenting assessment during these proceedings;

    d) Between being evicted from the family home on 4th August 2017 and being removed under the EPO on 1st November 2017 X was at risk of significant harm in her mother's care as she tried to establish a new life for herself in Wales. In particular:

    Welfare

  33. The threshold for making orders being crossed, I must decide what order the Court should make, having regard to the factors set out at section 1(3) of the Children Act 1989 and 1(4) of the Adoption and Children Act.
  34. In her analysis the Social Worker sets out clearly the risks she identifies to X were she to return to her mother's care. In the Social Worker's professional view, X would not be provided with safe, stable and consistent care, she would be at continuing risk of harm through neglect, exposure to risky individuals and drug use and the emotional difficulties caused by her mother being unable to prioritise her needs. This would have an impact on her development in all areas of life, for all her life. The Social Worker's parenting assessment looks at the mother's ability to make and sustain changes and while she notes there have been improvements in the past, they have not been maintained. M is not currently in a position to have X return to her care. It is very positive for her that she is engaging with a drug rehabilitation service, but, as she will know, the timescale for change is many many months, and once she does again stop using drugs, the prospects of her being able to sustain those changes so as to be able to care for X throughout her childhood are not good.
  35. The Social Worker considers whether there are measures of support that could be put in place to support M, but concludes that because she has minimised the difficulties she has had, and she has found it very difficult to engage with support services, she does not think it is realistic to consider that the mother would be able to work with the local authority for X's benefit.
  36. The Social Worker's conclusions are balanced and well-reasoned, and supported by the evidence that she has given to the Court.
  37. I have had regard to the guardian's report which is balanced, and fairly scrutinises the care plans. He is very sympathetic to M's predicament, acknowledges there have been positive elements to her care of X and notes that life has not been at all easy for her, but sadly ultimately comes to the view that X's needs can only be met throughout her whole life by care and placement orders.
  38. The Social Worker and the guardian in their evidence consider fully the consequences for X throughout her whole life of severing ties with her birth family, of growing up not knowing C, C's baby, her half-sister O, and her own mother. She is likely always to feel the loss of her family, and may as a result find it difficult to form a lifelong and secure attachment to a new family.
  39. They both consider long-term fostering as an option, but I agree with their views that this is not a realistic option in the circumstances of this case. X is very young, and, as C did when she was in foster care, is likely to face a number of placement moves throughout her life. M has struggled to make the commitment to regular contact even during proceedings so it is questionable whether she could provide that continuity of contact throughout X's childhood. There is much to recommend foster parents, and they are supported by a framework of local authority support, but they are employed to care for a child, it is not the same as being a full member of the family. Foster care comes to an end at the end of childhood and there is then a risk that X would seek to reconnect with her mother in an unplanned and unsupported way; this could present a risk of harm to her. Adoption offers her the prospect of a secure and stable place in a family for her whole life. Her new family could support a reconnection to her birth family in early adulthood if she wanted, the chances are that it would be in a more planned and safe way than if she was no longer in the care of a foster family. Statistically, X is much less at risk of the adoptive placement breaking down than if she were to be placed in foster care.
  40. X does appear to have some needs over and above those of a child her age, due to the neglectful parenting she has received. In particular the guardian has highlighted his concern that when she first arrived in foster care her language was poor, and she struggled to play with toys or take an interest in books, appearing unfamiliar with them. He has also noted that while she does appear happy to go off with any adult, she has at the same time developed separation anxiety in respect of her foster carer and becomes very upset if she is out of her sight. She appears already to have developed some obsessive behaviours. The guardian is concerned that all these traits reflect X's responses to the trauma and neglectful environment in which she has lived. However, with consistent care and loving attention X has thrived in foster care and it is highly likely that she would continue to receive a very high standard of care were she to be adopted into a new family. Adoption would provide her with permanence and stability, and a sense of belonging.
  41. While I do not underestimate the pain of separation for her and for her family, X can be supported to a certain extent to cope with this by sensitive life story work and letterbox contact.
  42. Assessments of other family members have been carried out but sadly, for the reasons given, the placement with C and N is not in my judgment realistic. There is no other friend or family member in a position to provide a placement to X for the rest of her childhood.
  43. I am satisfied that the children's guardian has carried out a thorough analysis of the evidence and he has considered matters from X's perspective very carefully. His conclusions are well-reasoned, fair, and supported by the evidence within the bundles. There is no good reason to depart from his recommendations.
  44. The very sad situation for X and her mother is that on the evidence before me I am satisfied that the only realistic option for her is that she should be separated from her mother and placed for adoption. M loves X very much indeed and I am sure she would desperately like to have the chance to care for her once again. However, on the evidence before me, I regret that I consider she is not able to look after X and meet her physical, emotional and behavioural needs now or throughout her childhood. In my judgment if X were returned to her mother's care she would be at risk of serious harm.
  45. Having had regard to all the factors on the two checklists and all the evidence in this case, I have come to the conclusion that separating X from her mother by the making of care and placement orders is required in order to safeguard her welfare, throughout her life, and I am satisfied that nothing else but this extreme order will do to meet her welfare needs.
  46. I will make a care order to the local authority and I will dispense with the mother's consent to a placement order because I consider that X's welfare needs require me to do so.
  47. The parties agree that by the declaration I have made in respect of D, he no longer has parental responsibility for X, but for the avoidance of doubt, I make it clear that I also dispense with his consent to a placement order.
  48. I approve the local authority's proposals in respect of contact. There has been some positive contact, but there have also been some missed contacts and one contact where the mother was turned away because staff considered she presented as under the influence of drugs or alcohol. There is an attachment between X and her mother but the security of that attachment is questionable, according to the guardian. In all the circumstances I agree with the guardian's assessment that it would be of little benefit to X and would only prolong the pain and suffering of the mother to increase contact beyond the further two which are now proposed the next contact and a farewell contact (C joining in if she wishes). I agree with the proposals for letterbox contact between X and her mother and siblings.
  49. I would like to echo the guardian's words in his report about the mother where he makes clear his sympathy for the mother's situation. I agree with him that it is not the mother's fault that she finds herself where she is; there are complex reasons for her having become caught up in a life of addiction. I believe her when she tells me that she would never wish X to suffer or to be caused any harm, and only wants the very best for her. I acknowledge that there have been periods of time where she has been clean from drugs. I fully accept what was said to me on her behalf that she most sincerely and bitterly regrets that she has once again found herself in the grip of addiction. It is my sincere hope that with the right help and support, she will be able to continue with the treatment she has started, and once again be free from the hardships that she has faced for the majority of her life as a consequence of drug misuse.
  50. Her Honour Judge Joanna Vincent

    11th May 2018

    Family Court at Oxford


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