B e f o r e :
HIS HONOUR JUDGE SIMON WOOD
||In the matter of:
||Re: E (A Child)
Transcribed from the Official Tape Recording by
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Counsel for the Local Authority: MISS A SEHAT
Counsel for the Mother: MISS D ADCOCK
Solicitor for the Guardian: MISS L COWELL
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- THE JUDGE: I am concerned with the welfare of B, a girl born on [a date in] February 2013. Newcastle City Council on 28th June 2013 issued an application for a care order. It presents to the court a plan of permanence for B by way of a placement order leading to adoption. The plan is opposed by B's mother, M, who was born on 21st November 1992 and quite recently turned 21 and she denies that grounds exist for the making of such an order and seeks a return of B to her care.
- B's father is not known with any certainty. When B's birth was registered the mother identified him as F1, a man with whom the mother had been in a relationship and who did not seek to deny paternity. However, there was a degree of uncertainty and that was resolved decisively by a DNA test carried out which excluded him as the father. That has consequences for the court to deal with. By virtue of his name being on the birth certificate, he has automatically acquired parental responsibility for a child which is not his. B has been given the surname of a man who is not her father and in respect of whom there is no proposal by anyone that he play a part in her life. I believe that he did see her when she was a very small baby but he has not developed any kind of relationship with her. Accordingly I am asked, and no one seeks to oppose, to make a declaration of non-parentage and to give permission to the Local Authority to change B's surname.
- In the alternative the mother says that F2 is B's father. He was contacted some time ago, advised to seek legal advice and although numerous attempts have been made to contact him, and consistent contact with him has not proved possible, he told the social worker that he did not wish to take any steps that created an ongoing link between him and the mother, he did not want to care for B and any contact that he had with B ran the risk of exposing him to, as he put it, "volatility and grief". He has been written to. Whilst there is some uncertainty as to whether more recent correspondence has been received, the social worker's visits to his last known home on six occasions have not resulted in any further contact. He is believed to be in a new relationship and to be the father, or about to become the father, of a child of that relationship. Unsatisfactory though it is, the Local Authority and the guardian have satisfied me that all reasonable steps have been taken to ascertain B's paternity and in the unsatisfactory circumstances that I have described, it has to be acknowledged that B's father is not known.
- B's guardian is Marion Harris and she supports the Local Authority case which she, like all others, emphasise is a particularly sad one. Why does the Local Authority say that B is likely to suffer significant harm and that the likelihood of that harm is because B would not receive care that would be reasonably expected from a parent? This mother has had a very difficult start to life indeed. Described as extremely vulnerable, she had a dysfunctional childhood in a chaotic family home with a violent and alcoholic father and a mother who effectively rejected her. B is, in fact, her third child. C died in 2009 within two hours of birth. A was removed from her care at birth and he lives with his paternal grandparents under a special guardianship order made in 2012. B resided with her mother following her discharge from hospital until June when she was received into care.
- A common feature of each of the mother's pregnancies has been very premature babies. B was born at 30 weeks which is, in fact, the longest pregnancy to date, following C born at 23 weeks and A at 27. The cause for these premature babies is not known but it did, however, have the consequence of B remaining in hospital for the first six weeks of her life, being discharged to the mother's care in mid April. It has to be said, however, that these obstetric problems are not the concern in particular focus.
- The mother had been known by children's services from 2009 when she moved into the care of North Tyneside Council, it is said, because her mother was unable to manage her care. She was then 20 weeks pregnant. Assessments were undertaken as to her ability to live independently, her poor eating habits and her poor personal hygiene and a particular concern was her continued relationship with the father of that baby, C, F3, despite having been informed that he had been convicted of sexual offences. It appeared that she was unable to appreciate the risk that was thereby created.
- Of course, sadly, C died shortly after birth and so that particular concern went away but the children's services again became involved in January of 2011 just prior to A's birth. He was born with medical problems. He was in hospital for the first three months of his life but was discharged to foster care before being moved to the home of his paternal grandparents. He was never cared for by his mother because assessments concluded that she was unable to care for him given her mental health problems and her inability to demonstrate that she recognised the concerns that professionals had. It appears that the mother ended her relationship with F3 at about that time but was described as living a transient lifestyle, moving backwards and forwards between the homes of the two men, the two putative fathers of B, F1 and F2.
- On 29th September 2012 the mother notified the Local Authority that she was eight weeks pregnant. The Local Authority swung into action, undertook an initial assessment and an initial child protection conference was held which resulted in the unborn baby being made the subject of a child protection plan under the category of neglect. During her pregnancy the mother lived in Praxis which is a housing support service for homeless young people and a parenting assessment was undertaken. There remained concerns about the mother's mental health. That had been assessed in A's case by DráTyrie, so an updated assessment was then sought but emerging from this process it was agreed that, were B to remain in her mother's care, intensive support would be required and the Local Authority was prepared to entertain that and a mother and baby unit was identified at Elizabeth House which is a facility provided by a charity (well known to the court) called Aquila Way for young mothers and babies and it was agreed by the Local Authority with the mother that she would move there on B's discharge from hospital. Additional support was to be added, including the provision of a community foster carer and the mother moved to Elizabeth House at the end of April in anticipation of B's discharge from hospital.
- The Local Authority says, although the mother denies this, that it became almost immediately apparent that the mother was, in fact, struggling to cope with day to day living arrangements within Elizabeth House, was struggling with the support that was being offered by community fostering and despite support from Gateshead Mental Health Services, from the 24 hour staff at Elizabeth House, community fostering, the health visitor and a nursery nurse provided by the health visitor. Over the passage of time the concerns escalated. The risk to B was perceived to increase along with the risk to other mothers and babies living at Elizabeth House and that resulted in the mother's eviction on 21st June.
- Central to all of these concerns have been the issues regarding the mother's mental health. As I have said, there was previously an assessment by DráTyrie when A was born, a psychiatrist again well known to the court, who concluded that the mother suffered from a conduct disorder and had done so from an early age. There were features of defined and disruptive behaviour along with what she described as more pervasive difficulties warranting a diagnosis of unsocialised conduct disorder together with the characteristics of an emotionally unstable personality disorder with features of both the borderline and impulsive type. Predominating was the level of emotional instability and poor self image with a lack of insight into her difficulties and an inability to engage with services. With time, a gradual reduction in the more troubling aspects could be expected to occur but DráTyrie felt that that would not be within a time scale suitable for A. She advised that the personality disorder rendered the mother incapable of caring for that child in an appropriate manner or to provide him with a physically and emotionally warm, consistent and safe environment. She did not think that the mother could prioritise A's needs above her own such as to expose him to risk which she characterised as being emotional, physical and psychological.
- The question of mental health was recognised as one that needed to be re-visited with the Local Authority reverting to DráTyrie who saw the mother in late May at a time when B was living with her mother at Elizabeth House. DráTyrie noted that the mother had, in fact, made considerable progress. Drawing from several sources, including detailed information from B's social worker, Paula Archbold, she noted the fact of the mother's self referral of her pregnancy to the Local Authority, of seeking and undertaking bereavement counselling with regards to C and her early engagement with the Local Authority, as well as noting how much more emotionally stable the mother was. Her engagement with hospital during B's long hospitalisation was, along with her commitment to B, regarded as commendable.
- It was not, of course, universally positive as no one would have expected such but DráTyrie summed it up thus:
"By her own account and, indeed, this is supported in the report, there has been a reduction in some of the more worrying aspects of her previous presentation which, in layman's terms, may be described as an amelioration, although there are clearly still areas for concern. On the positive side she has engaged well with all professionals, attended appointments and co-operated with the majority of demands placed upon her. Her physical care of B is adequate. She appears to be very emotionally attached and has responded well to her baby.
On the negative it is clear that she does still have significant difficulties with interpersonal relationships. She has a tendency to have short-lived, volatile relationships with older men. Though not currently in a relationship, this does not mean that this is not a risk for the future. This pattern of relationship development is undoubtedly a reflection of her own extremely dysfunctional childhood and absence of good parenting experiences. She clearly has immense difficulties developing relationships within her own peer group, a tendency to verbal aggression, albeit this in itself may ameliorate over time with attendance at anger management. In addition there is her vulnerability, her tendency to put herself in potentially dangerous situations with older people, her chaotic management of money which in the long term could lead to possible physical neglect, that is to say she has not got enough money to care for herself or her baby."
Of the plan to progress through reducing levels of supported accommodation, DráTyrie said that there would need to be a robust package of monitoring at least until B went to nursery.
- Shortly after that report the placement at Elizabeth House unfortunately broke down. DráTyrie, without seeing the mother again, was asked to comment on the documents available and she wrote an addendum on 20th August drawing on Local Authority records, the chronology and some information from Elizabeth House, albeit not the full logs which she only saw at court, as well as the parenting assessment which had then been completed and the initial analysis by the guardian for the hearing of what was a contested interim care application. She reached a rather less encouraging conclusion. She said that she remained of the same opinion in terms of the diagnosis but added:
"Contrary to my previous opinion, noting her engagement particularly with professionals throughout this pregnancy, it would, in fact, appear that there has been a worrying change. It is clear that [M] is again struggling to engage with professionals and struggling to deal with constructive advice with regard to provision of adequate physical care for B. She responds in a defensive and, indeed, aggressive manner at times and this is in spite of her tearful concerns when I saw her of B being taken into care. It is my view that [M] is emotionally attached to her baby but I would suggest that this is at the level of an attachment to an object of her own, that is something that is hers rather than anyone else's, which is more than can be said of most aspects of her life. Anger management would go some way in helping her address her problems but certainly not all of her mental health problems and I have my doubts about capacity to attend and engage consistently.
As I indicated in July of 2011, long term psychotherapy would be the desirable treatment and this needs to be likely long term, albeit I note that the National Health Service currently tends to restrict treatment to two years only. A positive outcome is not always possible. I am of the opinion that it is highly unlikely that [M] would attend and engage with such therapy over a long term period. It is clear from the records that the package of care implemented with B's arrival was a fairly comprehensive one and that in spite of this and an awareness of the risk of B's removal, [M] has been unable in any way to moderate her behaviour and, therefore, I think that even with a long term, robust package of care and monitoring it must now be acknowledged that there would be a significant risk to the emotional, psychological and physical welfare of B if to be placed in the care of her mother."
She ended by saying that she did not believe that the mother would cause direct, physical harm to a child in her care. Nevertheless, the potential for a child to be caught in the crossfire due to one of her many angry altercations with others existed along with the potential for physical harm as a result of neglect of her physical care.
- Subsequent to this report the final care plan was drawn up on 12th September. The guardian reported on 20th September supporting the Local Authority case. There has been regrettable delay and the final hearing listed on 10th December was vacated due to lack of court time, a fate that this hearing also nearly suffered but was fortunately averted by the unexpected collapse of another case this week. The Local Authority continues to express its concerns. Whilst contact was set at four times a week when the interim care order was made in accordance with the interim care plan, by September it had reduced to once or twice a week and it has remained set at once a week ever since on the mother giving notice that she was going to attend but it has only been taken up sporadically. The mother has again had an unsettled and somewhat nomadic existence, variously living at Praxis on two separate occasions, in her own flat which she now seems to have abandoned and for at least two separate periods living with friends as she is at the present time. It is perhaps worth noting that, having given evidence earlier in the week, she failed to attend the hearing yesterday when submissions were made apparently due to lack of funds to travel to the court. It is regrettable that she is not present in court to hear this judgment being delivered. It is doubly so given, as I was told shortly prior to approving this transcript, that M was apparently in the building, with Ms Archbold, all along unaware of where the hearing was taking place despite a request for a message to be sent over the public address system.
- Against this background I turn to the threshold. That relied on is, in fact, the threshold found by this court on 16th July at the interim care application hearing on the basis that there were reasonable grounds for believing that B was at risk by reason of the facts found, the test under section 38(2) of the Children Act 1989. The Local Authority invites me to the view that the court can now be satisfied of the same facts under section 31(2) of the Act. The matters found were:
(1) that the mother experienced a difficult and dysfunctional childhood and exhibited difficult and disruptive behaviour from an early age. She was accommodated as a child due to her behaviour which her own mother was unable to manage, stating she was a risk to her siblings;
(2) she had a diagnosis of unsocialised conduct disorder in childhood and an emotionally unstable personality disorder with mixed features of both borderline and impulsive type in early adulthood. That diagnosis rendered her incapable of caring for A in an appropriate manner, being unable to provide consistent, physical and emotional care;
(3) the emotionally unstable personality disorder in adulthood affects the way in which she sustains interpersonal relationships, copes with normal life stresses and relates to inappropriate manner within society. She is prone to emotional outbursts, impulsivity, a chaotic lifestyle and in terms of her parenting abilities she has major difficulties in providing consistent, secure and emotionally warm parenting and secure boundaries;
(4) those factors have been observed at the recent deterioration in her presentation at Elizabeth House;
(5) B had been exposed to her extremely aggressive outbursts aimed at others, she is unpredictable and thereby unable to maintain a safe and secure environment for her. Further, she is not thereby consistently emotionally available for the child;
(6) on 21st June mother was evicted from Elizabeth House due to her behaviour. That was a recurring pattern. She had been threatened with eviction and on her third warning from St Helena's hostel in 2011 and was requested to leave Praxis in April of last year;
(7) the mother struggled to meet her own basic needs and, finally,
(8) she struggled to meet the basic needs of the child.
- Whilst the mother makes certain key concessions (she does not, for example, challenge DráTyrie's diagnoses), she does say that the diagnoses themselves do not prevent her from caring for B and, by way of other example, she admits being evicted from Elizabeth House but denies that the grounds were reasonable. So it is, of course, necessary for the court to consider the evidence relating to each and to make findings before it can begin to consider whether and, if so, what orders can or should be made. The court heard just four witnesses: the social worker, Paula Archbold, DráTyrie; the mother and the guardian.
- MissáArchbold has been the social worker throughout, the author of a very detailed parenting assessment completed, I see, after some 15Ż hours of direct assessment of the mother. This is a considerable piece of work and it has to be said an achievement for the mother to have been able to engage in to its natural end. The last session was in mid May. Its completion was delayed pending DráTyrie's initial report. It is not possible to do justice in summary form to this 25 page document but suffice it to say there were a good number of positives indicating the progress the mother had made since A's birth but overall the conclusion was that the improvement was not such that the mother could care for a baby. The mother's mental health concerns were variously ignored by her, disagreed with or minimised depending on the mother's mood such that it was the social worker's conclusion that she had not reached a level of stability necessary to care for a child safely in a nurturing or functional way so as to protect her and enable her to develop safely.
- In her oral evidence she pointed to the inconsistency of care, the inability to remain focused, her problematic loss of temper, the risk of both physical and emotional harm, all unintentional but arising from her behaviour in respect of which she appeared unaware of its consequences. This was all explored in some detail by MissáAdcock for the mother. The social worker credited the mother with spending the maximum possible time with B and bonding well with her during the very difficult and long stay in hospital, expressing milk, presenting a very different picture from her care of A but said that one could effectively overemphasise what occurred in hospital because it was a restricting and difficult environment for an assessment of M's ability to care, at least compared with that which followed in Elizabeth House
- She agreed that Elizabeth House was an assessment centre as opposed to a permanent home and that there was anticipated to be an eight to twelve week stay but she was unwilling to accept MissáAdcock's characterisation of an excessively restrictive regime. In terms of going out and the like, she pointed out that B was still a very premature baby, (by my reckoning she only reached term at about 7th May) and thus there had to be some fairly obvious restrictions for simple health reasons. She accepted that although there were conflicts over, for example, the time that the mother had to be back in Elizabeth House, she was generally compliant and if she was going to be late she phoned ahead to warn. She also accepted that there was understandable frustration at the intensity of the supervision, albeit she would not agree with the mother's characterisation of it as her being trapped.
- She fully accepted that in being able to describe the mother as she did in her assessment as having come a long way, being pleasant, warm, likeable and keeping B safe in basic tasks as well as showing emotional warmth, that was an achievement for this mother but pointed out that this all had to be balanced against the risk that she had identified in the same section of her report of the mother being prone to lashing out, shouting, crying and pacing around with B in her arms, on an occasion rocking, even shaking her vigorously, thereby quite unintentionally exposing her to both physical and emotional harm.
- MissáArchbold denied that the mother was evicted from Elizabeth House simply because of suspected alcohol and cannabis use; rather she said issues had arisen daily or almost daily with varying degrees of severity but in such a way that it resulted in the staff there concluding that other children were at risk from her behaviour. Whilst some of the mother's more florid remarks such as threatening to get drunk and use drugs could have been in the nature of throwaway remarks, she could not simply dismiss them as such because of the mother's history of doing exactly such things in the not too distant past. She denied the suggestion that the mother's behaviour had been exaggerated and said that increasingly the mother did not co-operate. The community foster carer, assigned to the mother for three hours a day five days a week, was increasingly concerned, as were the staff at Elizabeth House and in denying that the assessment there ended prematurely she said that, if anything, it was permitted to last too long because of the increasing concerns about B's well-being, not least over matters of basic care, cleanliness and hygiene.
- Those points were picked up by MissáCowell on behalf of the guardian and multiple references to aspects of basic care were highlighted with the possible link of B being taken to hospital three times with stomach problems. She felt that the quality of basic care when B was initially in hospital had perhaps been attributable to the high level of support that she got there and that even in Elizabeth House the contribution of the community foster carer also resulted in, perhaps, an exaggeration in the quality of care that was perceived to come from the mother. Thus, as she said, B could be nicely presented, well dressed and clean in her pram but go into her room and it would be found to be in complete chaos, dirty, untidy and smelly due to rotten food and discarded, used nappies.
- She also drew attention to confusing contradictions regarding the circumstances in which the mother had moved out of the flat, the tenancy of which she had obtained and others had moved into, a report from Praxis that she moved back because she could not cope and her vulnerability to people generally and men in particular who took advantage of her. Despite the mother's claims that her family supported her, the social worker believed that the maternal grandmother had only visited the hospital once or twice after B was born and no other family member ever visited and that, along with her own assessment of the maternal grandmother, to which I will briefly come, demonstrated how isolated she is.
- The maternal grandmother had been assessed as an alternative carer at the mother's request. It was a negative assessment. I have already mentioned the mother's difficult childhood. The poor nature of the relationship emerges from the assessment. MGM had variously called the mother a liar, had described having to keep her from the family home at times due to her behaviour which her husband could not always manage. Frequent arguments had caused her to ask the mother to leave because she simply could not manage her behaviour.
- DráTyrie gave evidence. She confirmed the opinions I have already summarised and noted, with sadness, how the earlier good signs had not been maintained. It was her assessment that for B to live safely with her mother she would need 24 hour care, pointing to the difficulties that arose at Elizabeth House despite the support of staff and others. She said that the chaos in her early life rendered it very difficult for the mother to take responsibility, to make plans or to organise things. That the mother was undergoing anger management would be helpful, as would psychological therapy, but it would need to be intensive and it would take time and she said, "I think she would struggle to maintain it". The level of support she would need would reduce the risk of physical harm to B but the emotional risk remained from outbursts of temper as well as her concerns about consistent mother and baby interaction. She felt that such a level of intense support would need to last until B was old enough to speak about things for herself.
- When questioned by MissáAdcock, she fully accepted that she had been initially more optimistic about the mother for the reasons I have touched on but those concerns remained even if it is was going in the right direction. She was disinclined to characterise the support at Elizabeth House as intrusive, pointing out that she would expect someone placed in such an environment at least to have the insight and willingness to co-operate with such a regime, however irksome, as part of the process of learning and moving on. She agreed that a multi-agency approach to support the mother and monitoring was necessary but she did not retreat from her view as to the intensity of the support that would be required.
- She agreed on being shown the notes from Elizabeth House that they were far from being unremittingly negative but pointed out the problem of sustaining the positives over a long period of time and so the negatives remained critical to the assessment of risk and those negatives were concerning because they involved behaviour that could potentially affect the care of B, notwithstanding her clear view that there would be no intentional hurt. Examples of the behaviour as described, such as the incident on 6th June which resulted in the Local Authority first asking the mother to agree to B being accommodated, as described by Elizabeth House at any rate, were, she said, classical of persons with the mother's psychological profile which one would hopefully be able to reduce by therapy if there was insight.
- The mother gave evidence. Her statement filed in September described how she felt that she had matured considerably since A was born and had significantly improved her behaviour such that she could recognise and respond to B's needs. Whilst pleased to have been given the chance to go to Elizabeth House, she felt that it was too pressured and she felt suffocated, trapped and isolated from others. She denied most of the complaints about her there but accepted that she was sometimes angry and moody due to the effect of suffocation and isolation. She accepted her anger and mental health issues and was accessing therapy via her leading care worker. She challenged the Local Authority's conclusion that she had presented a risk of harm to B and criticised DráTyrie's apparent about turn from her report to the addendum offering to do whatever it was that was required to care for B.
- She gave evidence at some length. It was hard for her, entirely understandably. There were frequent tears and one break. She is not unintelligent, she is quite articulate, she is capable of being quite feisty. Her devotion to her daughter shone through. She said, "I loved every minute of looking after B". She cut a very sympathetic figure. She said that she thought she had managed B perfectly fine to her knowledge. She had learned to budget, to meet day to day needs. She had been shown how to keep a food diary and it was really helpful. She had had a nursery nurse and the health visitor weekly to assist with an understanding of medical needs. She said, in contrast to what the social worker had said, that she was presently in reasonable health and had no concerns on that score. Going to the nub of the threshold, she said that the diagnoses that she accepted did not prevent her from being able to care for her children, DráTyrie and the social worker were wrong and the incidents that had been described had all been made to sound far more extreme leading to unfair criticism.
- When she was cross-examined, in relation to A she said that she had thought she could care for him but following his removal she realised that she had not been stable, was immature and not in the right frame of mind but things were different now. She acknowledged she needed support for certain things and other things had to happen before B could come into her care. She identified those as engaging in therapy, undertaking anger management and controlling her temper better. It was suggested to her that there was a risk of harm to B if she was exposed to an argument and she said:
"I would never harm her. What you would do is put B in a safe place and out of the way because otherwise she would be affected by it."
She denied the suggestion that she might inadvertently put her at risk of harm. She denied that B had ever been at risk of physical harm, she had not rocked her vigorously, she did not recall an occasion when she was asked to hand her over because of that to a worker and she denied that there had been an incident where B's head had nearly hit a door frame as she stormed out of a room. Essentially she said that everything that has been alleged against her was not true and that the Local Authority had wanted B out of her care from day one.
- She said that she did get agitated on occasions in Elizabeth House but had not lost her temper. She sought to draw a distinction between being annoyed and stressed as opposed to a loss of temper where you, as she put it, "lose it altogether and go crazy". If that happened she would call the crisis team and put B in her cot and punch the pillow. She agreed that she had shouted and sworn in front of B in Elizabeth House but said it did not happen every day. She recognised the need to change. She drew attention to all that she had been through. She became very, very upset at that point and we had a break. After that she said she could not identify any risk of harm to B, her behaviour was not as bad as the Local Authority said and she denied losing her temper at Elizabeth House.
- Since leaving Elizabeth House she denied there were any concerns. She had calmed right down, she had the odd drink but did not drink heavily. She said, "I either do nothing or go to contact". She told the court that she had been in her own flat from 7th October but then moved out because she thought she might have a better chance if she went to Praxis where there was support. She had coped fine in the flat, she did not need the 24 hour care that was suggested by DráTyrie. It was put to her by reference to previous placements that there was a pattern of struggling to cope and she denied that and she said that if she could go to a place like Gloucester Way, a Praxis facility for mothers and babies, she would manage perfectly well.
- The guardian's role was primarily concerned with welfare. Characterising the reported behaviour of the mother as volatile and changeable, she supported the application for the interim care order and expressed concern regarding what she called "the state of flux" in the mother's life since she had left Praxis, her failure to attend a pre-arranged meeting with her at her solicitor's office and, indeed, when she attended at that office learning that the mother had failed to keep other appointments with her solicitor. The guardian had met the mother subsequently when living in her flat which she said was clean, tidy and nicely decorated. Albeit the mother was in a better place in her life, she was not convinced that she was ready for a settled lifestyle.
- On a purely factual level the guardian was not able to confirm the mother's account of the reason why she missed quite so much contact. She had only attended twice for certain, once more possibly since mid December and the mother explained that by reason of what she called B's "attachment issues" that caused B to be upset if the mother was ever out of her sight and, particularly, when she puts her coat on at the end of contact. Whilst the mother said that B is upset and that in turn upsets her, it was primarily to spare B that upset that she absented herself from contact, what was characterised on her behalf as being a child-focused thing to do. I need to consider this but, at this stage, the social worker, having refuted what the mother said both from speaking with the contact supervisor and seeing the records, the guardian said that she was present throughout a contact in October, including at the end, and witnessed no such upset or distress on B's part.
- I need to make some findings now. The law is set out in a series of authorities beginning with Re H and R (Child Sexual Abuse: Standard of Proof), and then latterly with Re B (Care Proceedings: Standard of Proof) in the House of Lords. It is not necessary to set out the law at length. There is no need for me to do so. I need to set out only so much as is necessary to indicate the standards by which I have to assess the evidence and equally importantly as to enable the mother to understand the legal principles by which she is being judged. I am entitled to and must have regard to all the evidence before me when coming to conclusions on matters of fact (that is Re U (Serious Injury: Standard of Proof).). The standard of proof was classically defined by Lord Nicholls in Re H and R as being the balance of probability where a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. That was reviewed by the House of Lords in Re B and the court disapproved what had become the familiar formula of the more serious the allegation, the more cogent the evidence needed to prove it. Lord Hoffmann set out very clearly what he described as a binary system where there are only two values, a fact happened or it did not. That, therefore, is the standard that is applied. The burden, of course, rests on the Local Authority.
- Whilst the mother accepts that she had a difficult and dysfunctional childhood, exhibiting disruptive behaviour from an early age, she denied that she was accommodated due to her behaviour or that she was a risk to her siblings citing her mother's disapproval of her then boyfriend. The Local Authority does not deny that there was disapproval of the boyfriend, the father of C and A, but points to the fact that the mother was, in fact, placed in care at the age of 15 and, thus, there is a well documented history that points to circumstances of considerably greater concern than an unsuitable boyfriend. That is evident from the contemporaneous records, from the assessments carried out regarding A and directly in these proceedings from the Local Authority's dealings with the maternal grandmother as part of the assessment of her at the mother's request. I have already quoted from part of that. Running through the dealings with MGM in her report, it is the mother's problematic behaviour, the consequential arguments and the risk to children in the grandmother's care. Her step-father said that he had greater clout so far as the mother was concerned but even he, on his account, could not always manage her and had had to ask her to leave the house.
- Further evidence for that, it seems to the court, is the self evidently poor relationship that exists. Despite the mother's complaints about her inability to visit her mother when at Elizabeth House, conspicuously absent is any evidence of the grandmother visiting the mother. Indeed, she told the social worker that she only went to the hospital to see B once because she was fearful of forming an attachment with that child. It is not lost on the court that, entirely in keeping with this avoidance of her daughter, MGM has not attended, still less given evidence of the support that she might offer her daughter. It seems to the court that in latching on to the boyfriend, of whom I am sure they did disapprove, the mother fails to face up to the more serious disruption that she caused resulting in her being put into care at what was a comparatively old age.
- The second, third and fourth features of the threshold really can fall to be considered together. The mother accepts the psychological disorders but denies the effect that they have on her ability to care for A, in particular, or children in general. In fact, as I have said, in evidence the mother did accept that after A's removal there was a realisation that she was not able to care for him and so I think that the second ground is proved on her own account quite apart from on the evidence of DráTyrie that her presentation was such that she could not care for A in an appropriate manner with a consistent or safe, physically and emotionally warm environment. DráTyrie confirmed that and pointed to the characteristic classical features of her diagnosis, impulsive, irresponsible, aggressive outbursts and so on.
- More contentious, therefore, is the present situation. There are examples before, during and after the mother's time with B in Elizabeth House. There is, it seems to the court, a crescendo of such matters with the passage of time. Thus, as is clear from the parenting assessment, the mother was much more stable, much more receptive to help and less prone to outbursts but there were warning signs in Praxis from January onwards. There was an incident in early April following the mother projectile vomiting and leaving the mess, becoming argumentative when challenged, the failure to clean up being explained by her waiting until she was better without any insight as to how others living there might have felt about what she had done. There was a challenging outburst at the pre-discharge meeting, denying that she needed the support previously agreed and overreaction to the advice that she felt that she did not need or disagreed with almost as soon as she arrived at Elizabeth House. The support was extensive, of course, but the court finds that it was commensurate with the concerns. Therefore, there was 24 hour staffed accommodation, the community foster carer and so on.
- It is, I accept from DráTyrie, part of the characteristic of the mother's personality that she is likely to behave as she did and it is to her credit that she was able to go on and engage and benefit from that support but she did not do so consistently and whilst I note MissáAdcock's criticism that the chronology and, therefore, DráTyrie's report may appear to focus on the negatives as opposed to the positives, it is the persistence of negatives that undermines the positives because the latter, the positives, are not consistent. Nor is it an answer, as the mother said, to suggest that the bad behaviour in Elizabeth House was attributed to being there. I accept that being in such an environment is intrusive and is restricting, claustrophobic even, as the mother said. I am sure that there are many tensions with other young mothers who themselves have a multitude of problems: that is why they are there but if the greater goal cannot be seen in such a way as to enable the mother to grin and bear it for what is a relatively limited period of time, it is scarcely encouraging but the behaviour, as I say, was evident before she went there.
- A reading of the records show that it persisted to a greater or lesser extent not all the time, of course, whilst she was there and the instability and chaos in her life has been evident since, most recently over her living arrangements. Abandoning her tenancy to return to Praxis for what seems like a potentially good reason but then leaving days later in circumstances that recent information of the Local Authority would suggest are open to dispute, is not encouraging either and of the incidents in Elizabeth House relied on by the Local Authority, the mother simply denied them all. Rocking B violently in her arms when agitated, witnessed, she told me, by the social worker, was denied. Narrowly missing banging B's head when storming out of a room during an argument, picking B up in the baby bouncer and going off to her room, hysterical screaming and crying in the course of an altercation are all examples of extreme reactions to what are, at the end of the day, everyday trials and tribulations culminating in what seems to have been a fairly major episode on 6th June with another resident when the mother, I accept, was responsible for calling the police. She may well have been provoked, as she said she was, but her reaction was disproportionate, it was completely ungoverned and she was very slow indeed to respond to the efforts of both the staff and the police to calm her down.
- That, in turn, feeds into the fifth finding I am asked to make because, on her own account, the mother's outbursts have, on a handful of occasions, occurred in B's presence and she has been exposed to them. There is quite a lot of evidence of that: shouting and screaming on it being pointed out that she was rocking the pram with B in it too intensely and then in temper threatening to kill herself, refusing to hand B over to staff when reacting badly to a formal warning, swearing at the foster carer when asked to get out of bed and questioned as to why she had left soiled clothing lying on the landing. It is also clear that the mother was evicted from Elizabeth House, and she accepted that description of it, was due to her behaviour, although she argued that it was due to an allegation of drink and drugs which she denied.
- The records show the progression of problems, the warnings, the request by the Local Authority to accommodate B after the incident on 6th June and it is clear from the Elizabeth House documentation and the evidence of the social worker that it was the increasing concern for the safety of others due to her behaviour that caused the eviction, even if the last incident was, in fact, triggered by the allegation of drink or drugs. Likewise her evidence as to the circumstances in which she came to leave St Helena's hostel in 2011 and Praxis in 2013, (ignoring what I was told but which was not proved in 2014), has to be contrasted with the records that show a recurring pattern, all of which is entirely in keeping with the behaviour to be expected given the diagnosis.
- It was striking that the mother in many, if not most, of the incidents in dispute either disputed their occurrence or claimed not to remember. The distinction she drew between becoming annoyed and losing her temper is another one that I struggled to recognise. It seemed to the court that it was all consistent with DráTyrie's evidence that the mother's perception of events is wholly different to those around her. I do not think for a moment that she was seeking to mislead the court deliberately. She simply cannot identify herself with behaviour that most people would regard as unacceptable. Even she can see that it is not, when it is explained in the cold light of day, because her perception unfortunately at the time is quite different. Despite what she says, I do not think that she remembers, or certainly not realises, just how unacceptable her behaviour is at times.
- It is, I repeat, very sad but I remind myself that Elizabeth House is run by a charity, not the Local Authority, a charity that features in cases from time to time, run by people who are dedicated to the rehabilitation of young mothers with problems not of their own making and who have no other agenda. Their approach is, in my experience, very even-handed. The reports which I have read in full contain the good, the bad and the ugly and there is a lot I accept that is good and that is greatly to the mother's credit and encouraging but, as DráTyrie has identified, improvement does come with maturation and the mother demonstrates some signs of this but the concerning behaviour is still at a level that does, indeed, point to a difficulty in there being any confidence in her ability to provide consistent, secure and safe parenting.
- Finally, the mother's ability to meet B's and her own basic needs is apparent throughout the history. It was apparent with A but, more importantly, it has persisted in less acute form with B throughout the Elizabeth House stay. I accept this is not wilful or malicious behaviour on her part, I accept it is not as bad as it had been, I accept that she has tried her hardest and to an extent achieved but it was not enough and I am satisfied that B's needs were not met, she was not kept in a clean and hygienic environment. There is no medical evidence to link it with B's persistent medical problems but it is a worrying fact that these occurred. B was on several occasions, in what was a controlled and safe environment, exposed to shocking outbursts of real anger that were really harmful to her. She was unable sufficiently to regulate her behaviour through no fault of her own, even to get successfully through a highly supported, tailor-made programme designed to ensure the best chance of keeping B with her.
- Where her evidence conflicts with that of the social worker, with the guardian, with DráTyrie, I prefer theirs rather than hers. That is not, I stress, because of her seeking to mislead me. I think she genuinely believes that her perception is the correct one. It is from her point of view, as DráTyrie explained, but objectively it is not and, accordingly, I am satisfied that the threshold has been made out. I therefore have to accept that it is necessary for the court to make an order to safeguard B's welfare, so the next issue is what the correct order should be.
- The Court of Appeal, following the Supreme Court in Re B earlier last year, has had a great deal to say about this in a series of important cases. The evidence in this case was finalised at or about the time these decisions were being made and it is, therefore, understandable that the evidence is not in a format that does not take these cases into account. Furthermore, despite the case being listed in December before MráJustice Cobb, the opportunity to fill the gap thereby created was lost. I raised this with counsel at the outset but no one, and certainly not MissáAdcock, invited me to adjourn for more evidence, nor did she complain at the social worker and guardian expanding their evidence. In another case that might have prejudiced a parent. MissáAdcock conceded that it did not in this case because the options, all agree, are stark ones arising from these undisputed facts. The only family carer available for B is her mother. Her father may not have been identified but if he has, he does not want, I am satisfied, a role of any sort. Having identified M's mother and step-father, they were assessed negatively and neither the mother nor they have sought to challenge that, the grandparents not seeking to play any part in this case beyond that assessment.
- B is now a month short of her first birthday. She has spent a little over half of her life in foster care. Her primary attachment is to her foster carer. For reasons good or bad, the mother has not committed to contact, having seen her just twice in the last six weeks at which, it has to be said, very good and appropriate contact has been observed. If the mother cannot care for B now, or in a time scale that meets B's needs, the professional advice is that adoption is the only realistic option notwithstanding the extreme nature of such an order and, therefore, I need to consider the evidence as to the realistic prospects that the mother has of caring for B. She does not say that it should be today or next week, recognising that a programme would have in stages to be implemented which is an appropriately insightful view.
- The Local Authority says, however, that there is no resource it can offer that would safeguard B in the mother's care. As the social worker put it to me, if the placement with the mother could not be maintained in Elizabeth House, it could not be maintained anywhere else. Apart from the 24 hour staffing, I have listed previously the additional support. The community foster carer, in particular, was a very considerable facility, quite apart from the other help I have mentioned. In support of that position was DráTyrie describing the need for 24 hour care seven days a week. The very experienced guardian said that Elizabeth House and the community foster carer were quite the best support that could be offered or provided. From experience, and acutely conscious of the need for the court to scrutinise and probe the Local Authority, I cannot recall a more intensive level of support than was here offered.
- In pointing to her isolation in Elizabeth House, separation from her friends and family, geographical separation from Newcastle and her family, the mother invites me to consider other alternatives. In July she favoured the Praxis mother and baby facility at Gloucester Way. Part of the attraction was her knowledge of the staff there who are Praxis staff and other mothers who had spent their pregnancies in Praxis with her. She also offered to go into a local authority mother and baby foster placement which she thought would be better for her than Elizabeth House. The social worker told me that Gloucester Way would not be suitable. There are no support staff on site after five or at weekends. Help is at the end of a telephone only. Given the concerns that the staff at Elizabeth House had, that would be insufficient to safeguard or protect B. Much of what comes from Praxis to professionals is through self report. The reports of the staff at Elizabeth House show just how unreliable mother's own self reporting is.
- It had been hoped, the social worker told me, that the mother would have been able to move on from Elizabeth House to Ridley Villas which is effectively into a supported flat. That is not staffed overnight either but that plan could not progress, quite apart from the breakdown that occurred at Elizabeth House, because the staff at Ridley Villas recognised that it could not provide the mother with the level of care that was needed. The social worker said if the mother could not look after her single room properly in Elizabeth House, she could not possibly look after a flat with a baby. Given the failure at Elizabeth House as well as B's age and the mother's nomadic existence and lack of commitment to contact, she said it was not possible to justify a further trial of placement without far better odds on it succeeding. A return to Elizabeth House would not have any increased prospect of success and the effect on B of breaking the attachment with her foster carer would be devastating if such a further assessment failed, hence her inability to recommend it. Her evidence was supported by DráTyrie and by the guardian who felt that there was no or insufficient evidence that lasting improvements were being made. She said that all manner of residential settings were discussed and considered at the outset of the proceedings, by which time Elizabeth House had, of course, broken down and none could be found that provided sufficient supervision or monitoring as well as meeting B's best interests.
- MissáAdcock reminded me of the process that I have to consider in determining which order best meets B's needs and I do, of course, have regard to the considerable jurisprudence on this subject beginning with the judgment of the Supreme Court in Re B and the more recent decision of the Court of Appeal in B-S and in Re W (A Child), the President saying that the principles from those latter two cases must now inform practice in all care cases, B-S directing the court's approach to the question of making care and placement orders and to the issue of proportionality, Re W elucidating what is required from the Local Authority when the care plan is as here for adoption.
- The judgment of the President of the Supreme Court in Re B, Lord Neuberger, is particularly relevant. The context there was a child that the local authority sought to place for adoption. The statutory threshold was said to be satisfied on a relatively modest factual basis but the final orders sought were at the highest level of interference with Article 8 rights to family life, the extreme end of state intervention, namely the permanent removal of a child and placement for adoption against the will of the parent. Lord Neuberger said that the welfare of the child had to be the paramount consideration throughout and that involved taking into account the factors set out in what is known as the welfare checklist as well as the range of powers available to the court had to be construed along with the range of powers to be considered under the Adoption and Children Act 2002. Bearing in mind the provisions of the United Nations Convention on the Rights of the Child he said this:
"A care order in a case such as this is a very extreme thing, a last resort as it would be very likely to result in a child being adopted against the wishes of both her parents.
As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of Article 8.
It appears to me that, given that the judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By 'necessary', I mean, to use Lady Hale's phrase, 'where nothing else will do.'"
He went on to state that the conclusion was clear not only under the Act but put beyond doubt by Article 8 of the Convention which raises a presumption that a child's best interests are served by being with their parents wherever possible and that adoption can only occur if a child separated from his or her parents against their will when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation is necessary for the best interests of the child.
- There is no doubt that the Supreme Court and the Court of Appeal have been at pains to stress how high the bar is before such far reaching orders are made. In B-S the President reminded courts faced with making such decisions that: first, it is not enough to show that a child could be placed in a more beneficial environment for his upbringing, an endorsement of the observations of the European Court in YC v United Kingdom that harked back to what Lord Templeman and MráJustice Hedley had said in cases long ago and what MissáAdcock described to me as a gold standard of parenting. That is not what is required.
- Second, that Re B used striking language as to the degree of necessity before making such orders was endorsed.
- Third, the need to explore and attempt alternative solutions was emphasised.
- Fourth, Lord Neuberger's reminder that the court's assessment of the parent's ability to discharge responsibilities towards the child must take into account the assistance and support which authorities offer.
- Fifth, the need for proper evidence both from the Local Authority and the guardian addressing all the options which are realistically possible, containing an analysis of the arguments for and against each.
- Sixth, the global holistic evaluation endorsed by Lord Justice McFarlane in Re G and absent such evidence, setting a timetable that did not run the risk of justice being denied.
- So if the threshold is established, the court is involved in evaluating the arrangements that best meet the child's needs by reference to the paramount consideration of the child's welfare, the welfare evaluation discussed by Lord Justice McFarlane in Re G. Where the court has before it the option of adoption it has to take place, that evaluation, in the context of the welfare provisions in the 2002 Act identifying the paramount consideration as the child's welfare throughout the lifetime and he went on to describe and I do not think it is necessary for me to repeat here the balancing exercise, weighing up each option with its own internal positives and negatives, compare them side by side in a holistic way.
- In Re W the court said that the approach to exercising its jurisdiction involved making the following judgments:
first, what is the timetable within which the child's welfare is to be determined?
second, what are the key issues that need to be determined for the ultimate decision to be made?
third, whether there are jurisdictional facts which, if found, are sufficient to satisfy the threshold?
fourth, what are the key findings of fact in respect of the key issues identified?
The response to those questions must then inform the answers to three questions identified by Lady Hale in the matter of In the matter of J (Children) namely:
first, what is the harm and/or likelihood of harm?
second, to what is the harm or likelihood attributable? and
third, what would be best for the child?
The court is then to conduct an evaluation of the placement options considering what services are available identifying: first, the welfare analysis of the available placement options; second, the best option among those available on a welfare evaluation and what orders are proportionate and necessary.
MissáAdcock reminded me of much of this, of the stringent standard to be met, of the need to take the least interventionist course and to consider the issue of assistance central to this case with a mother who acknowledges the need for it.
- Addressing the questions identified, this is a child who is almost a year old and in terms of a timetable there is now a pressing need to have her future determined. If it can be determined by a return to her mother within a reasonably measurable time, delay would not be fatal but an open-ended wait is, however, inimical to her emotional well-being. The key issue is whether there is a prospect, by which I mean a realistic one, of B being cared for by her mother within a commensurate timetable. The jurisdictional facts found do satisfy the threshold under section 31. The mother relies heavily on the fact that she has matured, is in a far better place than she was when A was born, has undertaken bereavement counselling, has sought anger management and, indeed, sought and had an initial assessment for some form of therapy, promising signs that she says can be built upon.
- However, against that, DráTyrie advises that the therapy, if it was of the right sort, would be very long and would have no guarantee of success. It would be generally offered under the National Health Service for two years but she questioned if that would be enough given the depth of the problems. The problem facing this court is that the mother has had an initial assessment but has not yet been accepted, still less has she started work, still less is her commitment to it or completing known. She had, of course, demonstrated a commendable commitment by seeking it in the first place and undertaking the bereavement counselling which was, however, a relatively short course but this therapy would be challenging and we have good examples of how she reacts to challenging help from what happened in Elizabeth House. DráTyrie also makes the point that many who embark upon this course do not complete it.
- Notwithstanding the mother's good intentions, it seems to the court that the prospect is a completely open-ended one. If she had been accepted and had started and there was some understanding of time scales and progress being made, that could all be weighed up against B's time scales and the advantage of being brought up by her mother against the delay in being finally settled with her. There is before the court no such evidence. Sadly, the evidence points to no more than a preliminary step taken with no time scales, no forecast of success. Really the court is left with DráTyrie's rather pessimistic view and, in my judgment, whilst the progress the mother has made is real and not illusory, it is still far from what would be required for the court to have sufficient confidence that it was likely to succeed.
- Accordingly, addressing the likelihood of harm, it is plainly emotionally harmful for B to be exposed to the mother's erratic, inconsistent and unreliable behaviour as well as her inconsistent availability for B, as DráTyrie stressed, together with the inadvertent exposure that would arise thereby to physical harm through neglect through a lack of awareness of her more extreme behaviour. I do stress that it would be inadvertent because I accept her evidence, and that of DráTyrie, that she would never intentionally harm B: nothing could be further from the truth. All of that is attributable, I am satisfied, to the mother's mental health, itself a dreadful consequence of her own parenting and her upbringing, a tragic misfortune which is not of her making and for which she bears no responsibility.
- So what will be best for B? Even taking a holistic view, as urged by Lord Justice McFarlane, there are only two realistic alternatives as the guardian and the social worker state. It either has to be rehabilitation or permanence outside her family. One simply cannot commit a child not yet 1 to a lifetime of statutory care for all the reasons articulated by Lady Justice Black in Re V quite apart from the lack of stability which is inherent in long term fostering: the risk of disruption through changes in circumstances of the foster carer, the risk of applications, the child's resistance to foster care as she grows older and becomes more aware of her circumstances and the intrusive nature of having a statutory parent are all reasons why it could not be justified for a child of B's age. Foster care could only be justified as a short term measure if the prospect of rehabilitation were good enough to justify it. For all the reasons that I have advanced or discussed, they are not and nor is there a level of practical assistance and support that would ensure B's safety. Indeed, the level of support required would run the risk of those providing support being at times the primary carers.
- B needs and deserves now a forever family who can claim her and give her the stability she needs throughout her minority. That can, I am satisfied, only be achieved by adoption, notwithstanding the very high price a permanent separation from her mother and half brother. Considering the position of B life long it is the best option, it is the only option because, sadly, nothing else will do. My paramount consideration has to be her welfare life long. She is too young to have wishes and feelings. She is a young, vulnerable child totally dependant upon her primary carer and that is now her foster carer. Whether the mother's reasons are good or bad, it is the fact that she has struggled to maintain that attachment through contact.
- In due course B will learn that she will have ceased to be a member of her birth family. That will, no doubt, have a profound effect upon her but with sensitive life story work and adequate preparation I am satisfied that that very significant loss is one that is not just manageable but is justified to ensure that all her other needs are met given the alternative which, as I have found, has exposed her to some harm already and would undoubtedly expose her to the risk of suffering more harm.
- Accordingly, the proportionate and necessary orders are both a care order and a placement order. I am not able to make the latter without the mother's consent but for the reasons I have given I am satisfied I should dispense with that consent using the power in section 52 of the 2002 Act because B's welfare demands that I do so. In reaching this conclusion I have paid full regard to the Article 8 rights of both B and her mother as well as the welfare checklist. It is, of course, I repeat, very sad and there is little consolation that one can offer a mother in such circumstances. All that can be offered is this: that by giving B this chance to be brought up in an emotionally stable and secure environment she will have the best prospect, the best chance available to her, of achieving her potential, whatever that may be and if she is able to do so in that emotionally secure way that I have described and avoid the serious difficulties that her mother has had inflicted upon her by reason of her own upbringing, I hope that that will be some consolation for her, albeit I accept not for a long time to come.
- Finally, I am satisfied on the evidence that F1 is not B's father. The birth certificate is wrong and I make a declaration to that effect. I grant the Local Authority permission to change B's surname to X, that is to say the name of her mother. That is also a decision affecting B's welfare so the welfare checklist in the 1989 Act applies but it seems unarguable that it is in B's interests to be known by the name of a man who not only has no biological link but has no emotional link with her either.
- I will direct that a transcript of this judgment be prepared, the cost to be borne equally by all three parties to the case. There will be the usual order for the public funding assessment of the respondent's costs and I will invite Miss Sehat to draw an order and submit it to me in the usual way.
[Discussions re order follow]