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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> G & C (Re a child) [2014] EWFC B206 (18 December 2014 ) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2014/B206.html Cite as: [2014] EWFC B206 |
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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 children and members of their 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.
THE FAMILY COURT AT BRISTOL
Claim
No: BS14C00670
2 Redcliff Street
BS1 6GR
Thursday, 18th December 2014
BEFORE:
HIS HONOUR JUDGE WILDBLOOD
BRISTOL
CITY
COUNCIL
APPLICANT
-v-
RESPONDENTS
MR BAGGLEY appeared on behalf of the Applicant
MISS FARQUHAR and MISS BORKOWSKI appeared on behalf of the Respondents
MISS JOSEPH appeared on behalf of the Guardian
Transcribed by Cater Walsh Reporting Limited
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1st Floor, Paddington House, New Road, Kidderminster DY10 1AL
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JUDGMENT
Thursday, 18th December 2014
JUDGE WILDBOOD QC:
"The language used in Re B is striking, different words and phrases are used, but the message is clear. Orders contemplating non consensual adoption, that is care orders with a plan for adoption and placement orders and adoption orders, are a very extreme thing, a last resort, only to be made where nothing else will do, where no other course is possible in the child's interests. They are the most extreme option, a last resort when all else fails, to be made only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare; in short, where nothing else will do."
"Nothing that was said in Re BS was intended to erode or otherwise place a gloss upon the statutory requirements of sub-section 1 of the 1989 Act and section 1 of the 2002 Act; on the contrary, the exaltation for courts to undertake a balancing exercise, which pits the pros and cons of each realistic option against the others was aimed precisely at discharging the court's statutory duty under section 1. In particular, before making a decision relating to a child's welfare a court is required to have regard to, amongst other matters, the factors set out in the relevant welfare checklist. The evaluation of options described in Re BS must be undertaken with those factors in full focus."
"The grandmother has been referred to a cardiologist due to some new findings on her echo cardiogram. She was found to have a dilated left atrium, and it is important to seek clarification from her cardiologist whether this requires any additional medication and regular monitoring. I also wanted to emphasise that mother is not on any regular medication for her heart condition at present, and her recent blood pressure reading was normal."
At C120 the doctor refers to her having problems with her heart and occasional chest pains.
"It is comfortable, clean and tidy. Her living room is a warm space with carpeted floor. There are lots of family photographs. Other rooms are partially carpeted with off-cuts. I'm aware that she has only fairly recently moved into this flat. There are two bedrooms, and she would have space for her daughter to live with them, in addition to a baby. There is a secure entry system."
I agree that it is very unfortunate, and I am sure, a huge burden that the grandmother has this degree of indebtedness, which I am told was about £8,500 in total. However, I do not accept that that is of such significance that it affects whether she could care for her granddaughter. There must be many people with that level of indebtedness, or more, who care for children perfectly well; for instance, bankruptcy does not mean that children are removed from the bankrupt. I am simply not prepared even to say that this issue of indebtedness is in some way a 'factor', since that is meaningless and leads to the false mathematics of 0 + 0 = 1, or, as Lord Hailsham put it in an adoption case: "The ancient fallacy of the Sorites."
"I do believe that the father is a different person when he is not drinking. I believe the father should be abstinent from alcohol. I will absolutely accept and follow the view of the professionals as to any contact between the father and the child. I understand that he currently has only supervised contact with the child, and I will understand if this remains the view of the professionals and the court. I will prioritise the child's care and welfare, and believe that the father would respect this and would not seek to have any contact with the child that was not agreed. If the father did attend at my home, outside of the agreed times or arrangements, I would simply ask him to leave, and, if necessary, call the police to remove him. However, the father rarely attends at my property and has only visited twice since I moved to my new property."
"My middle child has a number of difficulties. He started to associate with a bad group of people, and his behaviour deteriorated. I know and fully understand that he suffers from a mental disorder, and that as a result of this and his behaviours it would not be safe for him to be around the child unsupervised. He is, of course, my son, and I will wish to continue supporting him, but I believe that I can do this without placing the child at risk. I did not suggest that my middle child's behaviours are culturally acceptable as an African man, but I did say that in Africa interactions between men and women are viewed differently. That is not to say that I condone this. When I stated that the middle child would not harm anybody, I simply meant that he would not have harmed anybody before his mental illness. I would not allow my middle child to have unsupervised access to the child."
"When I asked the grandmother about her financial position she accepted that she has significant debts, but visited the Citizens Advice Bureau on 12th November and has been given information on how to apply for a debt relief order. If this is granted, I understand it is akin to bankruptcy and would discharge her obligation to creditors. I did not challenge how far she had knowingly allowed benefits to be paid to her, to which she is not entitled, and how far these issues had arisen when she was unwell. In some ways, I felt any dispute over her intentions in relation to benefits and debts was not as crucial, in the context of her capacity to look after a child throughout her childhood and into adulthood, as the reality that she has quite onerous financial liabilities on a low income. At this time the debts remain significant, and we cannot presume that a debt relief order will be granted."
"The court has evidence that there were seven domestic incident reports relating to the grandmother and her sons between January 2008 and March 2011. These involved arguments or fights between the father and the father's brother, pushing and shoving involving the grandmother and her daughter in January 2008. The grandmother acknowledges these events occurred as she was trying to set boundaries and manage her sons' behaviour. In relation to the father's brother the court will be aware that he is detained under section 37 of the Mental Health Act, a hospital order, and that he was transferred from a medium secure unit to a low level of security at a health unit on 8th October 2014. The grandmother says that he has a diagnosis of schizophrenia and that she normally visits him once a week or once a fortnight. She hopes that he may be discharged to community accommodation in the next year if progress continues. She would expect him to live independently. She described a period: 'When I was totally incapable. Most of the time I was sleeping, passing out at home and at work, attributing this to the effect of antidepressants.' She said that the father's brother became involved with a group of young people, who were giving him drugs, which altered his behaviour. She described him being very unwell at home, behaving oddly, urinating into bottles, cooking all the food in the house. She said that the drugs confused him, and that it was said he was abusing girls in July 2010. He was in prison. She said the court found no case to answer."
This is contradicted by his mental health social worker at page 13 of the assessment by Sarah Penny.
"He was convicted, but she was worried about his mental health. She refused to take him home. She felt the boys who gave him drugs would abuse him and make more allegations. She felt that they had lied about his behaviour. She claimed a crisis loan, and they took the money. I asked the grandmother what she thought about the reported offences. She said: 'I was not there. I don't know whether he had assaulted or sexually touched girls.' She confirmed that she expects him to live independently when he leaves hospital, and that although she will see him regularly she will not allow him to have unsupervised contact with the child."
"The grandmother she said that he has changed from the time when she had to call the police often because of his behaviour. She said that he rarely comes to her flat. She said that her daughter has little time for the father and will not visit him at his accommodation. I asked her what she could tell me about the relationship between the father and the mother. She told me that the relationship had always been on and off. She said that the mother said she loved the father and wanted to marry him. She showed me a couple of text messages between herself and the mother on 23rd September. The one from the mother said that she loved the father, and if the grandmother didn't like it, she couldn't stop her. The grandmother replied: 'Oh, my God, if you love my son why do you have to call the police, denting his name? You're a she devil. You need a mental health assessment.' This was two days after the mother had alleged that the father had attempted to rape her. I had assumed that the grandmother would have been aware the mother had been in prison for several months following an incident involving a knife with her son earlier this year. She was aware that the mother had threatened to kill her son, but seemed unaware that the mother had been in prison. I was concerned that she may have a limited understanding of the volatility of the relationship between her son and the mother and the implications for any family member caring for their child. When I asked her more directly about managing the parents in terms of visiting the child, if she were with her, she then said that she would stop the mother visiting her if the child was with her, and compared it to adoption, saying that the mother would not see the child then so why would she, if she was with me? She said that she would treat the father the same way. If she had any problem she would call the police. The grandmother seemed to have a very concrete idea of how she would manage the situation. The parents would be able to see the child, with their support workers, but would not be able to come to the flat. If they came to the flat she would call the police. When I questioned how easy it would be for her to manage the parents she said: 'If they kill each other, it's not my problem. I wouldn't get involved.' I felt there was no real sense of how ongoing difficulties in the parents' relationship might impact on the child throughout her childhood, and of how she would manage that so that the child could feel emotionally secure in her care. The grandmother is very motivated to care for her granddaughter. The grandmother has significant financial problems, which may or may not be resolved through her application for a debt relief order. The grandmother has an abnormal echo cardiogram. She is due to have further assessment of her heart health, and is currently receiving no treatment for this issue. Given she is age 58, but feels very well, she may or may not be physically fit to care for the child throughout her childhood, and she will be aged 74 when the child reaches 16 years."
"The grandmother appears to minimise or deny her son's abusive behaviour towards women. In my view there is a risk that she will not be able to protect the child satisfactorily from behaviours associated with her son's mental health difficulties. In the past she was aware that the father was looking after his eldest child whilst under the influence of alcohol, when he dropped that child several times and was convicted of being drunk in charge of a child aged under 7 years. The text message exchanged with the mother on 23rd September suggests that the grandmother saw herself as her son's advocate, vis-à-vis the mother. I have grave concerns about how she would be able to promote positive contact with the mother if she blames her for the problems in the relationship between her and the father. I am concerned about the grandmother's ability to give the child a positive sense of her mixed identity and a fair balanced view of the mother. I am concerned that although the grandmother would say that she has support from her church and close friend, and that she expects her daughter to move to live with her in the near future, she would in reality be a very isolated single parent if she were to care for the child. There is no evidence that she has close friends who have young children, and she would have to begin to establish a new support network which has a shared interest in caring for young children. That is by no means impossible, but would, I expect, be difficult."
"I have considered whether any other local authority services or support would reassure me and the court about the grandmother's capacity to give the child a physically or emotionally secure childhood. The child is now aged 5 months, and I do not think it is realistic to delay matters while the grandmother's health and financial issues are clarified further. The local authority would be able to provide a special Guardianship allowance. The grandmother would have to give up work. This would certainly not allow her to repay debts if she does not secure a debt relief order, and the local authority could not be expected to pay off those debts. The local authority could certainly signpost and support the grandmother with appropriate 'early years services', but could not insist that the child is involved in pre-school groups if the grandmother chose not to engage. The local authority could supervise some contact between the child and her parents initially, but that would not be sustainable on all but the most occasional basis throughout her childhood. Arrangements would have to revert to being supervised by the grandmother herself, another family member or trusted friend, or using a child contact centre. Some of the key concerns about the grandmother's position relate to her personality and how she would manage relationships with family and professionals. Sadly, I cannot see a way to provide support services which would assist in that respect without practically subverting her parental responsibility."
(1) I must apply the relevant statutory and Convention provisions, and must do so in accordance with the guidance given by the higher courts. (See EH v Greenwich Borough Council [2010] EWCA Civ 344);
(2) Where the threshold criteria are fulfilled, as they are here, it is necessary to consider the provisions of Article 8 of the European Convention on Human Rights and section 1 of the Children Act 1989 when deciding whether to make a care order;
(3) In relation to the placement application I must consider the terms of section 52.1(b) and section 1 of the Adoption and Children Act 2002. The welfare checklists in the two Acts are not the same. Article 8, of course, is also further and significantly engaged in relation to the placement application;
(4) The court must conduct a global, holistic approach to welfare issues, weighing up the various available options before it. The court must avoid a linear analysis of those options because that can lead to the piecemeal elimination of the least interventionist solutions, leaving the most interventionist solution of a placement order as the only remaining solution. (See ReG
(a child) [2013] EWCA Civ 965);
(5) Further, where care and placement applications are made it is better for the court to conduct a combined welfare analysis of the applications rather than considering the care application first and separately from the placement application; otherwise, if the less interventionist care order is made on a care plan for adoption, it may lead to a placement order being made without sufficient consideration being given for the welfare checklist under the 2002 Act, and also without there being the necessary holistic analysis of the real options before the court; here those options are adoption or supported placement with the grandmother;
(6) Article 8 of the European Convention on Human Rights states as follows: (1) Everyone has the right to respect for his private and family life, his home and his correspondents; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society for the protection of health or morals or for the protection of the rights and freedoms of others;
(7) Care orders amount to very significant invasions of the Rights encapsulated in that Article. Placement orders amount to an even more significant invasion of that right than care orders. For such orders to be justified they must be satisfy the provisions of Article 8.2, and therefore must be (a) in accordance with the law; (b) necessary for the protection of the rights and freedoms (that is the welfare) of others, (here, the child); (c
) proportionate;
(8) Welfare issues must be based on the totality of information available to the court and in relation to them, unlike threshold issues, it is necessary to conduct a contemporary evaluation of what is best for the child concerned;
(9) By section 1.1 of the 1989 Act the welfare of the child is the paramount consideration when considering the making of orders under that Act following the satisfaction of the threshold criteria. Section 1.3 of the Act contains the welfare checklist. I will not set out that checklist because much of it is duplicated in the 2002 Act, and I intend to conduct my welfare analysis by applying the checklist in the 2002 Act.
(10) As to the 2002 Act, children may not be placed for adoption under placement orders without the consent of the parents unless the welfare of the child requires the consent to be dispensed with. The core statutory provisions in relation to placement orders are therefore section 52.1 for the purposes of this judgment, although there are, of course, many other provisions in the Act relating to such orders;
(11) The case of Re P (children – adoption and parental consent) [2008] EWCA Civ 535 provides useful guidance in relation to application orders. The main and relevant principles for these purposes are set out in paragraphs 119 to 154 of the judgment of Wall LJ. Those principles are summarised in the case of EH v Greenwich. I mention two: "(1) That in considering the provisions of section 52 I must consider section 1.4 of the 2002 Act; (2) The word 'requires' in section 52 is plainly chosen as best conveying the essence of the Strasbourg jurisprudence; that is, it implies an imperative rather than something that merely optional or desirable. Ryder LJ summarised the position in the case of Re R [2013] EWCA Civ 101;
(12) The relevant parts of section 1 of the 2002 Act provides as follows: (1) This section applies where a court of adoption agency is coming to a decision relating to the adoption of a child; (2) The paramount consideration of the court or adoption agency must be the child's welfare throughout his life; (3) The court or adoption agency must at all times bear in mind that in general any delay in coming to the decision is likely to prejudice the child's welfare; (4) The court or adoption agency must have regard to the following matters amongst others: (a) the child's ascertainable wishes and feelings regarding the decision considered in the light of the child's age and understanding; (b) the child's particular needs; (c
) the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person; (d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant; (e) any harm within the meaning of the Children Act 1989 which the child has suffered or is at risk of suffering; (f) the relationship which the child has with relatives and with any person in relation to him the court or agency considers the relationship to be relevant, including: (1) the likelihood of any such relationship continuing and the value to the child of its doing so; (2) the ability and willingness of any of the child's relatives or of any such person to provide the child with a secure environment in which the child can develop and otherwise to meet the child's needs; (3) the wishes and feelings of any of the child's relatives or of any such person regarding the child; (6) the court or adoption agency must always consider the whole range of powers available to it in the child's case whether under this Act or the Children Act 1989, and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so. I will not refer to sub-section (7).
"This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. M & H (a child), LJ Macur, at paragraph 8 said: 'I note that the terminology frequently deployed in arguments to this court, and no doubt to those at first instance, omit a significant element of the test (one or two inaudible words) by both the Supreme Court and this court which qualifies the literal interpretation of nothing else will do; that is, the orders are to be made in only in exceptional circumstances and when motivated by the overriding requirements pertaining to the child's best interests.' In Re M (a child – long term foster care) [2014] EWCA Civ 406 Black LJ said: 'What is necessary is a complex question requiring an evaluation of all the circumstances.' As Lord Neuberger said at paragraph 77 of Re B, speaking of a care order, which in that case will be very likely to result in the child being adopted, it seems to me inherent in section 1.1 of the Children Act 1989 that a care order should be the last resort because the interests of the child self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interest.'"
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