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England and Wales County Court (Family)

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Cite as: [2014] EWCC B3 (Fam)

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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 incapacitated person 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.

Case No. VA13C00053


The Courthouse
1 Oxford Row
4 February 2014

B e f o r e :


In the matter of:
Re: B (A Child)


Counsel for the Local Authority: MISS MASON
Solicitor for the Mother: MS SHERGILL
Solicitor for the Father: MISS HECKINBOTTOM
Solicitor for the Guardian: MR GEORGE



Crown Copyright ©

  1. I continue to be concerned with proceedings in respect of a child, B, who was born on 13th November 2012, so he is 14 months old. By an application dated 10th April 2013, Wakefield Council applied for a care order in respect of B. They have also applied for a placement order by application dated 13 December 2013.
  2. Representation

  3. Wakefield City Council was represented by Counsel, Miss Mason. B's mother, Miss C was represented by Ms Shergill. M did not attend the hearing. Miss Heckinbottom represented R's father. F did not attend the hearing. B was represented by Mr George, taking his instructions from the children's guardian, Mrs Curtis.
  4. Forensic Background

  5. The case was listed for final hearing commencing 23rd September with a time estimate of five days. It was clearly not possible for the matter to be concluded at that time because the care plan was one of adoption and the maternal grandfather, who cares for another of the mother's children and had done so without question or concern for over a year, put himself forward as a potential permanent carer for B. I expressed surprise that the Local Authority did not approach him earlier, and indeed I have been told today that in fact he had been approached and had declined to be assessed.
  6. As can be seen from my earlier judgment in this case, the medical evidence in relation to B's alleged injuries was scheduled to be heard on 24th September 2013, with two consultants due to give evidence. I had previously indicated that I did not view this case as necessitating a split hearing, especially since it is not a single-issue case but I took the pragmatic approach to treat the hearing as a fact finding into the injuries alone and to use the court time and the medical experts as productively as possible. That hearing was not a threshold hearing. It was held only to determine the causation of haematomas which developed on B's head and were observed by professionals at A and E in the early hours of 13th March 2013, which by paragraph 1 of their threshold document the Local Authority sought a finding had occurred non accidentally. I gave judgment in that part of the hearing on 13 September 2013.
  7. This judgment deals with the threshold criteria in respect of B and my decision on the application for a care order with a care plan of adoption, and the application for a placement order.
  8. When I adjourned this case for final hearing the plan was that Mr J, maternal grandfather, would be assessed as a carer for B. He cares for M's older daughter and hoped that he could care for B with M's support. In mid October M reconciled with S, father of her younger daughter. As a result Mr J withdrew from the assessment as he acknowledged that he could not care for both children on his own.
  9. On 3 December M made an application for an ISW assessment of herself and S as joint carers of B because it was clear that her father was no longer putting himself forward as a potential carer for B. This application was listed before me at the Issues Resolution hearing which took place on 17 December 2013. At that hearing the application was not pursued by Mr Maxwell-Stewart because M did not attend the hearing, she was not attending contact and she was not cooperating with social services. Indeed, M last attended contact on 16 December 2013. Her own mother died in December 2013 and it is believed that M is now living at her deceased mother's address.
  10. Factual background

  11. M and F are still teenagers. They have had an on/off sexual relationship of limited duration. B was conceived during a 3 month period when they were together following which they have not continued the relationship. DNA tests showed that F is B's father on 17 April last year. F does not hold parental responsibility for B.
  12. M has two older children. One lives with M's father. The other lives with her natural father, S. They were both the subject of Child Protection plans from July 2011 to January 2012 under the category of neglect. In March 2012 they were taken into police protection and removed from their M's care. When B was born he was made the subject of a child protection plan. He lived with his mother with his step father in the home of the maternal grandmother. A serious incident of domestic violence occurred between the couple on New Years Eve but the couple remained in a relationship. B moved to live with M alone from 30 January 2013 at a teenage pregnancy project. There were several breaches of the TPP rules, with M staying away from the project. A legal planning meeting on 28 February decided that whilst threshold for care proceedings was met, M was giving B a "good enough" standard of care, and proceedings would not be pursued. There was a plan to support M with nursery provision and safe relationship/ self esteem courses.
  13. On 13th March, shortly after midnight, B was taken to A and E with bilateral haematomas or swellings over his temples. He had a CT scan and X-rays and blood tests. He had no bleeding to the brain and no fractures. In fact there were no external manifestations of injury to his head at all, no bruising, no lesions, no other marks. B's platelet count was very, very low and he was transferred to Leeds General Infirmary with a view to further assessment. The medical evidence about the platelet count was that B had developed immune thrombocytopenia, ITP. On 19th March, B was voluntarily accommodated at the time when he would be due for discharge from hospital. The Local Authority applied for a care order on 10th April on the basis that B had been non accidentally injured whilst in the care of M. M was offered a high level of contact, over half of which she did not attend.
  14. In a statement dated the 30th April, M said that she had been dishonest about the circumstances of presentation on 10th March. She said that actually she had been carrying B in a bouncer and that she had lied because she was very concerned that he would be removed from her care.
  15. Parenting assessments of M in August and December 2013 were negative because although M clearly loves B she cannot identify his needs and keep focussed upon them. M has experienced neglectful parenting herself and she has had several relationships and moves which have meant she has lacked emotional and physical stability. M has shown some recent insight into her position and does not put herself forward as a carer for B.
  16. F and his mother were assessed as potential carers for B. The viability assessment of them was negative because the family has had a long history of social work involvement due to issues of domestic violence, drug and alcohol abuse and problematic relationships. F himself has ongoing drug issues and is immature. F does not seek to challenge the assessment or put himself forward as a carer for B and a position statement was filed on his behalf this morning stating that he did not oppose the orders sought by the Local Authority.
  17. The Evidence

  18. The written evidence is contained in a bundle supplied to all parties by the Local Authority. I did not hear oral evidence at this stage of the proceedings. The representatives for the parents did not seek to challenge any of the written evidence. I did not need to hear the social worker or the Children's Guardian because their reports are clear and comprehensive.
  19. The Parties' positions- Threshold

  20. The Local Authority contends that the threshold under s 31(2) Children Act 1989 is met by virtue of my finding of fact that M had admitted that on "10 March 2013 she carried B in a baby bouncer without strapping him in. She knew that he should have been strapped in, but was anxious to go for her lunch. She carried him through the door which hit her arm causing her to let go of one side of the bouncer and drop B from waist height. She accepts that her actions were "very dangerous" and that she lied to the hospital about what happened to avoid social services becoming further involved."
  21. The threshold document dated 12 September 2013 sought additional findings, namely that B had been exposed to domestic violence between M and S and had been brought into contact with risky adults, thereby putting him at risk of physical and emotional harm.
  22. Given M's concession in the finding of fact hearing and the parents' positions at this hearing the Local Authority did not seek to litigate the issue of threshold further on the grounds of proportionality. It is of course a matter for me as to whether the threshold findings originally sought (save for the issue of the injuries) should be investigated before I can come to a final decision.
  23. M's position is that she conceded exposure to risky adults in May 2013 and has not disputed the violent incident between herself and the step father in early 2013, although she has not formally conceded threshold.
  24. F's position is that since threshold does not relate to his care of B as he did not take care of him he does not contest the findings sought.
  25. The Children's Guardian's position is that further delay to seek to litigate the additional findings on the threshold document would be disproportionate since the case is met by what has been found or conceded.
  26. I have decided that the findings I have already made in respect of M's care of B, recorded after the finding of fact hearing, taken with the concessions she has made are sufficient. I find that as a consequence of those matters B was likely to suffer significant physical and emotional harm and neglect at the time proceedings were commenced, and such harm is attributable to the care given to him, or not given to him, by his M.
  27. The parties positions- care order and placement order applications

  28. M's position is recorded in a statement filed on her behalf on 21 January 2014. She states that while she cannot consent to a care order or a placement order in respect of B her circumstances are such that she is not in a position to meet B's needs within his timescales. With a recording that she wants what is best for B in the long term for his security and that she loves him dearly, M records that she does not actively oppose the making of the orders sought. She also states that she will help with B's life story work and will take advantage of post adoption contact.
  29. F's position is similar to M's. He is saddened by the loss of direct contact but does not oppose the orders sought. He will assist with life story work.
  30. The Children's Guardian supports the Local Authority applications.
  31. The statutory framework for care and placement orders

  32. Care orders are made in accordance with section 31 of the Children Act 1989. Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act.
  33. Under s 21(3) of the 2002 Act the court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with. Section 52(1) provides that the court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with. In deciding whether or not to make a placement order my paramount consideration must be the child's welfare "throughout his life", as provided by section 1(2). I must have regard to the 'welfare checklist' in section 1(4). I must also keep firmly to the front of my mind the guidance laid down by the Supreme Court, the Court of Appeal and the European jurisprudence.
  34. In Re B-S [2013] EWCA Civ 1146 a strong court of Appeal comprising Lord Dyson MR, Sir James Munby P and Lady Justice Black gave a comprehensive review of the law in respect of cases where adoption against parental wishes is being considered. This was an appeal against a decision made by Parker J sitting in the Chelmsford County Court, refusing a mother's application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children. The appeal was dismissed but the case not only determines the proper application of section 47(5) but also raises some very significant matters of more wide-reaching importance. In particular the full court had the opportunity of considering the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911.
  35. Sir James Munby, President of the Family Division, reminded all judges that "it is necessary for us to go back to first principles and to emphasise a number of essential considerations that judges must always have in mind, and we emphasise this, at every stage of the process." and I have borne these principles in my mind in this case, involving as it does the application for a care order with a plan for placement for adoption.
  36. Intervention of this type can only be justified in certain circumstances, as explained by Hale LJ, as she then was, in Re C and B [2001] 1 FLR 611, para 34 when she stated:
  37. "Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

  38. I have also reminded myself of the dicta against 'social engineering' in YC v United Kingdom (2012) 55 EHRR 967, para 134: "family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
  39. Section 52(1)(b) of the 2002 Act provides that the consent of a parent with capacity can be dispensed with only if the welfare of the child "requires" this. The judgment in Re B-S is clear: 'Require' has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable" and it is a stringent and demanding test. This was also stressed by the Supreme Court In re B ...A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. Orders contemplating non-consensual adoption are "a very extreme thing, a last resort", only to be made where "nothing else will do", a "last resort when all else fails".
  40. I have also reminded myself of the provisions of the Children Act 1989 s 1(5), which, read in conjunction with s 1(3)(g), and s 1(6) of the 2002 Act, makes it clear that I should adopt the 'least interventionist' approach. In Re O (Care or Supervision Order) [1996] 2 FLR 755, 760 Hale J said:
  41. "the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children unless there are cogent reasons to the contrary."

  42. In Re B Lord Neuberger stressed the principle that although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible. Further, section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act provides that the court "must" consider all the options before coming to a decision. Lady Hale said it is "necessary to explore and attempt alternative solutions".
  43. What are my options? They range, in principle, from the making of no order at one end of the spectrum to the making of a placement order at the other. In this case my options are limited because of the fact that no family member is in a position to put themselves forward as a realistic carer for B either in the short or medium term
  44. My assessment of the parents' ability to discharge their responsibilities towards B must of course take into account the assistance and support which the Local Authority and others could offer. I must be satisfied that there is no practical way of sufficient support being put in place for B to be safely cared for within his family. Lady Justice Hale said in a different Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28:
  45. "The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully."

  46. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order, and as the judge I have a duty to investigate this to ensure that resource issues are not affecting the local authority's thinking. In this case I am satisfied that the local authority has tried very hard to support B remaining within his family, from supporting M's care for him at the teenage pregnancy project, to assessing F and looking at ways to assist Mr J to care for B.
  47. Two things are essential both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order. First, there must be proper evidence both from the local authority and from the guardian addressing all the options which are realistically possible and an analysis of the arguments for and against each option and the nature and extent of the risk of harm in each of the options including the negatives, as well as the positives, of any plan to place a child away from her natural family. The CG has provided a clear analysis of the options in her reports which I adopt.
  48. Here, as in In Re G (A Child) [2013] EWCA Civ 965, there are limited options. At paras 49-50 McFarlane LJ said:
  49. "The linear approach is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

  50. My task is therefore to evaluate all the available options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the pros and cons of each option and then to compare each, side by side, against the competing option or options.
  51. The revised Public Law Outline makes it clear that if, despite rigorous case management, I do not have the kind of evidence required to perform the requisite balancing exercise, then an adjournment should be be directed. In this case I am satisfied that there is sufficient material before me to enable me to make this difficult decision.
  52. Analysis

  53. In respect of threshold I am satisfied that B was likely to suffer significant harm as outlined above. I therefore have a wide range of options, from no order to a placement order available to me.
  54. I have carefully considered the written material in the bundle, including the statements of Hayley Goodyear and Sharon Cawthorne, the social workers, the statements of M and F and the children's guardian's analysis and the final care plan for B. I have applied the Welfare Checklists in both the 1989 and 2002 Acts to B's circumstances.
  55. I am sure B would want to live within his family if he were able to do so. He is a normal, robust 14 month old little boy who his parents both love. He won't currently understand the circumstances in his life, but will no doubt question in the future why this decision was made. If it were possible and safe to do so I would have no hesitation in returning him to M's care or placing him with his F. I have extended the timescales in these proceedings to enable assessment of his wider family to take place because I wanted to explore all realistic options for him and because I wanted him to remain within his family if at all possible, especially since his older sisters have family placements.
  56. B has suffered significant harm in the form of neglect of his needs because his M was unable to prioritise his needs above her own due to her age and lifestyle choices. She has very recently separated from S and her circumstances are once again in a state of flux and instability. Neither parent can currently care for B and although the plan for adoption will inevitably mean a large change for B again the change proposed will give him stability and security.
  57. Through adoption B will lose contact with his M and F. He will have direct contact once a month until an adoptive placement is found and thereafter will have indirect contact through the WMDC letterbox system. He will lose the identity of being within his family, something which I do not underestimate. I have considered whether long term foster care would enable him to maintain those family links and provide a secure enough future for him. I have concluded that the disadvantages of long term foster care, including the possibility that carers will change careers, he may have frequent moves and the fact that he would always have a corporate parent will be significantly outweighed by the security that an adoptive family will bring him. I am sure that in B's case nothing else will do, and that his need for permanence without further delay means that his welfare interests demand that I make a care order with a care plan of adoption. That of course means that I must dispense with the consent of M (although with F since he does not hold PR it is not necessary) to B's placement for adoption. I do so with full understanding how they cannot bring themselves to consent to B's future being in an adoptive home and do so only because B's welfare requires me to do so.
  58. Decision

  59. I make a care order in favour of Wakefield MDC and a placement order in respect of B, dispensing with parental consent under s52(1)(b) of the Adoption and Children Act 2002.

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