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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Wiltshire Coucil v R & Ors [2014] EWFC B76 (30 April 2014)
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Cite as: [2014] EWFC B76

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Case No: UW13C00112

IN THE FAMILY COURT
SITTING AT SWINDON

The Law Courts
Islington Street
Swindon
30th April 2014

B e f o r e :

HER HONOUR JUDGE KATHARINE MARSHALL
____________________

Between:
Proceedings under the Children Act 1989 and
The Adoption and Children Act 2002
WILTSHIRE COUNCIL Applicant
- and -
(1) R, the Respondent mother
(2) H, the Respondent father
(3) S & L, Children, by their Children's Guardian Respondents

____________________

Transcribed by Cater Walsh Reporting Limited
(Official Court Reporters and Audio Transcribers)
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____________________

MISS BURRETT, instructed by Wiltshire Council, appeared on behalf of the Applicant Local Authority
MISS ITEN, instructed by Forrester Sylvester Mackett, appeared on behalf of the Respondent Mother
MR JOSTY, instructed by Wansbroughs Solicitors, appeared on behalf of the Respondent Father
MR MORADIFAR, instructed by Stone King Solicitors, appeared on behalf of the Children, by their Children's Guardian.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    JUDGE MARSHALL:

  1. This is the final hearing in care proceedings concerning two little girls, S and L, now aged two and a half years and 19 months respectively. Their mother is R and their father is H. These proceedings were issued by Wiltshire Council on 19th September 2013 and are now in PLO week 32, having exceeded the timetable originally set for their conclusion.
  2. The case commenced before the Family Proceedings Court as an application to extend a supervision order granted in earlier proceedings in respect of S. Those proceedings were concluded on 19th September 2012. The local authority also applied for a supervision order in respect of L, who was not made the subject of any proceedings when she was born at the beginning of October 2012. As I understand it, by the time the application to extend the supervision order in respect of S was issued, the original supervision order had expired and so eventually the local authority submitted two applications for supervision orders in relation to both children. Applications for placement orders have now also been made, to be considered if care orders are granted.
  3. H played no part in the earlier proceedings in respect of S. In those proceedings, R accepted that the threshold criteria were met as is set out in a document at A9 in a bundle of documents from those first proceedings. She accepted that S had suffered and was likely to suffer significant harm, that harm being ill-treatment and impairment of health and development on the basis of (and I quote)
  4. "physical harm through exposure to the mother's violent partners, emotional harm through exposure to the mother's volatile behaviours, neglect of basic needs and failure of the mother to prioritise the child's needs, failure of the mother to engage with professionals or otherwise address concerns, and exposure to the mother's substance misuse".

  5. In the course of those proceedings, R was assessed by Madeline Dunham and her report is at E7 in that bundle. I note that in the course of that assessment she found that mother was to be classified as of average intelligence having a full scale IQ of 99, and so this is not a case where R's cognitive understanding is impaired. At E18, she sets out a summary of the results of her assessment and says that
  6. "R does not show signs of any notable personality difficulties but does show some traits that are dependent and avoidant and she may have shown some antisocial traits in the past. She does not show any mental health difficulties at present and has no severe personality or clinical problems."
  7. She went on to set out her conclusions at E26, where she says:
  8. "I do consider that R has the potential to make the changes required but she is a young parent who has not had the level of support that she has required, has been overwhelmed by the demands of early motherhood, appears to have developed postnatal depression as a result but now seems to be in a position to demonstrate her ability to look after her daughter, if given the opportunity to do so. She does not have major personality problems, mental ill-health, notable drug or alcohol problems and, although she has been in a domestically abusive relationship, she did take steps to remove herself from it when her baby's wellbeing was threatened. She does have some psychological issues to overcome which I consider she will be able to do so with appropriate input."

  9. The social worker's final statement is in section C in that bundle, signed by Nettie Lee, who was the manager at that time. She set out her conclusions at C62. She describes S as "a healthy, happy 13-month old baby". Due to the successful outcome of assessment, S had been placed with her mother in a supportive mother and baby unit on 25th June 2012 and presented as settled and secure in her mother's care since that time. She concluded that R had shown she had a good understanding of S's developmental needs, was able to provide those to a good standard, but she would need some additional support to secure a long-term home for them. She felt that R was in a position to seek and accept advice and was able to develop constructive working relationships with professionals. It was her belief that "R will continue to work with the local authority whilst safely caring for S". The local authority, on that basis, sought a supervision order and that was granted by the court.
  10. I note that mother had not disclosed, until very shortly before those proceedings were concluded, the fact that she was pregnant with L. Partly she says it was because she had not realised she was pregnant but also, she tells the court, because she was fearful that S might not be returned to her care and she might lose both children. I am told that the children's guardian had directly asked her several times about this matter. When it eventually became known, R denied that H was the father of L. She has told the court that this was because she did not think that he was. She had only slept with him on one occasion at a party when she had also slept with another man called Joe from Bristol. However, the local authority continued to support and work with R during the period of the supervision order.
  11. The first statement filed in these proceedings comes from Sam McFall and that was dated 17th September 2013. She notes that the local authority was concerned that R had concealed this pregnancy. However, she was also confident that with appropriate support R could ensure L had the same positive parenting that she was affording S. L had been made a Child in Need. She also set out how, during the time she was caring for S and L, R had engaged with professionals and demonstrated her ability to meet the needs of both S and L, both of whom were positively thriving in her care. R accepted support as she made the transition from supported living into independent living with the girls and it was evident that R was competent in managing their care. Although there were no active concerns about R's communication with H, it was clear on the Child in Need plan that, if he sought contact, R would inform the social worker.
  12. It was during the summer of 2013 that concerns were raised that R had been seen with H. R had denied this. It also became apparent that R had had a termination in May 2013. That had obviously been a very difficult issue for her. She had been supported through that by the health visitor, but she did not inform the local authority until August 2013 and she refused to identify the father of that child. She denies that it was H. All of that was taking place during the period of the supervision order.
  13. At the Child in Need review, it was agreed that social care would end with the supervision order lapsing. That I am told was a deliberate decision on the part of the local authority and indeed that is recorded in the social worker's statement. However, soon after that there was an incident, on 27th August 2013. The police were called following reports of children screaming in R's flat and the sound of somebody being slapped. The social worker sets out how, on arrival, the police found R to have significant facial injuries, which she alleged were the result of self-harming by hitting herself in the face and hitting her head on the wall. The police report states that conditions in the flat were untidy and unhygienic. S and L appeared highly distressed and anxious. R told the police that she had not left her flat for three weeks and she referred to being harassed by her neighbours in the flat below. R was subsequently admitted to Great Western Hospital and diagnosed as having clinical depression. At no point had R discussed her deteriorating mood with the social worker or the health visitor in the lead up to that episode.
  14. During the period that mother was in hospital, S and L stayed with their maternal grandmother. Information was then received by the local authority that, following her discharge from hospital, R was staying at H's address and that she had had some of her medication delivered to that address. As a result, the local authority became concerned that the incident on 27 August might in fact have been a further incident of domestic violence involving H. But they have not sought to prove that as such within these proceedings. However, when spoken to, R was adamant that she had not stayed at H's property either with or without him being present. She told the social worker that she had learned so much about the impact of domestic violence on children that she would never be so stupid as to reinstate contact with H in acknowledgment of the potential risks to herself and her children.
  15. The social worker and a police officer visited H at his address and it was H who admitted that R had stayed with him, and the social worker records that that was said to have been between 28th August and 2nd September. He also said that they had been in contact in Devizes on 8th July as well. When that information was subsequently put to R, she admitted that she had stayed with H and that she had had contact with him in Devizes on 8th July. When the social worker asked R why she had sought to mislead the local authority, she said that she had been concerned that the local authority would remove her children.
  16. The evidence as to what was said to the social worker is not entirely accepted by R and H. They both say that R only visited his property for a few hours following her discharge from hospital and that the social worker misunderstood what they had said to her. They had bumped into each other while out and about in Devizes. No real explanation has been given as to why R sought out H at this time, but I note that it forms a pattern of her turning to him at times when she is upset or feeling desperate, or, as counsel for the local authority put it, that is where she goes when she is in a crisis. It is significant that R lied to the social worker about this and that it was H who gave the honest response which then led to R admitting that she had not told the truth. However, again I have to note that in spite of this information, the local authority's application to the court was for a supervision order for the girls. In fact it was the children's guardian who was concerned that, in the light of all this information, the orders sought were insufficient protection and she persuaded the family proceedings court that was so, and an interim care order was made in the early part of these proceedings thus ensuring the local authority shared parental responsibility.
  17. A further statement was filed by the local authority setting out what the plan would be under the interim care order. That plan largely reflected the plan that had been established by professionals working with the family which included twice weekly visits from the community psychiatric nurse, fortnightly visits from the social worker and monthly visits from the health visitor. The nursery would also monitor S's attendance, behaviour and presentation. The community psychiatric nurse was to assist R to reintegrate herself and S and L into the community and to undertake one-to-one work with R in relation to her self-esteem, whilst also educating her in relation to self-harming-avoidance strategies.
  18. R was also referred to the psychological therapy department, R having confirmed that she would engage with that service. R was expected to adhere to a written safety agreement in place in respect of her contact with H. The social worker submitted a referral to SPLITS so that R could undertake further work in relation to the impact of domestic violence on children and parenting capacity and R agreed to participate in the next Freedom programme.
  19. The court was updated by the social worker filing a further report in which she states that, following the court hearing on 15th November, R continued to engage well with professionals seeking to support and monitor her care of the children. She continued to work with the community psychiatric nurse in relation to her mental health and had scheduled an assessment appointment with regard to the DBT for 11th December. She had made links with the local mother and baby group with her psychiatric nurse's support and her place on the Freedom programme had been confirmed. The social worker also wrote that
  20. "alongside R's positive care of the children it also seemed evident that R was starting to work openly with the local authority".

  21. On 19th November, R disclosed, without prompting, that earlier that day she had seen H in Devizes. R had allegedly informed H that due to current court proceedings she was not permitted to have any contact with him, that he should not approach her and see her within the community. She said that H had accepted that advice without challenge. However, shortly after that, an incident occurred on 8th December where again the police were called to the mother's address and H was found hiding in a wardrobe by the police. The social worker has set out, at C42, a summary of the police officer's report in relation to that incident.
  22. The police had received a third party report of a verbal argument between a male and a female at R's address. When the officers arrived at the scene, they were informed by R that there were no males present in the flat. The officers made some door-to-door enquiries and as they were about to leave they heard a male's voice from within the property. The police carried out a search of the property and found a male hiding in the wardrobe who they identified as H. The police report states that both R and H denied having an argument but confirmed that they were in a relationship. H was subsequently removed from the property. R and H do not entirely accept the police account of that incident.
  23. The social worker phoned R and advised that she needed to see her. R insisted that the children were safe; that H had arrived at her home without invitation the previous day and she said she had hidden him in the wardrobe because she knew that she would be in trouble if he was caught at her address. R said that she had argued with H after demanding that he leave her residence. As a result of that incident, the children were removed from R's care and that took place in circumstances that were no doubt emotional and traumatic for all. It is fair to say that R's inability to control her own upset meant that she was unable to manage the situation in a way that was supportive for them.
  24. However, since S and L have been accommodated on 9th December they have settled well within their placement and have developed positive relationships with their foster carers. Throughout the period that the children have been in care, R has consistently attended the supervised contact at the Trowbridge Resource Centre which takes place twice weekly. Communication with the contact workers and the contact recordings inform that this contact has gone very well. There are no issues around contact, certainly not recently. R has attended on time and the children have enjoyed that contact.
  25. Even following that incident on 8th December which resulted in the loss of the children from her care, it seems that R continued to be in contact with H. She sets out in her own statement, at C55 in the bundle, how, on 12th December, her community psychiatric nurse discussed with her that it may be a good idea to visit H, obviously with the nurse being present, to see what his position was. This was in relation to what should happen to the children. She says,
  26. "Obviously the children having been removed from my care was affecting my mental state drastically. It might help to know whether he wished to have any involvement in the proceedings."

    By that stage, DNA results had confirmed that the children were full siblings.

  27. Then again, on 14th December, R sets out in her statement how she received a phone call from H. She says he was contacting her to tell her that he had received a letter about attending court. He seemed very confused as to why he had received it because he was not sure in any event that the children were in fact his. R confirms that she did attend at his home because he wanted her to explain the letter to him. She says she was concerned that he was receiving correspondence from the court when it had not been confirmed that he was the father,
  28. "and I really didn't want him involved in the children's lives because of his previous behaviour".

    She goes on to say,

    "H C did assault me on that evening. I rang the police straightaway and have made two statements to the police who have supported me. I am in contact with my domestic violence worker and have pressed charges against H."

    H was convicted of that assault in January. He pleaded guilty to the offence and is now subject to a community order.

  29. In the meantime, the local authority continued care planning within the proceedings including looking at wider family members. As a result, a viability assessment was carried out of MA and PA. Unfortunately that was a negative assessment and the social worker has set out in her statement, at paragraph 1.9, the reasons why the local authority did not pursue a full assessment. H has had an opportunity to put forward anyone that he would wish to be considered as alternative carers but he has not asked for anyone to be assessed.
  30. The local authority filed its final evidence and the social worker sets out in her statement, at C85, paragraph 1.18, the assessments that were completed in relation to R. She says that
  31. "R has undergone assessment and monitoring on a continued basis since S was a newborn baby. This has included within the previous care proceedings relating to S a community-based parenting assessment in two parts and a psychological assessment by Madeline Dunham".

    She notes that no further assessments were ordered during these proceedings.

  32. Following the filing of that final evidence, at the request of those representing the mother, the social worker also provided a further statement setting out a schedule of the supports that had previously been provided to R and identifying what support will be available in the future if the children were to remain in her care. In her evidence, the social worker reminded the court that those supports would simply be a repeat of what has already been provided to R.
  33. Miss McFall considers the issue as to how capable R is of meeting the children's needs. In her statement at C96, paragraph 2.14 and 2.15, she says:
  34. "I would suggest that whilst R could meet the children's day-to-day needs she cannot ensure the continued provision of a safe and stable home environment as a result of her own mental health needs, inability to acknowledge and respond to risk and inability to work openly with professionals. R has been identified as telling multiple mistruths to the local authority and this prevents accurate risk assessment."

  35. She describes R as unpredictable and that R identified within her recent statement that she acts on the spur of the moment.
  36. "Unfortunately these actions place her children at risk of harm. In order for R to keep her children safe, she needs to fully engage with the mental health support available to her. It seems apparent that she has unresolved issues from her own childhood which she needs to address. For example, on 3rd January 2014, R identified that she has and has always had low self-esteem and a tendency to think positively of people when she needs to be more cautious".

    The social worker identified that these characteristics make R and her children vulnerable. She concluded that unfortunately while a DBT course may benefit R greatly, completion of that would not now be within S's or L's timeframes.

  37. Miss McFall went on to consider the risks posed by H and concluded that in this case the only safe option for the children was that the local authority be granted a full care order. The care plan would be for S and L to be adopted, as opposed to remaining in long-term foster care, on the basis that S and L both require stability, consistency and security; that there is research to suggest that disruption rates for children in foster care compare unfavourably with those for children who are adopted and that further disruption could have a detrimental impact on the emotional wellbeing of the children. She identified that adoption would offer the children the ability to become part of a family unit without having to endure the typical Looked-After-Child processes that will impact on them as they develop. She also identified that adoption would cease R's parental responsibility for the children which would be pertinent for their ability to bond with new carers.
  38. She went on to deal with proposals for contact which would be indirect contact twice a year, that being assessed to be the level that would be in S's and L's best interests. It was felt that although the children have a relationship with R and share a positive bond with her, there would be a risk to their emotional wellbeing as a result of them being reunited and separated from their mother though direct contact. It was also felt that there would be a risk to S's and L's ability to form positive attachments to new carers if they maintained direct contact with their mother.
  39. Finally, there was also some concern that, as a result of R's impulsivity, she might seek to abscond with the children and that direct contact would be difficult for the carers to manage in the light of R's tendency to be uncooperative with carers and professionals.
  40. R's position is that whilst she concedes that threshold has been made out and that she has made mistakes including in the course of these proceedings through her actions, the children should still be returned to her care. In that position, she is supported by H. A position statement was filed on her behalf at the outset of this hearing. In that statement, she urges the court to accept that the permanent separation of the children from her and their wider birth family is a disproportionate response to the risk posed by R and H. Since December 2013 R has continued to engage with mental health services, completed the Freedom programme again and there have been no further incidents of domestic abuse between the parents. Mother has attended contact regularly and reliably and punctually and the local authority has accepted that that contact has gone very well.
  41. Mother points out that she was able to care for S and L with the local authority's support to a good enough standard including the provision of a safe home environment and safeguarding the children from conflict for more than a year; and that the local authority was content for the children to remain with R even when her mental health deteriorated in August 2013 and that there were reports that she had been in contact with H. The local authority only reached the conclusion that R was unable to care for the girls after the father went to the mother's home on 8th December. R says that this was at a time when H was not fully aware of the local authority's concerns about the risks that he posed to the mother and the children. R says she was nave about the risks that H posed following the assault upon her. She is now under no illusion as to the risk that he poses. In addition, I am asked to take into account that H is due to engage in work with the probation service including the Building Better Relationships course, and that he has made it clear that he would accept orders being made forbidding him from contact with the mother. It is submitted that there is a viable alternative to adoption and therefore the making of a care order with that care plan and the making of placement orders cannot be justified.
  42. The children's guardian's position at the end of the evidence has been confirmed to be that as set out in her position statement and final placement reports. She supports the local authority's application for care orders and placement orders.
  43. Within these proceedings I have reminded myself that it is the local authority that bears the burden of proof and must satisfy the court - the standard being the balance of probabilities - that it has met all of the requirements necessary for this court to approve what is often referred to as the most draconian order, which is a care order with a care plan for adoption and placement orders.
  44. I start by recording that it is not in dispute that the threshold has again been met in these proceedings. That was accepted on behalf of R as is set out in the document at A29 to 30 in the bundle; that, on 27th August, she engaged in self-harming behaviour whilst the children were in the home with her, albeit not in the same room; that she was suffering from postnatal depression for which she had at that stage only just started treatment because she had not realised how low her mood had become until the incident on 27th August; that her poor mental health and self-harming behaviour led to her being unable to care for the children for a period of six days; that the father had in the past perpetrated domestic abuse against her and he continued to present a risk of further domestic abuse to the mother and the children; that the mother was nave in not recognising that the father still presented a risk to her and the children, and that the mother's ability to protect the children and herself from the risk of domestic abuse from the father was impaired by her poor mental health and her naivety as to the level of risk that he presented.
  45. Threshold not being in issue, I turn then to consider the welfare issues in this case. The children's welfare is, of course, paramount and consideration must be given to the matters set out in the welfare checklist contained in section 1(3) of the Children Act 1989. The local authority asks the court to approve a care plan for adoption. In those circumstances, the court should also consider the factors in the welfare checklist, as it is set out in section 1(4) of the Adoption and Children Act 2002. In addition, the court must also pay heed to the requirements of Article 8 of the European Convention on Human Rights, balancing any competing rights and only sanctioning interference with such rights if necessary and proportionate to meet the child's welfare.
  46. R is a young mother of two young children who she adores and finds it impossible to consider being separated from. No one in this case can have any doubt of her love and her commitment to them. It is not in issue that R can provide good practical care of her children and when she is stable in mood she exhibits good emotional warmth. There were no significant issues seen in relation to the children's development when they were removed into foster care that I am asked to take into account in these proceedings.
  47. It will be important for the children to be cared for by a parent who puts the children's needs before their own and provides them with a sense of security, such that they feel physically and emotionally safe and securely attached to them as a primary carer. I note that these children have in fact been able to show attachment to their foster care. That has been observed by the guardian and helps the court to understand that these children have had good care from their mother. They will need to be protected from conflicts between the adults around them. Any relationships which R makes need to be healthy and sustainable with partners who can support her and the children and assist in ensuring that their needs are met. In R's case, as it is identified that she needs continuing support of professionals, it is also important that she has an ability to work openly and honestly with professionals.
  48. These proceedings must have been very difficult for her, including this final hearing at which she has given evidence. At times, understandably, she has been close to tears. She has been able to express her emotions fairly freely at times and as a result she can come across as rather immature. But what strikes me is her considerable commitment towards achieving the return of the girls to her care. She has accepted that she has made mistakes and that she has been untruthful. She says she has learned her lesson and that it will not happen again because of the love that she has for her girls. She has told the court how she completed the Freedom programme that she had been on before but some of which she had forgotten, and she was able to give me an impressive account of what she had learned. She told me that she was now aware of the personalities that she needs to watch out for, that she had learned that people can take advantage of you. She understood now how domestic violence affects children. She told me that it had opened her eyes a lot, information that she had not recalled from when she had done the course previously. It had refreshed her mind to how bad domestic violence is and the risks involved and how it affects children as they grow up; that children need to live in safe homes and without that they fail to have self-respect and confidence in later life.
  49. Looking at the evidence as a whole in relation to her encounters with H, it demonstrates that even after she experienced that poor relationship when they were first together, and following the work that she did the first time round on the Freedom programme, she has been unable to keep away from him. Some of the encounters she explains away as chance meetings that she had no opportunity to avoid, and she felt it necessary to say "Hello", not wanting to provoke H. But that does not apply to other encounters she had, including sleeping with him at a party which clearly involves more. Indeed, on several occasions she herself has sought him out, notably immediately after the self-harming incident, which in itself raised some concern (if not suspicion) as to why it was him that she went to see on her discharge, something which she did again after the 8th December incident. However, I accept that R has not seen H after the assault on 14th December, and there is no evidence to the contrary.
  50. In relation to R effecting change, the guardian believes that therapy is the key, and I consider that in the light of Miss Dunham's recommendations made some time ago. It is the guardian's view that R will be able to engage and make progress, which will be protective in the long-run for R in helping her to manage her emotions and her decision-making. However, the recent information provided to the court indicates that as a result of mother not communicating with the community psychiatric nurse, that has led to a cancellation of the DBT that was being set up for her. It was also indicated that R had not in fact attended all of the Freedom programme sessions, which R accepts but says some of which was due to late attendance, which puts into question how much reliance the court could place on R's exhortations that she has now learned her lesson.
  51. I also take into account that these concerns have arisen in proceedings and at a time when R knows that the children have been removed and the possible consequence being that they might be adopted if she is unable to resume their safe care. While she cites the children as a motivating factor, that does not appear to be borne out in some respects by her behaviours, particularly in terms of the level of engagement as set out above. In addition, I have to note that S was previously removed from R. So this is not the first time that she has been in proceedings facing the prospect of losing one of her children.
  52. That she needs this therapy is also demonstrated, in my view, by the impressive knowledge that she has of understanding of domestic violence issues but the lack of insight that she has in terms of relating that to her own situation. The children's guardian has said that R was similarly able to inform her about these issues after the first session of the Freedom programme that R attended. I am also concerned that R does not take on board that this information relates much more widely than to her relationship with H. It also relates to risky behaviour, which it seems to me there is still some evidence that she engages in, including the rather casual sexual encounters that she has had (some of them resulting in pregnancies).
  53. I turn then to consider H. I found H to be very straightforward in giving his account, which I felt was reasonably honest. He was open and candid about his previous history and volunteered information about a previous incident of domestic violence involving a different partner. He took full responsibility for his actions and he recognised the concerns and the reasons for the local authority's application.
  54. I note that H is not here making an application in his own right; he is here to support R and at times I did feel that he had tailored his evidence to that end. However, I do give him credit for continuing to engage in these proceedings particularly after the court rejected his application for assessment. His involvement, with the help of Mr Josty, his counsel, has helped me considerably in reaching decisions in this case. He was open about the difficulties that he has faced since he was attacked in 2011, his cognitive functioning is slower and he still experiences some physical difficulty when walking. It has also had an impact on his memory and he told the court that written prompts are more useful to him.
  55. Rather in contrast to R, I was impressed by the maturity that H showed in his approach, not only to these proceedings but also in relation to the criminal proceedings. He pleaded guilty at the earliest opportunity. He has engaged with probation, and I note that that is a very different picture to an earlier history of failure to comply with court orders, none of which is demonstrated in relation to this current sentence. He tells me he has already finished 40 hours of community service and completed all of the sessions of Getting To Know You, which I understand is a precursor to the Building Better Relationships course. The guardian tells me that that Getting To Know You is an important precursor, assessing whether someone is likely to have the ability to engage with and be suitable for the Building Better Relationships course, which is a course that is only available if you are assessed as meeting some fairly stringent criteria in relation to risk.
  56. However, H still has a long way to go before the results of that course can be assessed as to his ability to implement change. What I think is clear is that he is committed to do so and I give him full credit for that. I am sure he stands to gain a great deal from it and, in my view, the prognosis that he might be able to effect change in his case is therefore fairly positive. He does understand that any relationship with R is one that carries a high level of risk of arguments and possible violence, and I accept that it is his intention not to contact R in the future. That seemed to me to be a genuine intent. Indeed I note that previously he sought an harassment warning against her which I understand R was given.
  57. H has said he will be willing to accept orders against him in these proceedings and I form the view that he is likely to abide by them. I accept that it is likely that previously he has not had the information that engaging in these proceedings has now provided him with. I note that he has gone on to file statements in these proceedings as directed and agreed to meet with the guardian, which was most helpful. In particular, I accept the evidence he gave, and about which he was cross-examined, that he was not sent correspondence by solicitors acting for R in November 2013, and that further confirms my assessment of his genuine credibility and honesty in the way he has given his account. He was not involved in the earlier proceedings and the point has been made that the local authority did not seek to involve him in the work that they were doing with R. It is possible that at that stage he did not wish to be. But now, having had the benefit of legal representation and the opportunity to hear the evidence, including that of the professionals, I find his reaction has been wholly positive. He exhibits an understanding of the issues and that is a considerable change in position.
  58. If the children were returned to R's care, he would like contact if possible and recognises that that would need to be supervised. However, he himself has recognised that it was not appropriate for that to take place when it was suggested that it might be set up earlier and, at the close of these proceedings, has indicated that he would not seek to have contact with the children until he has completed the probation work and that contact is assessed to be in the children's best interests. That strikes me as a very child-centred approach and, of course, one that might assist in being able to consider whether in fact the children could return to R's care, as this would lessen the risks if there were to be no contact for him with the children until that was identified as being in their interests and manageable.
  59. I turn then to consider what are the key issues in this case. Firstly, the court needs to determine whether R has the ability to keep the children physically and emotionally safe, and safe from risks that are identified to stem from mother's previous engagement in relationships, those risks being in relation to domestic violence, and also in managing her own mental health. I have to consider what is the prognosis for R being able to do that in the light of recent events in the current proceedings.
  60. A further issue is whether the local authority is able to prove to the required standard that its plan for adoption is appropriate; in other words, that nothing else will do and that there are no other alternative viable options.
  61. Finally, there is the issue of the children's timescales. The guardian has reminded the court that S has been in proceedings throughout her life and L for all but a couple of weeks. These are young children and decisions need making now to settle their future placement. It is therefore necessary that the court can have a sufficient level of confidence when making the decisions today, that these children will not have to be returned to court in future proceedings requiring a yet further change in their placement.
  62. On behalf of H, it is suggested that there is a gap in the evidence because no risk assessment has been done in relation to him. That issue was raised when the application for psychological assessment was put before the court and refused. I form the view that the evidence about H being a risk does speak for itself, and in any event is accepted by R. The court has the benefit of MARAC assessments and the recent probation assessment of risk.
  63. Furthermore, I am satisfied that the evidence that I have heard within these proceedings from H allows me to make an assessment of his likely cooperation and whether he would work openly and honestly with professionals if required. Although at this time he remains a risk as far as R is concerned, certainly while he completes the Building Better Relationships course which it is hoped will assist him in future (and I have already indicated that I no doubt of his intention to complete that work), I am also satisfied that he will cooperate, whether with professionals or court orders. I also believe that, if the local authority required it, he would let them know that R had been in contact with him. H understands how important this is for his children, I am satisfied of that, and supported in that by the children's guardian's view that he demonstrates a child-centred approach.
  64. In contrast, the court has to look at the recent examples of R making poor decisions and failing to put the needs of her children before her own. That, of course, includes the self-harming incident where R says that she has hit her own head a hundred times. This is a serious incident that led to R needing hospital treatment and the children having to be cared by their grandparents; and on her evidence it did arise out of her own actions, which I immediately clarify is not to blame her in any way, but to indicate that she found herself in a position where she was unable to use the supports that were around her at that time to avoid the situation deteriorating to that point. It is highly likely that during this period running up to the mother getting to that point where she was so desperate that she caused herself such substantial injury, that the children were affected by that. I find it significant that R sought to mitigate the impact of this incident on her children by simply saying that they were in bed.
  65. That theme of seeking to mitigate the impact on the children is one which is echoed in the note that R passed to me through her counsel. She tells me how much stronger she is getting and that losing her children is the hardest thing and that that makes her stronger. All she wants is for the children to have a safe, happy home where they are loved. She says,
  66. "I've made mistakes that mean that it hasn't been the case on occasion but I'm determined and willing for my children..." Then she added this at the end, "as I know, they haven't witnessed domestic violence and were happy at home".

    That to my mind showed a significant lack in her understanding, which prevails, where she simply says,

    "It's okay because they didn't witness domestic violence."

  67. I have to take into account the incidents when she sought out H. It does raise the question as to why she would do this so long after that relationship had ended. I also have to take into account the fact that on 8 December she had the opportunity to use the police to remove H, an opportunity which she did not take. That leads me to conclude that that is because R was more driven to cover up the fact that H was there for fear of the local authority finding out, than to protect her children. She and H had already been arguing, they say out in the corridor. With him now in the flat, there was a real potential for there to be an incident and with the children present.
  68. Then, finally, her choosing to go round to H's on 14th December, at night, was extremely risky, as was evidenced by what then happened. This is a further example of R, through her own actions, putting herself in a position of risk. The fact that the children were not with her at that time and did not witness any of that is not the issue.
  69. It is not in dispute that she failed to work openly and honestly with the local authority, indeed R is not in a position to deny that. The result is that that is an important part of the protective picture that waits to be demonstrated and it is of concern that she has not been able to do that throughout the life of the supervision order as well as throughout these proceedings, a considerable period of time. I am now asked to rely on her assurances, repeated by her counsel, that she will be honest and open if given this last chance. I am asked to take into account the considerable progress that she made from the situation at the beginning of the last proceedings when she was much younger, homeless and had a chaotic lifestyle; and the fact that the court concluded that the children should be returned and the positives that followed with her care of the children during the time they were with her. I do, of course, take into account all of that. Those are not inconsiderable issues and count for a great deal in the balancing exercise that I will come on to.
  70. I accept the opinion of the psychologist who previously assessed R to the effect that to change she needs to undergo a significant period of therapy in the form of DBT. However, her failure to engage and her inability to work openly and honestly with professionals leaves me more doubtful than the guardian is that R will be able to engage effectively in that process. I am afraid I find that the prognosis for change at this time is rather poor. Furthermore, this significant period of therapy is going to be well outside these children's timescales.
  71. The local authority's case is that even if further resources were put in, this is unlikely to effect change. The local authority is also concerned that if the children are returned to the mother's care the same risks will continue, they point out that this is not necessarily in relation to H, and that if that occurs the children will again need to be removed, that being detrimental to their emotional wellbeing. S has already been returned to her mother's care once following a removal. It would be extremely damaging to her if she were placed with her mother and had to be removed again.
  72. On behalf of R, it is suggested that the events in December have been a cathartic experience and that she will now act differently in the future. However, the local authority does not see any real change, and the guardian indicates that all of this has been said before.
  73. I conclude that the evidence points overwhelmingly to a conclusion that it is unlikely that R will demonstrate that she can keep the children safe. Certainly she has not been able to demonstrate the necessary changes in her behaviour to date, nor is it likely she will be able to do so within the children's timescales. That will, of course, leave them at risk if they are returned to their mother's care. I have taken into account what has been suggested, that this court could impose some court orders, something that was not previously used. However, the local authority is concerned that R herself would not make use of those orders, even if they were granted. I accept the force in that argument in circumstances where on several occasions it is R who has been contacting H. Further, I am satisfied that H will keep away and would abide by any orders. I would have to question, therefore, whether an order is necessary and appropriate, and would have some concern that imposing an order on H would put him at risk if R were to then put him in a position where he was found to be in breach. Indeed it would be my view that for orders to be useful in these proceedings, they would need to go in both directions. I point again to the fact that H obtained a harassment warning notice against R previously, and that may be some explanation as to why there were no incidents being reported in 2011.
  74. So while orders could assist, I have to conclude that they are not necessarily appropriate in the way that they are suggested to be used and indeed would not cover all of the issues of risk. As I have said, the local authority identify that the concerns are not just in relation to H and, while he takes responsibility for his actions, that is not the sole issue in this case.
  75. The local authority proposes that an alternative family placement be found through adoption, there being no other realistic alternative for children of this age whose future welfare requires that they grow up experiencing the stability and security of family life.
  76. As I turn to consider that application, I remind myself of the following principles. There is a presumption that a child's best interests are served by being with their parents wherever possible. Decisions that involved the long-term separation of a child from the family or adoption require a high degree of justification. It must be necessary and proportionate, and where the intervention is extreme, as in this case, the court must be satisfied that nothing else will do. The task of the trial judge making the ultimate determination of whether to make a care order is more than to exercise a discretion, but carries with it an obligation to determine the application in a way that is compatible with Article 8 and to apply the yardstick of proportionality. A linear approach to deciding outcome is not appropriate. This means it is not appropriate to evaluate and eliminate an individual option, to be left with the alternative. A global holistic evaluation of each of the realistic options available must be conducted. The global evaluation requires a balancing exercise in which each option is evaluated to a degree of detail necessary to analyse and weigh the positives and negatives of each option side by side. An express choice should then be made by applying the child's welfare as to paramount consideration. The court should also contemplate why any conclusion that renders permanent separation is necessary on the basis that it is the last resort and nothing else will do. Finally, the court should be satisfied that there is no practical way that the local authority or others can provide the requisite assistance and support required for the child to remain within the family.
  77. Applying those principles, I have considered the relative advantages and disadvantages of the children being cared for by their mother, as opposed to adoption. They would undoubtedly wish to be able to be brought up by their mother and thus grow up within their birth family, with all the known advantages that that would afford them throughout their life. Placed with their mother I have no doubt that they would experience the considerable emotional warmth that she has previously exhibited, albeit that may not always be consistent.
  78. However, the court has to weigh against that the very real and identified risk that they will be exposed to and likely experience significant harm in their mother's care, including that risk flowing from any relationships involving domestic violence. I have satisfied myself that some of the risk of that from H can be significantly reduced, but the unaddressed risk in future relationships remains. Further, at times, there remains the risk of significant emotional neglect which would impact on the children's development and their capacity to function successfully as adults in the future.
  79. My analysis of a poor prognosis for change in future is a factor that must be given considerable weight. This is not a case where the provision of support services is likely to make any appreciable difference, given the opportunities that R has had to date, the support already put in and R's failure to work openly and honestly with the professionals and even follow advice, particularly in relation to H, or to engage with her community psychiatric nurse. Unfortunately R has still not demonstrated that she can act protectively in relation to her children.
  80. If adopted, it will be hoped that the children, who the local authority plan should stay together, would become full members of the loving and supportive family that would met all of their needs throughout their childhood and which would remain their family throughout their life. If the children cannot be provided with that by remaining in their mother's care, there are no other available options put before the court in this case that would provide them with a stable and secure family life other than through adoption. However, I have to factor in that adoption carries with it the obvious disadvantage that the children will not grow up within their birth family, which they will need to come to terms with at some point in their life. I place great weight on the disadvantage for children of losing that opportunity, together with the loss of an opportunity to get to know their father, H, as well as the impact on R of not being able to care for her daughters.
  81. Miss Iten has mounted a brave case on behalf of R and I have to say she could not have said anything else or put it more persuasively. However, unfortunately, having considered all of the evidence and carrying out the required balancing exercise, I conclude that this is a case where the evidence in relation to risk and the likelihood of future harm and impact on the children through their life outweighs all other considerations. I am satisfied that the local authority has established its case and the plan for adoption is the only way to secure the children's welfare and to keep them safe now and throughout their life.
  82. I am satisfied that the care plan that the local authority puts before the court that S and L should be adopted and the granting of care orders as sought by the local authority is necessary and proportionate in all the circumstances, and that this is a case where indeed nothing else will do.
  83. Having granted the care order, I go on to consider the local authority's application for a placement order. Much of the evidence and my analysis of it as already set out in relation to the care application, applies to the placement application and I need not repeat that. It follows that I have also taken into account the issues in relation to the interference with Article 8 rights and I included those in my consideration of whether I should approve a care plan for adoption. I have already determined that adoption is in the children's best interests and considered the welfare checklist under the Adoption and Children Act 2002, and formed the view that nothing else will do, and I have granted the local authority care orders with a view to them finding an appropriate family to adopt the children without delay. All the evidence is that the local authority will find no difficulty in securing an alternative adoptive placement. These children have no special needs and I have already referred to the fact that they have settled well with their foster carer and been able to form attachments to her.
  84. It is clear that R opposes the children being placed for adoption and will not therefore provide her consent. In such circumstances I have consider whether the children's welfare requires that I dispense with R's consent to placement for adoption. I should add that H does not have parental responsibility for either child, and so under the Act, his consent is not required. Having made the findings that I have in relation to the care proceedings, including that there is a poor prospect of R being able to effect change within the children's timescales, I am satisfied that the children's welfare does require that I dispense with parental consent for their adoption to avoid any further delay for them.
  85. In those circumstances, I therefore make the placement orders permitting the local authority to place S and L with prospective adopters.
  86. Before I finalise these proceedings, I express this hope, that R and H will continue to engage with the local authority, particularly in the life story work and in relation to the indirect contact. I indicated to H when he joined in these proceedings that, even if he was not putting himself forward as a carer for the children, he had an important part to play in the proceedings. He has taken that opportunity fully and he has acquitted himself extremely well in that regard. I hope he will continue to do so and work with the local authority in providing some information that his children will in future find extremely useful.
  87. I know that R will find this difficult but I ask her to consider that engagement in life-story work for S and L gives her an opportunity to demonstrate that she can cooperate. R is a young mother, she needs this therapy. There is every possibility that she will have more children in the future. I really hope that she will take on board now the necessity to demonstrate some change in relation to her working with the local authority, looking to her own needs in relation to her mental health support and in terms of the therapy. The guardian has pointed out what a tragedy this case is and I echo that. There is no doubt this has proved a lost opportunity for R. It is unfortunate that her children simply cannot wait. I hope she will not lose any further opportunities in the future.


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