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Cite as: [2019] EWFC B27

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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 child and members of the 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: BS18C00483


2, Redcliff Street, Bristol.
11 June 2019

B e f o r e :


X Council
- and -

M (the mother)
First Respondent

F (the father)
Second Respondent

A (a child, by his guardian)
Third Respondent


Abigail Bond for the Local Authority
Sorrel Dixon for the mother.
Sarah Phillimore for the father.
Alison Lippman for the child.

Hearing began : 4th June 2019



Crown Copyright ©

    HHJ Wildblood QC:

  1. Just over a year ago a little boy, to whom I shall refer as 'A', was born to parents who both had very troubled backgrounds. A is the mother's seventh child (she has also suffered a large number of miscarriages over the years– B14) and the father's third. Each of the previous children of both parents have been removed from their care. A is the first child of these parents together, but the mother is now pregnant again by this father and their second child is due to be born in early August.
  2. The parents, who are both in their late 20's and remain together, love A deeply and have been prepared to engage in therapeutic and other support in their wish to demonstrate that they could care for A. They have also undergone intense assessment, including a residential assessment, of their ability to do so. The Local Authority, guardian and those who conducted the independent residential assessment now all say that the parents cannot care for A adequately and that he must now be placed for adoption.
  3. The parents do not agree with the Local Authority's care plan and wish to be able to care for A together in the community. They regard the residential assessment to have been unfair. They say that they would be supported in caring for A by their respective families but particularly by the father's parents, that they have been in a relationship now for three years, that they have accommodation where they can care for A, that they would care for A with love and commitment and that they would accept professional help [A102 / A114 and A103-4 / A123-4]. If, which they do not accept, A should be placed for adoption, they would both want to have contact with him [e.g. A115].
  4. Already A has a number of disadvantages [F40]. The updated medical report of Dr B (dated 7th January 2019) states: 'A is healthy but there are ongoing concerns about developmental delay. He was premature and also has a family history, on both sides, of developmental delay and learning difficulties, so A is at high risk of developmental delay. This will need to be monitored.' A was not discharged from hospital until he was a few months old. Following his discharge from hospital, he was placed in foster care under an interim care order with the parents seeing him for up to five hours a week (there have been some fluctuations during these proceedings in the arrangements for contact). He then spent nearly four weeks with the parents in the residential assessment, where, it is said, the parents were not able to care for him consistently, before returning to his previous foster carers. Those foster carers cannot offer him a long-term home. Therefore, A has already experienced a very unsettled upbringing and, it is said by the Local Authority and guardian, needs his future to be decided urgently.
  5. Since A's birth, the parents have committed themselves to working with a wide range of initiatives which provide support, counselling and therapy and, as a result, developed their understanding of parenting considerably. Consequently, the parents moved about three months ago with A into the residential assessment placement to see whether they could now care for him. The assessment was intended to be a short period of observation for four weeks and, if things went well, it was intended that there would be a further two weeks when the parents might transfer with A into the community for further community based assessment of their ability to look after him in the long -term. For the first two weeks matters did not go well within the assessment unit. In the third week there seemed to be an improvement but then there was a dramatic collapse of the parents' care of A which led to the termination of the assessment. The father became profoundly frustrated when caring for A and unable to control his emotions (i.e. he became 'emotionally dysregulated' or, in everyday language, 'lost it'). The mother was not able to contain the father's emotions and did not feel able to care for A on her own; although she was offered the opportunity to remain at the assessment unit, she chose to leave as well having been told that, if she did stay, it would not alter the unit's recommendations. The mother also said that it would be too difficult for her to remain without the father given that she was pregnant and felt that she needed his support [A101]. Since A has returned to his previous foster carers the parents have seen him twice a week, with each visit lasting for two hours. They have always attended contact regularly and have done their best to engage with A during it.
  6. These proceedings have been going on for a long time – since A's birth. The Local Authority began to be involved with these parents prior to A's birth, having had so much experience of this family through proceedings relating to previous children. It says that every conceivable effort has been made to see if the parents can retain the care of A and that, now, it is imperative that final decisions are made in these much-delayed proceedings. The guardian agrees.
  7. To make any sense of the work that has been done with these parents since A was born, I have to refer to a number of different groups which are:
  8. 'F' Service A Dr G of that service has given evidence and referred the parents to the 'L' Project.
    The 'L' Project This provides 'MBT' (mentalisation based psychotherapeutic 'treatment' – mentalisation is the ability to understand the mental state, of oneself or others, that underlies overt behaviour.) The parents have both engaged with this project. The therapeutic input ended for the father at the end of May 2019; the mother has two more sessions to attend there.
    'FPS' This is a Local Authority initiative which provides support and guidance for parents who have experienced the removal of previous children. The parents have worked with a Family support worker from this initiative on at least a fortnightly basis and continue to do so.
    The residential assessment unit. This term is used in this judgment to describe the unit attended by both parents this year and where the psychologist Dr Al works. Dr Al has given evidence as an expert in this case. The principal social worker from the unit has also filed a detailed report and has given evidence.
    NW project This is a Local Authority Domestic Violence project with which both parents engaged during the autumn of last year.
    Attachment work At C-58 it is recorded that the social work did this type of work with the parents when the mother was pregnant with A. The social worker says: 'this is work around attachment and developing attachment with a baby in the first year of life.'

  9. The main problems faced by this mother are said to be these:
  10. i) The mother has a history of having each of her previous children removed from her care. Two are subject to full care orders and have shown such disturbed behaviour that it has been very difficult to find them long-term placements. Three have been adopted. One is in the care of Spanish authorities after the mother and the father of that other child left this country hurriedly and the mother gave birth to that child on a beach in Spain. Her previous children, and the orders relating to them, are listed at A83 of the bundle.

    ii) Over the years there have been many assessments, of many different kinds, of her ability to parent. Each assessment has concluded that she does not have the ability to parent a child safely or adequately. In relation to the last child born to the mother before A there was a lengthy residential assessment of the mother and that child (this father was not 'on the scene' at that stage).

    iii) The mother has borderline cognitive functioning; her full-scale IQ has been assessed at 75 [H-247]. Although she has engaged with therapy and support offered by the Local Authority it is said that there is a lack of 'content and depth' when the mother has reflected on her past and also that she has not been able to put into effect the things that she has learnt [A87 and F26-32]. There was hope that, given the progress that the mother made in therapy, the residential assessment would reveal that there had been sufficient changes to justify A remaining in the parents' care [A96-7]. The opinion is that the residential assessment has demonstrated the opposite. It is also said that it is one thing to discuss mentalisation in theory during MBT; but when it came to putting that therapy into practice and understanding the emotional needs of a child, the mother was not able to do so.

    iv) Over the years, enormous efforts have been made by this Local Authority to see if the mother could care for any of her children with professional support. In a judgment in 2013, before the mother met this father, I said at B34: 'I have difficulty remembering a case where more support and assistance have been given to a family in an attempt to keep the children with that family.' I make similar remarks about the support and assistance that have been offered to these parents in relation to A.

    v) Her own life has been very unsettled and she has not been able, so far, to live a life that would offer a child a stable upbringing. I gave a judgment in 2013 about two of her previous children and described how her way of life had been up to that point.

    vi) Her background is one where she has now experienced so much distress and hardship that she is unable to focus on the needs of her children or take charge.

    vii) She has a history of associating with men who are violent. Although there are no reports of violence in her relationship with the father, the father accepts that his own previous relationship with Ms B was 'toxic and neither of us acted appropriately' [C-60]. The concern in this relationship is that, with a father who has difficulty controlling his emotions and a mother who carries so much distress from the past, this child's needs would not be met. When the residential assessment broke down there was an incident which I have watched on video whether the father was deeply frustrated with A and the mother, who was speaking of her own distress over the father's behaviour, could not focus on him either.

    viii) Despite the mother's undoubted love for A, the psychologist, Dr Al, concludes that she is 'unable to make any suggestions for arrangements that would keep A safe in the community. It is important to understand that this is not because of any intentional risk from the parents, or any malice, but that their emotional, psychological and sexual functioning is incompatible with the care of a vulnerable child.' The previous residential assessment of the mother and another child at the same residential assessment unit (which ended in 2017) led to that previous child also being removed from this mother. The residential unit, therefore, has a very detailed body of evidence about this mother's parenting abilities.

    ix) There is a detailed and lengthy history of the mother not being able to absorb information and guidance about how to improve her parenting and of her not being able to sustain co-operation with professional involvement – for instance, one of her children was born on a beach in Spain without medical care after the mother left this country during the pregnancy [A15].

    x) Where children have been left in the care of this mother in the past the result has been that they have shown extremely disturbed and sexualised behaviour (e.g. K and J – see e.g. A17 and the many other references within the chronology). Although it is not possible or necessary for the purposes of these proceedings to make findings about the full extent of the harm suffered by the mother's previous children (beyond what I said in the judgment in 2013 – B35, para 88) it is abundantly clear that previous children have suffered very extreme neglect when in this mother's care. In that judgment I said this [B35]: 'there is an abundance of very clear evidence, which I accept, which demonstrates way beyond a mere balance of probabilities that the children have been exposed to poor parenting, lack of emotional warmth and lack of clear and safe boundaries despite intensive help from the Local Authority. Similarly, it is clear that the children's behaviour has become difficult as a result, and both parents (and particularly the mother…) have struggled to manage or contain the children's behaviour – quite simply, how could the children's behaviour not be affected by the poor level of parenting that they received?'. The current social worker says of the mother's two oldest children that they are 'the most complex and emotionally challenged children I have worked with' [C42].

    xi) The mother keeps getting pregnant despite the many difficulties that she, her partners and her children face. She has given birth to 7 children in ten years and now is due to have another child imminently – that will mean 8 children in 11 years together with the miscarriages that she has very sadly suffered.

    xii) The combination of care offered by this mother and this father merely adds to the difficulties that each face, both as a couple and as separate individuals, in parenting A. They both intend to remain together.

  11. The main problems faced by this father are said to be these:
  12. i) He has a history of being unable to sustain the care of children [see A84]. His first child (Ka) lives with the paternal grandparents under a special guardianship order. His second child has been adopted by the father's cousin and his cousin's husband [C-139 and C107].

    ii) Although he has understanding about parenting and some recognised parenting abilities, he becomes frustrated with the demands of parenting and, when he does so, he neglects the welfare of the children in his care.

    iii) The residential assessment broke down at a time when the father was becoming increasingly frustrated with A and was saying that A would be better off in foster care. That breakdown of the assessment occurred after only a few weeks in an environment where support was immediately on hand and where both parents knew that the assessment was a short-term measure with a community based assessment to follow if all went well.

    iv) A previous residential assessment involving another child of this father (K) broke down for similar reasons – see the entry for 28th January 2015 in the chronology at A13 ('[the father] was asked to leave [X residential unit] after an incident where he was unable to manage his responses to the children and was swearing in front of them'). The father accepts that he behaved inappropriately at the end of that previous assessment – C-62. At A85 the Local Authority summarises that previous assessment in this way: 'During the course of the [previous] assessment it was reported that the father exhibited the following: struggling with self-control and ' absolute loss of self-control', requiring prompting to attend to children's needs, high levels of anger and inability to manage emotions, lack of warmth in parenting style, difficulty in accepting and engaging in assessment, finding it difficult to accept support teaching and intervention.'

    v) He is dependent on the mother as his carer as a result of his physical condition. Thus, if A remained in the care of the parents much of his care would fall on her.

    vi) When he becomes dysregulated, he expresses his frustration at A. As a result, the professional evidence suggests that it would not be safe to leave A with him and the mother in the community.

  13. The parents seek to emphasise the efforts that they have made to improve their parenting abilities and their commitment to engage in further therapeutic and support work if A is in their care. They love A deeply and would both be deeply hurt if A were not to live with them. They also raise two very particular contentions which have been presented and argued very skilfully by their advocates:
  14. i) That the residential assessment was unfair. The parents contend that they were not prepared adequately before moving to the assessment unit; they moved from being parents with supervised contact of about five hours a week to parents under constant surveillance with the full time care of A (e.g. paragraph 14 of the closing submissions of Ms Phillimore). They went to the unit in the knowledge that the Local Authority had been of the opinion from the start of the proceedings that A should be placed for adoption, a view that the guardian had also expressed in a report in August 2018 shortly before the case had been listed for an Issues Resolution Hearing. They say that the environment in which the assessment took place was so stressful as to be unfair and that a greater degree of community assessment should have taken place. In addition they suggest that the father's disabilities (he broke his back in 2010 in a motorcycle accident and suffers from a lot of back pain and, as a result, the mother receives benefits as his carer), the father's ADHD and the mother's learning limitations were not sufficiently taken into account.

    ii) That the Local Authority and guardian have not recognised sufficiently the help that is available to them from the father's parents (who care for another child of his) and other members of the father's family [C-239]. During the hearing I received a statement from the father's father ('the paternal grandfather') and heard his oral evidence. The paternal grandfather and grandmother are important figures in this family, not least because they look after A's paternal half -sister as special guardians. But both maternal and paternal families have members who live in close proximity to the parents and offer them their help and support. They do not, however, offer to care for A themselves.

  15. Law – Nature, law and common sense require that it be recognised that the best place for a child to live is with a natural parent unless proven and proportionate necessity otherwise demands. I can well understand why it is sometimes said that, since the abolition of capital punishment, the most invasive type of order that a court can make is one which removes a child permanently from his birth family in contested proceedings. Orders of that kind not only affect the people directly and currently involved, including the child and the parents, but they also have a generational effect on the family; often I receive requests from people to read the adoption files of their parents, grandparents, etc. The orders that are sought will have a permanent and irreversible effect on A for the rest of his life, which is why the Adoption and Children Act 2002 requires the court to place A's welfare throughout his life as the paramount consideration. The significance of proceedings such as this to the family members concerned is such that a judge has to take very great care to ensure that he or she has thought of every reasonable argument that impacts upon the decision that falls to be made.
  16. The parents in this case have been represented by Ms Phillimore and Ms Dixon with the highest level of professionalism and necessary tenacity. Ms Phillimore has taken the lead in cross examination and speeches and has done so with the excellence and plain speaking that typify her powerful representation of her clients. I agree with her that is simply not good enough for a judge to cut and paste from judgments when reciting the law in this demanding area. The self-directions of law must be tailored to the case concerned. Further it is not good enough to short-circuit the scrutiny that has to be given by rubber-stamping into a judgment a 'nothing else will do' test (which, of itself, is erroneous as it omits the words 'consistent with the welfare of the child' in its brevity). A judge has to show that he or she has considered very carefully the provisions and impact of the applicable law. To my mind there is profound wisdom in the judgment of Judge András Sajó when he said this in Soares de Melo v Portugal (Requête no 72850/14) while sitting as the President of the European Court of Human Rights: 'Cependant, il est important de souligner que l'intérêt supérieur de l'enfant n'est pas, en principe, opposé au droit fondamental des parents à vivre une vie familiale avec leurs enfants. La règle de l'intérêt supérieur de l'enfant ne peut être interprétée comme une règle excluant les droits fondamentaux des parents' (translated that means: 'however, it is important to underline that the superior interest of the child is not, in principle, opposed to the fundamental right of parents to live a family life with their children. The rule of the superior interest of the child cannot be interpreted as a rule excluding the fundamental rights of the parents.').
  17. The statutory scheme under our domestic law works in this way in the context of this case:
  18. i) By Section 1 (2) of The Human Rights Act 1998, the relevant Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 ('the European Convention on Human Rights') have effect within our domestic law. Central to this case are the rights embodied in Articles 6 (the right to a fair trial) and 8 (the right to respect for private and family life).

    ii) I must be satisfied that the threshold criteria in section 31 of The Children Act 1989 ('the 1989 Act') are fulfilled. That means that, at the time when protective measures were first taken in relation to A, I must be satisfied that the Local Authority has shown that A was suffering or was likely to suffer significant harm and that the harm, or likelihood of harm, was attributable to the care given to him, or likely to be given to him if the orders sought were not made, not being what it would be reasonable to expect a parent to give to him. These proceedings were started on 28th March 2018 [B48] and that date has been used as the relevant time for these purposes in the submissions that I have heard. I do not think that it makes any difference whether that date or the slightly earlier date of A's birth is used. Both Ms Phillimore and Ms Dixon acknowledged correctly that, on the facts of this case, the court was not likely to be troubled when deciding whether those criteria were fulfilled as at that time. By section 21 (2) (b) of the Adoption and Children Act 2002 ('the 2002 Act') 'the court may not make a placement order in respect of a child unless…the court is satisfied that the conditions in section 31(2) of the 1989 Act…are met.' The wording of the statute is 'significant harm' and other extra-statutory catchphrases (an example is the overused and meandering phrase 'good enough parenting') cannot be taken to qualify the statutory test. The harm must be significant enough to justify the intervention of the state and disturb the autonomy of parents to bring up their children by themselves in the way that they choose – Re MA (Care: threshold) [2010] 1 FLR 431. It is without apology that I do cut and paste from the judgment of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050: 'It follows inexorably…that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.'

    iii) The phrase 'likely to suffer significant harm' means harm that 'is a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case – Re H and R (Minors) (Child sexual abuse: Standard of proof) [1996] 1 FLR 80 HL).

    iv) If the threshold criteria are satisfied then, in the context of this case, the next statutory staging post lies in section 21(3) of the 2002 Act which states: 'the court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied…(b) that the parent's or guardian's consent should be dispensed with.' Here, both parents have parental responsibility and, therefore, they must each be recognised as A's parents for the purposes of the statutory scheme ('parent'…means a parent with parental responsibility' – section 52(6) of the 2002 Act). Neither parent consents to the making of a placement order and therefore the court has to consider whether to dispense with the consent of the mother and of the father to A being placed for adoption.

    v) By reason of section 52 (1) (b) of the 2002 Act 'the court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption….unless the court is satisfied that….the welfare of the child requires the consent to be dispensed with'.

    vi) In considering whether to dispense with the consent of the parents to the placement of A for adoption the court must apply the welfare provisions of section 1 of the 2002 Act and must also apply the jurisprudence established by Re P (Placement orders: Parental Consent) [2008] 2 FLR 625 CA and Re B-S (Adoption: Application of s 47(5)) [2014] 1 FLR 1035. I will not cut and paste from those judgments since they are now so embedded into the working practices of the Family Court that, as Ms Phillimore said, it can be assumed that everyone working in this field of law knows what they say. I do remind myself that the word 'requires' in section 52(1)(b) has a connotation of the imperative (that is, what is demanded) rather than, of course, something that is merely reasonable or desirable.

    vii) Although there are applications before me for both care and placement orders, the application for a placement order is the most invasive of family life. Therefore, the primary welfare analysis should be conducted by reference to the provisions of section 1 of the 2002 Act (which are more stringent than those under the 1989 Act). There are differences between the welfare checklists within the two Acts and the 2002 expressly emphasises that the court must consider the welfare of the child 'throughout his life'.

    viii) If a placement order is made it is very often necessary to consider making an underlying care order under the 1989 Act as well so that, amongst other reasons, if the placement order should be revoked under section 24 of the 2002 Act, for any reason, there is not an immediate vacuum in the state's governance of the life of the child concerned.

    ix) The court may attach an order for parental contact to a placement order in accordance with the provisions of section 26 of the 2002 Act.

  19. Returning to the provisions of Article 8 of the Convention, the fundamental right of these parents to care for their child as part of their family can only be excluded in so far as is:
  20. i) Necessary to protect the welfare rights and freedoms of A.

    ii) Proportionate to the proven circumstances of the case; and

    iii) Legal – in the context of this case, that means legal in accordance with the Convention compliant provisions of the 2002 and 1989 Acts.

  21. In considering Article 8 of the Convention I remind myself:
  22. i) That it is for the State to justify the necessity, proportionality and legality of its proposed intervention in the family life of others – although this is no more than obvious common sense I do cite P, C and S v United Kingdom [2002] 35 ECRR 31 in support of it. It is not for A's parents to show that the intervention is not necessary. To approach a case otherwise is not only to put the boot on the wrong foot but it is also to open the door to the sort of social engineering that rightful minds abhor.

    ii) Of the jurisprudence in Re B [2013] UKSC 13. Again, I do not intend to cut and paste from the now very well-known judgments of Lords Neuberger and Wilson and Lady Hale in that case, or the passages in Re B-S (ibid) which emphasise their importance. It is at this point that the court must recollect that the severance of A's relationship with his family through the making of the orders sought in this case must be regarded as a last resort, a step to be taken only when nothing else, compatible with A's welfare, will do.

    iii) As Ms Phillimore submitted, 'Article 8 imposes positive obligations upon States to support families to stay together; the court must consider the nature and degree of support that could be offered to the parents.' Thus, it is necessary to identify the support that could be made available to these parents first and only then conduct the holistic and balanced analysis of the options relating to his welfare.

  23. The President identified in a number of judgments the trap of falling into linear analysis. That is an analysis where, for instance, the court looks first at the care that the parents can offer a child and, having focussed on the negatives (but not the positives or the balancing of the pros and cons of other options), 'rules out' the parents and only then considers the positives and negatives of other options such as adoption. Once expressed, it is glaringly obvious that linear analysis is flawed but it did take some emphasis within judgments from the Court of Appeal to highlight that flaw. In this case there are many balancing features that must be weighed against each other within a holistic and non-linear analysis.
  24. Finally, I would wish to mention this. Cases like this are heart-breaking for everyone concerned, particularly for parents who have tried as hard as these parents to care for their much-loved son. The parents have been impeccably courteous to me and to other professionals. They both have suffered enormously through no fault of their own. Although their family rights and their status as parents are both of fundamental importance in this case, I hope that they understand that sympathy alone cannot decide a case. I have to decide this case on legal principles and evidence however much I might be able to perceive the extent of the misery that the parents have endured in the past and would face if I make the orders sought. That, I suppose, is my own personal apology to them. I take no personal pleasure at all in deciding this case.
  25. Threshold (i.e. s 31(2) of the 1989 Act) – The Local Authority has set out its contentions in relation to the satisfaction of those criteria in a document that bears the parents' responses at A99. Insofar as the document raises contested issues of fact it is, of course, for the Local Authority to prove those facts to the civil standard of proof. The document contends, in language pleaded incorrectly in the terminology of section 38(2) of the 1989 Act, that at the time of the issue of the proceedings A was likely to suffer significant harm. In the circumstances of a recently born baby who was still in hospital at that time it is not surprising that the Local Authority alleges likelihood of harm rather than actual harm. The document pleads the following bases for saying that the criteria are fulfilled:
  26. i) The parents' backgrounds and experiences as parents renders this so. Plainly, as at the time of the initiation of the proceedings, there was a real possibility of significant harm to A on that basis given the parents' inability to maintain the care of their previous children.

    ii) A's prematurity and vulnerability. As at the time of the imitation of these proceedings and in the context of the parents' own backgrounds, that second basis is also plainly made out.

    iii) The mother's past inability to care for her children consistently. That point is already absorbed within the first ground and is therefore plainly made out.

    iv) The poor parenting to which the mother's previous children were exposed. That point is also absorbed into the first point and is plainly made out, as is the fifth point (her previous children have been removed from her care).

    v) The sixth basis is that the mother had not made sufficient changes since the last proceedings. As at the time that the proceedings were commenced that was certainly the case. The mother had not begun therapy by then [F-27] and most of the other intensive work that has been done with both of the parents had also not started (although work with the 'FPS' had – referred to in the table above and at F23). The seventh pleaded basis refers to the fact that the mother had not started the recommended therapy at the time when the proceedings started; that is plainly so and, in the previous proceedings, it was rightly identified that the mother needed intense and lengthy therapy (18 months of MBT according to Dr Al) if she was to care for a child.

    vi) The eighth basis alleges that the mother's 'new relationship is with [the father] who has been a perpetrator of domestic violence.' In my opinion there is insufficient evidence to create a causal (or attributability) connection between the violence in the father's previous relationship and A's circumstances at the time under consideration and so I do not find this basis to be substantiated.

    vii) The ninth basis alleges that the parents did not accept the recommendations in the experts' reports regarding changes they needed to make to ensure that A would be safe to remain with them. I am not satisfied that this allegation is made out. On what I have heard the parents may well have accepted that they needed to make changes, the question is whether they have been able to make them. The parents have certainly engaged in a very full spectrum of work in an effort to effect changes. I accept that there was a delay in the mother accepting therapy although she soon did so – F23.

    viii) The tenth pleaded basis is that the father was unable to care for his two previous children and, at the time that the proceedings started, was unable to meet the physical and emotional care needs of A. Certainly the father was not able to care for his first two children and, on the totality of the evidence I have heard, I accept that he was not able to care for A at the time that the proceedings were started; that, of course, in no way answers the case as a whole because a lot has happened since then.

    ix) The eleventh basis is really a repetition of the tenth. It pleads the removal of the father's previous children from him and contends that, as at the time of the issue of these proceedings, the father had not effected sufficient changes to care for A. Plainly, at that stage, that basis is also made out.

    x) The twelfth basis pleads the much over-used and general remark that the parents have struggled to prioritise their children's needs over their own needs and continue to do so. I accept that, at the time of the issue of these proceedings the parents were not able to meet A's emotional or physical needs.

  27. Therefore, I do find that the threshold criteria were fulfilled as at the relevant time.
  28. Assessments – During these proceedings there have been many assessments of these parents. They include:
  29. i) An interim assessment of the parents which was written by a social worker, LM, on 9th March 2018. The sessions with the parents for the purposes of this assessment began on 6th February 2018, some 21 days before A was born and continued afterwards. Based on the sessions that she held with the parents and also her own knowledge of the parents' histories, LM recommended that an interim care order should be sought while further assessment was completed [C-24]. That assessment is now of historic interest only.

    ii) In the initial statement (the 'SWET') of the social worker, Ms S, the position of the Local Authority was stated to be: 'The Local Authority proposes that A is placed in an early permanence foster placement pending final hearing once he is well enough to be discharged. The final care plan for A is likely to be placement for adoption subject to the best interests decision of the Agency Decision Maker [C-49]….No further assessments of [the mother or the father] are proposed other than the completion of the parenting assessment currently underway. The Local Authority asks for a final hearing as soon as possible [C-52]. I accept that the Local Authority made it plain at the outset of these proceedings that it foresaw that A should be placed for adoption and said that it did not intend to carry out further assessments of the parents. However, that is not what happened. A large amount of further work was done (and paid for) by the Local Authority during the proceedings. Further there have been very extensive further assessments which the Local Authority has supported. I accept that it must have been demoralising for the parents to be faced with the Local Authority's initial stance but, given the state of things at the early stages of the proceedings, I am not remotely surprised by that stance. For reasons that will become apparent I find that the Local Authority has injected a huge amount of time, effort and money in trying to keep A together with the parents (for instance, the Local Authority supported and paid for the residential assessment).

    iii) In her parenting assessment, which was completed when A was two months old, the social worker LM said: 'Whilst there have been some changes seen, particularly the mother's abstinence from cannabis, and better engagement with services…there remain some significant concerns about the ability of the mother and father to provide safe and appropriate care for their son. With regards to the father, I have been able to see little change since the assessments were completed in 2014/15 that would provide me with any level of reassurance that the father would be able to parent successfully and safely with A. The father not only continues to deny and minimise serious concerns that led to the removal of his older children from his care but he has also applied this to the mother's history and has been unquestioning of her role in her children's removal, instead placing all blame on her previous partners. There remain concerns about the father's psychological functioning for which he is resistant to engage with any support…The mother, on the other hand, has made progress with her cannabis use and is clearly taking better care of herself, which is positive. However, this is believed to be motivated by her need to please the father…The mother has shown a clear reliance on the father and lacks confidence to undertake anything without him. She has not been able to recognise any of the concerns that professionals have in relation to the father and has not been able to apply her learning from previous relationships to her current one…. It is therefore my view that neither parent has been able to make the changes necessary in order to provide A with safe and good enough parenting both now and in is long term future, either together or separately. Both need to engage in extensive support over a prolonged period of time before there can be any confidence in them making the changes required, and this cannot be achieved in A's developmental timescales' [C-128-9]. That statement, again, was written before the parents had engaged in the work that I have set out in the table above and I do not find the social worker's conclusions remotely surprising as at that time.

    iv) On 16th July 2018 an independent social worker, JC, wrote a further parenting assessment relating to the two parents [C-132]. Her main conclusions were: 'I do not believe that at the current time the mother and the father could parent safely together or alone. This situation could change but I am not able to provide a timescale for this [C-162] …If the mother and father were to parent A now with no further intervention the risks are that he may be exposed to the emotional impact and potential physical impact of domestic violence….In addition the mother has not achieved a sense of understanding of a child's world as yet and would not be consistently emotionally available to him. The father's parenting style is likely to be punitive which is his admitted default style [C-163]….I would hope that the mother will persevere with the therapeutic course and that it will be successful to an extent that the mother is able to parent a child to a good enough standard [C-165]…I am aware of the emotional impact there has been on these parents in the removal of A from their care which is compounded by the repeated removals in the past…It is not just a matter of giving these parents the benefit of the doubt but searching for the evidence of change achieved and their commitment and motivation for the future. In this case there is some optimism but I could not, at this stage, support A's return to their care in the community [C-167]'. At that stage the mother had been working with the Local Authority initiative 'FPS' [F-23] and has also just begun to engage in therapeutic work [F-23 and F-27].

    v) On 18th July 2018, Dr Al wrote her first report in these proceedings [E-17]. It was not positive. At E-18 she said: 'In this case, there are a number of factors that cause significant concern with regard to the mother and the father's capacity to provide safe parenting and care to A and that would need to be addressed prior to them (either individually or together) resuming the full time sole care of him.'

    vi) In what was intended to be the final statement of the social worker, Ms S, dated 8th August 2018, she expressed her opposition to any further delay and the opinion that it was contrary to A's welfare for him to remain in foster care while the parents completed further therapeutic work [C-171].

    vii) In readiness for the Issues Resolution Hearing on 10th September 2018, the guardian wrote a final analysis dated 30th August 2018. In it the guardian said at E-50: 'I have considered the authority of Re BS and have reached the conclusion that the timescales involved I the mother and father completing the necessary amount of identified therapy will be too long for A to wait and with too many uncertainties to be sure that the therapy will be effective.' In her report the guardian recommended that care and placement orders should be made [E-56].

    viii) That view did not prevail, however, and the case was adjourned while the parents completed further work. That change of direction was particularly influenced by the letter dated 5th September 2018 [F-26] from Dr G, a consultant clinical psychologist working with the 'F' service that I have mentioned in the table above. In it, there is analysis of how the mother had worked in therapy provided by that service. The letter states that the mother attended all of the appointments and co-operated with the work that was done. The father joined one session with the service and co-operated with it. On the basis of the sessions that were held prior to the writing of the letter, the parents were both offered individual 'MBT' (mentalization based treatment) which is run through the organisation called the 'L Project' (as referred to in the table in paragraph 7 above).

    ix) An Issues Resolution Hearing then took place on 10th September 2018. The positions of the parties are set out at B-126. All of the parties sought further information about the parents' ability to engage in therapy and effect changes in their parenting. I remember the hearing well and the extreme hesitation expressed by the Local Authority counsel about the adjournment of the proceedings. Three days before the IRH the Local Authority had filed a position statement saying [A-63]: 'The Local Authority position remains that there is insufficient evidence of change from either parent whether alone or together and that A would be at risk of significant harm in their care. The Local Authority say that the test for adoption of 'nothing else will do' is realistically made out in this case, that A's timescales demand that decision are made about his future and that he cannot wait whilst the parents commitment to therapy and change is tested.'

    x) On 24th October 2018 there was a minuted discussion [E-65] between Dr G and Dr Al (the court expert). Dr Al expressed the view at E-67 that she was 'very uncomfortable with the plan [i.e. for therapy] as I do not believe that there are enough indicators to be helpful (let alone confident) that the parents are going to be able to make use of the therapy enough to markedly change A's experience.' Dr G was more positive about the proposed therapeutic involvement and thought that the outcome could not be predicted until a large amount of therapy had taken place [E-67].

    xi) On 21st November 2018 a member of the Local Authority Family Intervention team, Ms P, wrote a statement after working with the father. Her statement speaks in terms of guarded positivism about the father's work with her and says at C-197: 'It is my view that the father has demonstrated an ability to engage positively with an intervention through his work with me. However, this was a brief intervention and this report is written from only four sessions undertaken with the father.'

    xii) On 5th December 2018 two workers from the Local Authority Domestic Violence project (called 'NW') wrote a statement [C198] having worked with both parents. They had worked with both parents previously. Their conclusions arising from the work that they did with the parents between September and November 2018 are set out at C-206-208; they have not been involved since November 2018. They say that the parents attended all of the sessions that were offered and engaged in the work. The parents 'listened to advice, interacted in discussion and reflected on the work and acted upon advice'. They felt that it was positive that the parents were engaging in a spectrum of support services and that the mother was able to be more assertive than when they had worked with her previously [C-206 and C-201]. They felt that the parents were supportive to each other over their complex feelings about having had children removed in the past. However, the workers also felt unable to say whether the 'couple have made any sustainable change' [C-207]. The two workers said that they retained 'concerns' that a) the father needs to be able to recognise when he is becoming stressed and emotionally unregulated [C-203], b) the mother had been contacted by a previous partner by text [C-208], c) the father told them that he had been assaulted by his ex-partner recently and d) they were not able to say whether the mother can recognise that other relationships involved domestic abuse [C-208]. One of the two workers gave oral evidence and maintained the views expressed in the statement.

    xiii) The case was then further adjourned on 13th December 2018 [B-128] for more evidence to be gathered (the positions of the parties were again to seek further information about the progress of therapy in terms that were cut and pasted from the order of 10th September 2018 – B-129).

    xiv) In March 2019 there was a further discussion between Dr Al and Dr G [E-73]. Dr G's view is at E-74 ('the mother had definitely made progress in the group and I would say she has made more progress in the individual sessions, so this has really highlighted the question: can she really take that out of the room and out that into practice with her parenting and in stressful and unpredictable situations.') The outcome of the meeting was that the two psychologists recommended that a residential assessment was the correct way forward. The both felt that the parents had made considerable changes. The individual MBT sessions continued on a fortnightly basis (the parents attended separately) and there was a group session once a week; these sessions for the father ended at the end of May; Dr G will have two more sessions with the mother.

    xv) In the final report of the residential assessment unit at E-122 there is an executive summary written by the social worker (Ms C.S.) who is based there. It includes the following:

    i) The assessment concludes that the parents are not able to provide A with safe, adequate, attuned and thoughtful parenting throughout his childhood and into adulthood will require stable, predictable parenting in the future, where every day looks the same and I do not feel his parents could provide this together or individually [she explained this in her oral evidence]. Throughout the assessment, when the couple were feeling calm, they were able to meet A's day to day basic care needs and provide play and cuddles. However, over the time that the parents were at the residential unit, we saw both in turn becoming extremely distressed, unregulated and unable to mentalise about A or put into practice the progress they have made in therapy at the L Project over the past year.
    ii) Although we saw pockets of positive care sometimes lasting whole days, where A had his basic care needs met and opportunities for play and stimulation, the couple were unable to maintain this for more than a few days at a time…. The parents were not able to use their internal resources to regulate their emotions and relied on the support of one another, as well as support from the team. During periods where one parent was not feeling okay, the team were required to provide immediate ad hoc support and care for A, this would be provided on an informal basis with the team suggesting that the parents took a break or went out for a cigarette, while they cared for A.
    iii) While the parents were able to provide lovely pockets of interaction for A this was completely dependent on what was happening internally for them and I do not have any confidence that the parents would be motivated to sustain this in the community, which would need to include times when they will be in pain, very tired, or feel that their own emotional needs are being neglected. In addition to how A's needs will change in the future, I have also been acutely aware of the needs of the couples future baby who, after her birth, will place additional demands and pressures on a family which is already stretching its resources to the limit.
    iv) The parents found it difficult to ensure that A remained their priority and quickly became overwhelmed and preoccupied by their own needs. They showed no capacity to mentalise about A in these periods and often his needs came into direct competition with their own…
    v) The couple are invested in maintaining the status quo in their relationship. I would suggest that both of them are driven by the need to be the most important person in the other's life and this leaves no room for A.… The more confident, connected and successful one parent appeared, the more the other parent felt that they had failed and appeared shamed and dysregulated. In week one, this left the mother distressed, crying uncontrollably on numerous occasions and in week three, we saw the father angry, experiencing physical pain and repeatedly threatening to leave the placement.
    vi) The decision to deem the assessment complete was made after we became increasingly concerned about A's experience. After several very mixed and at times difficult weeks, we observed in the final week that the father became completely unable to manage his emotions or regulate his behaviour. I am struck with the similarities in our own observations and the conclusions drawn in the report undertaken by [the previous residential assessment unit concerning the father's previous child]. Namely that 'the father struggles with self-control and the absolute loss of control. That he had high levels of anger and an inability to manage his emotions and that he displayed a lack of warmth in his parenting style and I would suggest a very critical parenting style.' It also concludes that the father struggled to demonstrate personal self-management and impulse control; this is something that has been evident certainly over the last few weeks of the placement.
    vii) … I believe that the mother's decision to leave the unit with the father is a direct result of her life experiences, of her deep fear of being rejected and abandoned by someone that she loves and this feels intolerable to the mother.
    viii) The parents have worked incredibly hard throughout the assessment process to try and demonstrate parenting that would allow them to take A home. Despite finding it difficult to manage the pressures of living at the assessment unit and working with me and the wider assessment team, they continued to remain friendly and polite and verbally committed to working on issues I have highlighted as a concern.
    ix) It is important to note that throughout the assessment the parents had appointments elsewhere. This meant that, on two days of the week, they were out of the house for between nine and 12 hours, from between 830 to 9:30 AM until between 1730 and 1930 hrs.

    xvi) In the final report written by Dr Al following the breakdown of the residential assessment (at the unit where Dr Al is based) she gave this executive summary [E-152]:

    i) The mother's care of A essentially mirrored that of her previous child. She has the skills and knowledge to conduct basic care competently and there is no doubt that she loves A, but she is not able to be a safe harbour for him. Much of the emotional flatness noted in previous assessments continues to be present, although it is entirely recognised that the mother is at the stage of pregnancy when she reports fatigue. However, what was not known and not recognised in previous assessments is the role that sex plays in the mother's emotional regulation. This is a significant concern about the mother's functioning, particularly in the context of the history of her older children's disclosures and the historical concerns about her not protecting her children from risky others. However, in terms of timescales and prognosis for change, I am not aware that the mother has taken this issue to her therapy, either individual or in the group. It is not possible to work on an issue, to find alternative ways of coping, without airing something openly and at least partially truthfully with one's therapist. The prognosis for change is therefore sadly extremely poor.
    ii) Historical assessments have revealed significant difficulties with emotional regulation; that the father reacts to perceived loss of control and challenge from others with aggressive, controlling, harsh, critical or emotionally abusive behaviour. As a parent, there are significant concerns that the father had a harsh and punitive style of parenting, being very critical of one of his previous children and very rigid with another. This was also observed with A, and when under significant stress towards the end of the placement, he spoke as if A was a much older child, with intentions, motivations and malice.
    iii) Having considered the level of aggression and abusiveness towards other adults documented in the previous residential assessments, it is clear that there has been some progress in the father's psychological functioning. I hoped that the documents produced by this assessment unit could be shared with the clinicians at the L Project parenting group, and the information integrated into their intervention. However, despite the progress the father has made in the group to date, it is clear that he still has a very long way to go indeed before he is able to relate to a child in any safe, calm or proportionate manner. As stated above it is entirely to the father's credit that he was able to recognise this.
    iv) Both parents love A very much indeed and they have fought long and hard for the opportunity to care for him, but one of the things that struck me the most was the absence of joy. For A to continue to be cared for in such a controlling and unpredictable way, for him to have to inhibit his own natural, developmental behaviour in order to keep himself safe and to meet the needs of his parents, is a very significant concern indeed.
    v) Very sadly, given that it was not possible to mitigate the identified risks to A with a fully staffed night and day residential placement, I am unable to make any suggestions for arrangements that would keep H safe in the community. It is important to emphasise that this is not because of any intentional risk from the parents, or any malice, but that their emotional, psychological and sexual functioning is incompatible with the care of a vulnerable child.'

    xvii) In her final statement the social worker, Ms S, reviewed the material that has been filed by the date of her statement (8th May 2019) following the breakdown of the assessment at the residential unit and concluded, as before, that it is not realistic or in A's best interests for him to be placed with the parents in the community and that the only solution that is now available and consistent with A's welfare is that he should be placed for adoption.

    xviii) Shortly before the commencement of this hearing, the guardian filed her report in which she concludes at page 21: 'there has been a full exploration of the parents' capacity to care for their son safely, but despite there being some small steps, this is now not considered to be a safe option. I have considered carefully A's best interests in being brought up within his natural family where possible, but the overriding requirement of his continued safety and well-being throughout his childhood means I am unable to support his return to his parents' care. I endorse the local authority final care plan. I therefore support the local authority's application for a care and placement order… And I believe that the court should dispense with the parents' consent on the grounds that capital A's welfare requires it.'

  30. Evidence – I have heard a large amount of oral evidence in this case. Before referring to some it I want to deal, head-on, with the two contentions that have been advanced so skilfully by Ms Phillimore and Ms Dixon. That is: i) The residential assessment was unfair and ii) There has not been a sufficient assessment of the support that could be offered to the parents in the community, in particular from the extended family (with the paternal grandparents being in poll position as proposed supporters of the parents).
  31. The residential assessment – was it unfair? Ms Phillimore submitted:
  32. In order to deal with this point, I do think that it is necessary to look at the context in which the residential assessment was ordered and that leads me to observe:
  33. i) The assessment was ordered to start at a time when A was already over a year old and had been in interim foster care or hospital all of his life. The mother was pregnant and soon to give birth (her children are often born prematurely). Therefore, if there was to be an assessment at that stage it could not be a long and drawn out one. A cannot remain with his current foster carers but has been with them now for over a year. It is tough but true that progress in making long-term arrangements for him must now be made.

    ii) Given the histories of these parents and the inevitable uncertainty about whether the changes that they had made would render them able to care for A, any assessment had to be very carefully arranged and had to take place in an environment where A would be safe. Having made the decision to order this assessment myself I can say with absolutely certainty that the decision to order it at all was a balanced one. The adjournment of the case in September for further work to be done with these parents was also very finely balanced.

    iii) The decision to order the residential assessment on 7th March 2019 [B137] and the arrangements relating to it were very carefully considered and followed a meeting between Dr Al and Dr G that had taken place on 1st March 2019. All parties accepted then that, in the circumstances that arose and given the facts of this case, the only assessment that fell to be considered was a residential assessment. I realise that the parents felt that they were left in a position where they could only agree to the residential assessment (that they had two options – take it or leave it) however I do not accept that there were any other realistic options at the time. I do not consider that there would have been any rational basis for ordering an assessment in the community as at that time. If it had been ordered, it would have failed.

    iv) I accept that, with the benefit of hindsight and in the knowledge that the mother has not yet given birth to her next child at the time that I am writing this, it might have been better if there had been a build-up of contact over a very short period (certainly no more than a month) to help the parents make the adjustment to the increase in care of A but I do not accept that that would have made any difference at all. The problems that were revealed very quickly in the residential assessment would have arisen in the same way once the parents were left with the responsibility of caring for A. I have no doubt at all about that, I am afraid.

    v) I do not accept the image that this assessment amounted to little more than putting the parents into a goldfish bowl of observation without support. The parents' difficulties and the father's disabilities were very fully taken into account but, bottom line, there had to be an assessment of how they would care for A with support. And support there was, in abundance, at the unit. The parents spent two days a week away from the unit while they engaged in the therapeutic and other work in their home area. Their families did visit them while they were in the unit and they were in regular phone contact with them. The staff on the unit were on hand, speedily and supportively, to help the parents when problems occurred or when they needed time out.

    vi) Although, of course, any residential assessment is stressful, this was an assessment that was for only a short period and had, at the intended end of it, a plan for further assessment in the community if things went well. The parents knew that was the plan since it was expressed clearly on the face of the order that I made on 7th March 2019 [B-135] and was debated in court. Therefore, the stress was short-lived and there was a pot of gold at the end of the rainbow – the prospect of them being able to care for A as they desperately wish to do.

    vii) I fully accept that the parents entered this residential assessment in the knowledge that the Local Authority and the guardian had been of the openly expressed opinion that A should be placed for adoption when preparing for the hearing on 10th September 2018 [B-125]. However, since then, the Local Authority and the guardian have been committed to taking genuine and serious account of the progress that the parents made through the work that the Local Authority itself had made available to them. I do not accept that this Local Authority has set the parents up to fail or entered into the arrangements for A other than in a full-hearted and open manner. This Local Authority has arranged for a truly exceptional level of support and work to be available to these parents and, when the parents engaged in it, the Local Authority has listened to what other professionals have said. I do not accept that the Local Authority can be held in any way responsible for the difficulties that have occurred. I have been very impressed by the social work that has gone into this case and the commitment of the Local Authority to trying to keep A within his birth family – where he belongs, if possible and consistent with his welfare.

    viii) I consider that the key issue that needed to be assessed was this: 'These parents having made considerable progress in the work that they had done to improve their parenting at a time when A was in interim foster care, can they now put that work into practice and parent A safely?' Regrettably, the residential assessment provided an answer to that very quickly, albeit that it is very painful for the parents to hear. The answer is: 'No, they cannot.'

    ix) In evaluating the residential assessment, I have borne very strongly in mind that in the calm atmosphere of the court, a video recording of a crying baby, an exasperated and swearing father and a distressed mother may all have a disproportionate and over-dramatic impact. I think that every honest parent will be able to recognise just how demanding and frustrating it can be when trying to dress a wriggling and screaming baby or feeding a baby who clenches his lips closed or dealing with personal issues in a relationship when very tired, under observation and (in this father's case) in pain. I have really reflected on that heavily and have thought very carefully about how tough parenting can be – it is probably the most difficult job that any of us does and there are no shaded corners in parenting. However, what I have seen and observed is not that everyday phenomenon of parents grappling with the difficult demands of parenting. I do think that the assessment revealed: a) the continuation of the problems that led to the removal of previous children from the parents, despite the changed dynamics of their individual lives as a result of their relationship; b) the unfenced frustration and emotional difficulties of the father who, when faced with the everyday frustrations of caring for a young child, withdrew (the mother herself observed to the father: 'yesterday you left him, the day before you left him. You keep leaving him and you did it again today. A does not feel safe' after the father had said: 'I'm not cut out for it. I'm no good. I've tried…but the kid don't want me anymore…[etc]' – E-139); c) the inability of the mother to step in and care for A when she needed to; d) the inability of the parents to put into effect the work that they had done – for instance, despite the lengthy mentalisation based therapy that they had undergone, to identify and focus on A's emotional and physical well-being; e) the inability of the parents to hold things together even though they knew that the assessment period was short and there was a very positive plan in place if things went well.

  34. Therefore, despite the skill with which the arguments were advanced by Ms Phillimore and Ms Dixon, I reject the suggestion that the residential assessment was unfair. It was not unfair at all. It is just that the outcome is very sad.
  35. Lack of assessment of the family support and the need for further family assessment – As I stated during the hearing, this was also an issue that needed to be considered very carefully. It is no use trying to decide upon the paramount interests of a child within the family unless you have considered the circumstances in which the child might then be living. Families do pull together in times of adversity and a family package of support can be very effective (as many parents would immediately recognise). The father's two previous children are cared for by other family members and, even though there is no offer of similar care for A, the families do offer their support and proven abilities in relation to the parents' proposed care of him. Further, those two other children have important and Convention based rights and interests in the outcome of this case and, if A remains in his natural family, he will be able to grow up in the knowledge and society of at least the child who lives with the paternal grandparents (as I understand it there is a breakdown in the relationship between the father and the family members caring for his other child). Therefore, the prospect of A being cared for by the parents with family support is very important from a legal, familial and social perspective.
  36. Ms Phillimore submitted:
  37. The paternal grandparents are decent, family orientated and committed people. They have supported their son and other members of their family in way that I admire deeply. They have stepped in to look after the father's previous child and do so lovingly and with devotion. They have had to find their own support for that child (I accept the grandfather's evidence that he and his wife have had to push to get the help that the child needs and that they have done so).
  38. However, I do accept:
  39. i) The involvement of the parents' families has been known to everyone involved throughout these proceedings. It is not a new feature of the case that has sprung up for the first time in evidence. I do not accept that the assessments that have been conducted ignored the presence of the parents' supportive families.

    ii) That involvement was also a feature for both parents in relation to previous children.

    iii) Sadly, the offer that is now made by the families to support the parents as and when needed does not get anywhere near the level of intervention that would be necessary if A were to be in the parent's care. I say that for these reasons:

    a) When the parents' care of A broke down at the residential unit there was a need for immediate intervention. I consider that it is inevitable that that sort of scene would occur within a short period if A were to be in their care in the community. The grandfather's offer of living with the parents for a few weeks (e.g. six) and, therefore being on hand when called upon, is laudable and understandable but would not get anywhere near being sufficiently protective of A. If a scene like that which I viewed occurred when A was at home, he would be unsafe immediately. Having the grandfather on call, even though living locally, would not be nearly enough.
    b) The supposition is that the grandparents or other responsible family members would be on call constantly. I do not think that is realistic on the evidence that I have heard. The grandparents do spend time in Cornwall, they have their own family commitments (not least to Ka) and have their own daily lives to lead. To suggest that they could be available to deal with all of the crises that would arise (with certainty, I find) is unrealistic and would leave A exposed to very obvious danger and neglect.

    c) A further supposition is that the parents would call upon family members for help whenever there was a crisis and notwithstanding any conflict between themselves that might arise at home. I have seen how quickly the parents can fall into conflict over the care of A (e.g. the incident when the residential assessment broke down) and I have no confidence that the parents would wish to highlight or acknowledge that type of conflict by calling on the help of others if A were with them at home.

    d) The availability of family members simply does not get over the difficulties in the parenting that the parents are able to offer. The plan is that the mother would be responsible for most of the care of A with the father providing as much help as possible bearing in mind his disability and the physical pain from which he suffers. The mother described the father spending much of his time in his 'man-cave' or shed when he is at home and having to be helped to dress, get out of the bath, etc. To all the emotional difficulties that are so strongly revealed in the assessments must be the day to day difficulties that would arise at home between these two parents. The planned involvement of the extended family does not get anywhere near surmounting those difficulties.

    iv) Although, initially, I was not attracted by the argument of the guardian, I do accept that the first thing that needed to be done, in context, was to see how the parents fared in the residential assessment. The plan then was for there to be a phased transition into the community if all went well and a community-based assessment which would, no doubt, have looked at the involvement of the extended families. Regrettably, the case did not get that far because it fell at the first fence – that is, at the residential assessment.

  40. Therefore, I do not accept the arguments that there has been an inadequate consideration of the available support that would have been available to these parents from their families. I do not think that there is a need for any further family assessment. There are no gaps in the evidence. Regrettably, I agree with the clear conclusion of the residential assessment that no level of support would make A safe in the parents' care (see Dr Al's report). The issue of support has been very thoroughly considered. I accept the evidence of Dr Al and of the social worker from the assessment unit.
  41. Evidence of Ms C.S. (residential assessment unit social worker) – She accepted that, prior to the start of the assessment, it appears that the parents had made significant changes and had done everything that has been asked of them. Before they came to the unit the parents had been having regular contact several times a week about which there was positive feedback. She accepted that caring for a child with the type of monitoring put in place in the unit is very stressful, particularly when, before they came to the unit, the parents had only visiting contact with A. She accepted that, for the parents, this amounted to a considerable shift in the role that they were playing with A – from parents having contact to full-time carers under intense observation. She accepted that there were many positives [to which she refers at e.g. E-87]. However, she remained firmly of the opinion expressed in her report that A could not remain in the care of the parents. She said that it was not the final event that determined her opinion – week three was a good week but the first two weeks before that had not been. Then, at the start of the fourth week, there was the very marked deterioration that led to the breakdown of the placement - her account of that breakdown is at E-92 and is not challenged on its facts. The account, which runs to E-95 then goes on to express a very high level of frustration and distress shown by both parents; if a scene like this were to have occurred when A was being cared for by the parents at home he would not have been safe in my very clear opinion.
  42. Evidence of the social worker team manager – She gave evidence as the social worker, Ms S, was unwell. She said that contact (two hours twice a week) has been mostly positive. She said that she was aware that the parents were saying that the paternal grandparents would support them and that she did not think that support from them would be sufficient for the parents to be able to care for A. The speed with which the father's frustration blows is such that involvement by the paternal grandparents could not remedy the difficulties or be sufficiently protective for A. The parents had a lot of help at the assessment unit and, even then, were not able to care for A. The staff at the assessment unit were not intrusive, in her experience. She was present at the unit when the placement finally broke down. She accepted that the paternal grandparents have been supportive of the father and that they look after the father's previous child well. She accepted that there was not any exploration in depth of the support that the paternal grandparents might give although it was known that the grandparents offered their support to the parents if A were to be placed with them.
  43. The video – I watched the video recordings of the parents caring for A as part of the hearing. I saw:
  44. i) The video taken at 18.27-18.33 on 7th April - I watched the father changing A. The family support worker is with him. The father is struggling with the Babygro. The baby is screaming. The father is saying repeatedly: 'A, stay still'. He says to the worker: 'just take him…he kicks up every time I am changing him'. The worker tries to calm the father. The father is clearly very frustrated. The father says that he is seriously contemplating going out and not coming back. The father says that next time he will let A smash his head against the door. The worker says that he is behaving roughly. He is advised to be a little bit more gentle.

    ii) The video taken between 06.47-06.52 on 8th April – This shows the father giving A breakfast. A is in a high-chair. The same worker is with him. The father says; 'hands down. Hands down. Here we go again…he'll throw his porridge. He kicks up a fuss every time…this is why I always say he is much better when mummy feeds him….' A won't feed or drink. The father says: 'I'm done for the day…you kicking off like this…I don't think I am cut out to be a parent…he would be better off in foster care, if I am honest'. The father leaves and the worker takes A out of the high chair.

    iii) The video taken from 06.52-07.12 on 8th April 2019 - The shows the father in the bedroom with the mother. He says 'I'm fucking done with him. …I am better off going home and he is better off going into foster care.' The mother tells him to go out and have fag. The father then expresses his frustration and says that he is in pain (from his back). He says repeatedly that A is better off going into foster care. The father says he is wasting his time and is going out for a bit. The mother is cross with him and makes this plain in her discussion with the father. The father says; 'not one of my kids will do as I want them to be. Make me look like a shit parent. I am a shit parent and I'm done with trying.' The father then says that he is not cut out for it and 'I'm no good.' He says: 'I've tried but the kid don't want me any more…he just wants you.' The mother says that he is treating A like a piece of shit and is just walking out on them again. The father says that he is not getting anywhere with A, that he has been 'calm as a cucumber' but A won't do it for him. He asks; what should I do? Ram it down his fucking throat?' The mother says that the father keeps leaving A again and again. The mother says that she can't cope with it – 'you just keep disappearing, disappearing, all the time. I'm afraid that you will keep leaving us.' The mother is then in tears and the father asks: 'what I am supposed to fucking do if he won't feed.' The parents then argue about whether A should be given sugary drinks with the father saying that she should not. A is not in the room with them; he is with the staff. The father puts on his shoes and says 'get in you fucking cunt' (meaning that his foot should get in the shoe); he suggests that he can barely walk due to the pain in his back. He then walks, uncomfortably, out of the room. The father then returns. The scene then continues as described at E140-141.

  45. Evidence of Dr Al – She said that she had seen all of the documentary evidence and that her opinion remained as stated in her report. She said that one of the sadness aspects of this case is that the mother has such a strong desire to do the right thing by her children. Her ability to care for her previous child (T) was also assessed in a lengthy residential assessment at this unit. That assessment showed that the mother had some understanding about looking after T but the mother's flatness was really worrying. At the end of that assessment the recommendation was that the mother would need some lengthy psychotherapeutic work if she were to care for a child. When Dr Al saw the mother in relation to A, there was some sign of less flatness but Dr Al also wanted to take into account the fact that the mother was in a new relationship, with this father. Further, by the time of the assessment the parents both appeared to have made significant changes as a result of the work that they had done. However, the assessment became firefighting and crisis management very quickly. Her primary concern was that the father became emotionally dysregulated by the end of the assessment. The assessment showed how little awareness the parents had of their own emotional state, the very point that MBT was supposed to rectify. She was really surprised that the parents could not even access the language that went with their learning and therapy. There was no indication that any of the therapy had been absorbed into how the parents spoke or behaved and this became very quickly revealed in the assessment. She said that a community-based assessment involving an increase in contact and the support suggested in the leaflet at C247 would not have been sufficient since it would not have shown whether the parents had made the changes that they needed to make. The residential assessment showed that the functioning of the parents was much more complex than was known and a community assessment would never have shown that. The expectations on the parents were made very clear when the parents came in.
  46. Evidence of Dr G (psychologist and therapist) – She said that the therapy with the mother started in October and that group work started in November. She said that it is always very difficult to make the leap from assessing how parents are coping in therapy to predicting how they would cope with the actual child at home. Ideally, there would have been an increase in contact before the parents started at the unit but both parents spoke very warmly about A and were optimistic about their ability to care for him. In the group there was evidence of the parents being able to 'mentalise' (understand the emotions of others and themselves) so a residential assessment seemed the most natural and therapeutically valid way forward. There were discussions about the parents going to the residential unit during the group sessions and, although they were naturally anxious about the degree of scrutiny they would be under, they saw the assessment as a chance to act as a family with A.
  47. The paternal grandfather's evidence - This was given in terms that were naturally supportive of the parents. He said that he would have wished to have attended a family group conference with the Local Authority and other family members and, with hindsight, I think that it would have been better if the Local Authority had arranged such a conference if only to explain to the family at large why a community based assessment would not be sufficient and a residential assessment was being organised. The absence of such a conference has left the family feeling shut out. The grandfather spoke of the regular contact that the father has with the child who is living in the grandparents' home and the close family relationships. He said that, as far as he knew, the residential assessment had been going well and, on the morning that it broke down, his advice to the father had been to keep going with it. He and the father spoke to each other frequently by telephone during the assessment.
  48. The father's evidence - He said that he accepts that there is still room for improvement in relation to his parenting and that he conducted himself entirely inappropriately in relation to his previous children. He said that, if they had been at home, the parents would have been under less pressure – they felt that they had four weeks and the message was 'you have to get this right.' Given his ADHD he needs to know that he is safe and supported – then he is fine, and he can continue; therefore, he found the pressure of the assessment difficult to endure. He said that he was critical of his own parenting at the time of the breakdown of the assessment and wishes that he had a time machine to go back to before it happened. He was feeling overwhelmed at the time. He was referred to other occasions when he was plainly not able to concentrate on parenting A and became frustrated with him [e.g. E-135, E-105 and E-117]. He said that there were lots of arguments at the unit between himself and the mother which sometimes took place in front of A.
  49. As the father's evidence went on, I have to say that I did notice that he was very fluent when speaking about his own needs and his own actions. I am afraid that he came across as having very little perception of the impact of his behaviour on others or of his responsibilities to A (i.e. the very thing that mentalisation therapy is intended to address). He said that he does not feel safe and secure if he is not properly contained; if the mother, he said, is not there to regulate his emotions, he would ring his dad. He also has very supportive grandparents and a sister. When asked what went wrong at the unit, he said that his anxieties flared up along with his self-limiting beliefs.
  50. The mother's evidence – She emphasised how stressful she had found the residential assessment and how different she thought that things would be if she and the father cared for A at home. Her level of distress and the wretchedness of her position were all too apparent when she gave evidence. Unsurprisingly, she spoke of the fears that she has for her unborn baby.
  51. The guardian's evidence –The guardian listened to all of the oral evidence. She said that nothing that she had heard had caused her to change her opinion. She said that she found the evidence of Dr Al particularly helpful. At the end of the day the guardian did not think that any level of support would be sufficient to allow the parents to care for A. She said that the theme of the support from the father's family has always run through this case and has been known to those working with the parents, since the father's family are very much part of his daily life. However, she thought that the support from the extended families would not be sufficient to keep A safe. Despite the very great amount of help that they have had, the parents have not been able to put into practice what they have learnt.
  52. Closing speeches – I heard very effective speeches from each of the four advocates; I have already referred to most of the points that arose from them. Ms Bond rightly submitted that the Local Authority has arranged for these parents to have an exceptional level of support and that it was entirely right for the residential assessment to have been ordered. As to the support that the father's family might offer, she submitted that it has been clear all along that the paternal grandparents were not offering themselves as carers of A but were heavily involved in the parents' daily lives and offering their support [e.g. A - PB-136]. She submitted that the underlying difficulties are clear. Although the parents did make significant advances in therapy and other work in the absence of A, as soon as they had to put that work into context of caring for A, the same difficulties became clear.
  53. I have already referred to Ms Phillimore's excellent closing speech and have considered, head-on, the two main points that she raised.
  54. Ms Dixon adopted much Ms Phillimore's submissions and also asked: Is there really no other course consistent with the welfare of A, save for that suggested by the Local Authority? She stressed the considerable changes that the mother had made – the mother does not use drugs or alcohol now, she does not have an abusive relationship with the father, she has taken therapy and has accepted other work. It is not surprising that the mother has taken time to get going with therapy and other work, she submitted. The mother is only in her late 20's, Ms Dixon emphasised and submitted that, once the mother has been able to place confidence in the people who work for her, she has engaged. Ms Dixon submitted that the court should consider ordering a further period of assessment in less stressful circumstances. There has not been consideration of a joined-up thinking package of support involving the family and the state and voluntary agencies, she contended.
  55. On behalf of the guardian Ms Lippman took me through the history of the proceedings and emphasised just how much support had been given to the parents. She said that the possibility of an increase of contact before the residential assessment was discussed during the meeting between Dr Al and Dr G on 1st March 2019 but the emphasis from everyone then was on getting the residential assessment underway. She submitted that there was never any doubt that the grandparents would be there to support the parents; however, she said, 'we never got to the stage where that became a realistic prospect. We know the risks now. A would not be safe in the care of the parents and the grandparents could not mitigate that risk.'
  56. Options - there are only three options that have been suggested. First, that the court should return A to the parents immediately on the basis of continuing support from the extended families and from professionals. Second, that the case should be further adjourned while there is a community-based assessment, taking into account the support that is available from those sources. Third, adoption.
  57. No arguments have been advanced that fostering would provide a satisfactory long-term solution for A, for very good reason. A is young and, if he is to be in long-term alternative care, needs the stability and security of adoption. He has the disadvantages that I have mentioned and needs that additional security and permanence that only adoption could give in those circumstances. The parents would never accept that A should be cared for by others and would find it very difficult to rationalise the demands of parents seeing their child in care from time to time.
  58. The first option (immediate return home) is very easily discounted on the basis of the case as I have already explained it to be. An immediate return home to the parents without further community assessment would be utterly irresponsible and, I have no doubt, would be highly likely to breakdown within a matter of a few weeks at most, just as the residential assessment did.
  59. A brief period of adjournment for there to be a community based assessment is sought on the basis that there has not been adequate assessment of the parents and the family support that is available, the residential assessment did not provide an adequate or fair assessment of the parents' ability to care for A and that there are gaps in the evidence. Further, that during the adjournment there could be arrangements put in place for the full package of support to be identified and implemented. The parents' confidence could be built up as carers of A which, it is said, would help them prepare for A's care in a way that did not happen before the residential assessment. It is also suggested that, if there were to be such a community based assessment there is at least a possibility that it might lead to A growing up within his natural family; so important is that prospect to his long-term welfare that the delay would be proportionate and appropriate, it is said.
  60. Against that second option are all the findings that I have already made about the clarity arising from the evidence that has been given and the reality that there are no gaps at all within it. An adjournment would serve no purpose because it is crystal clear now that the parents would not be able to care for A even with the fullest package of support from professionals and the families. An adjournment would just prolong the agony for these parents and there is no realistic prospect whatsoever that it would lead to a position where they might be able to return the care of A.
  61. Adoption has all the disadvantages of removing A from his natural family. He has a large family all of whose members want to be involved his care and would love him dearly; therefore, adoption would take him away from that. He would also lose the contact that he would otherwise have with at least one of his half siblings (i.e. the child living with the paternal grandparents). Adoption has long-term consequences and, as A gets older, he will realise that he is not being cared for by his natural family; that may affect his emotional well-being both as a child and as an adult. It may take some time to find the right adopters for him, given his own difficulties.
  62. However, adoption would mean that he was being brought up by a committed and carefully selected carer (or carers) who would provide him permanence, certainty and a quality of care that the parents simply cannot offer him. Most importantly, he would be safe and would not be neglected.
  63. Welfare checklist analysis - In my opinion the evidence demonstrates in the clearest possible terms that, very sadly, these parents could not meet A's needs. It only took a moderate amount of pressure or strain, of the type that occurs with every child, for the parents to be overcome and unable to focus on what A needs despite the level of support that was available in the residential unit and despite the parents knowing that the assessment was of short duration. The main gap in their parenting would be in relation to A's emotional well-being but, in the type of scene that occurred during the residential assessment, they are also unable to meet A's physical needs and withdraw from parenting him. I think that there is no need for any further assessment to conclude that, whatever family and professional support was offered, any attempt at placing A with the parents would break down within a matter of weeks.
  64. If A becomes an adopted child, he will acquire all the advantages of certainty and permanence. But, above all else, he will be safe, and his welfare will not be neglected. As an adopted child he will lose his relationship with his parents, his half-sibling and the rest of his natural family. If he were not to be an adopted child and were to live with his parents, he would be neglected and unsafe. Further, any arrangement by which he lived with his parents would breakdown very quickly.
  65. A is now of an age where his future must be decided. If a short adjournment might lead to him being placed with his parents, I would order that adjournment but there is no realistic prospect of that, I am afraid. Every reasonable step has been taken to try to equip the parents to care for him and more delay whilst further efforts were made to do so would be unrealistic, lengthy and contrary to A's welfare now. If all of the effort and resources that have gone into attempting to equip the parents to care for A have not resulted in them being able to do so now, it is highly unlikely that any further efforts will do so, at very least without a significant delay. A cannot remain in interim foster care indefinitely. In the language of the welfare checklist in section 1(3) (c) of the welfare checklist in the 1989 Act, a change of circumstance whereby he became an adopted child would now be proportionate to the proven circumstances of this case, necessary for the protection of his welfare rights and in his paramount interests.
  66. If there were to be further assessment of the parents' ability to care for A there would be no benefit to A since there is an abundance of evidence to show what would happen. If he were to return to the care of his parents, he would suffer the harm that I have identified - his physical and emotional welfare would be neglected and he would not be safe.
  67. A's relationship with his parents is important to him. He has been seeing them regularly and has now lived with them for nearly four weeks during the residential assessment. To continue to allow the relationship to develop through further assessment only to face the inevitability of separating A from the parents at a later stage would cause more damage to his emotional wellbeing. A has an important relationship with his half-sibling and the rest of his natural family but that existing relationship has to be trumped by the demands of his safety, physical well-being and emotional well-being throughout his life. There would be a very strong probability that the relationship between A and all his family would not continue if a further assessment were to be ordered because it would break down very quickly. In the language of section 1(3)(f) of the 1989 Act, the parents do not have the necessary capability to care for him.
  68. Conclusion - In those circumstances and with enormous regret, I have to conclude that A's welfare requires the parents' consent to A being placed for adoption to be dispensed with. Nothing short of adoption is consistent with his welfare. Care and placement orders are necessary for the protection of A's welfare rights and those orders are the only proportionate response to the proven circumstances of this case. Therefore, I make care and placement orders in relation to him.
  69. I accept that the Local Authority is genuine in its commitment to try to find adopters who will agree to the parents having direct contact with A once a year. However, I also agree with the guardian and with the Local Authority that orders to that effect should not be made. The most important thing of all, now, is for A to find the adoptive home that he needs.
  70. Finally – This case is one of the clearest examples that I have ever had of the need for the Pause Project. Although I recognise the dedication and research that has gone into the many supportive measures that have been provided for these parents, I think that it is such a shame that the mother and father did not both pause in the cycle of having children and being involved in public law litigation, while they sorted out some of their problems. They are both only in their late 20's and, if they had committed themselves to such a pause, it would have saved them the heartache of these proceedings which come so swiftly after the mother's last child was removed from her (and that last removal followed swiftly on the heels of previous litigation involving previous children). The pain of proceedings such as this for vulnerable parents like this is immense. The social, familial and financial cost of these proceedings is huge. The outcome of these proceedings is deeply regrettable.
  71. I realise that this judgment will have an inevitable impact on the planning that goes into the arrangements for the baby to which the mother is due to give birth in the near future. I would strongly recommend that a Family Group Conference is held in the very near future involving the Local Authority, the parents, the guardian (if possible) and such of the extended family members who might want to offer themselves as carers of the baby. I give leave for the Local Authority to show this judgment to any such members of the extended family. The planning for the baby should be done openly and thoroughly and should not take place as part of crisis management after the birth; I am sure that the Local Authority has this well in mind already.
  72. A copy of this judgment should also be sent to Dr Al, Ms C.S (the social worker at the residential unit) and Dr G for their information. I am grateful to them for their skilled input.
  73. HHJ Stephen Wildblood QC

    11th June 2019.

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