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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Lincolnshire County Council v M & Ors [2018] EWHC 3279 (Fam) (01 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/3279.html Cite as: [2018] EWHC 3279 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Lincolnshire County Council |
Applicant |
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- and - |
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M - and - F - and - AB (Through her Children's Guardian, Katya Mitchell) |
1st Respondent 2nd Respondent 3rd Respondent |
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Anne Williams (instructed by Ringrose Law) for the 1st Respondent
Steven Ashworth (instructed by Sills & Betteridge Solicitors) for the 2nd Respondent
Alison Hunt (instructed by Cafcass) for the 3rd Respondent
Hearing dates: 29th October - 1st November 2018
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Crown Copyright ©
Mr Justice Williams :
Introduction
Background
Litigation history
The issues and the parties' positions
PREVIOUS FINDINGS MADE AGAINST THE FIRST AND SECOND RESPONDENTS
1. The First Respondent was the Respondent in public law proceedings in Peterborough in 2015 – 2016, case number PE15C01318 in respect of her 5 children ("The G children"). The First Respondent accepted that the threshold was satisfied for the purposes of s31 CA1989 on the following basis
(a) That the Second Respondent has been convicted of the offences as per his PNC as recorded
(b) That the Second Respondent poses a risk of significant harm to the children
(c) That the First Respondent put the children at risk of significant harm by continuing her relationship with the Second Respondent until 6th May 2016 (the date she says they separated)
(d) That the First Respondent has prioritised the Second Respondent over the children
(e) That the children reported to professionals that they are scared of the Second Respondent
(f) That the First Respondent should not have left a named 14 year old in charge of children on a night in November 2015 at 11.30pm
(g) That the children were the subject of Child Protection Plans since October 2014 under the category of neglect
(h) That the First Respondent breached a written agreement in November 2015 and allowed the Second Respondent contact with the children after he had been arrested for the rape of a 14 year old girl.
Mother's response: this is accepted
Father's response: he does not accept all of the findings made by the court but accepts that they have previously been made.
2. It is further recorded in the order of 11th May 2016 that the First Respondent further accepted and confirmed that
(a) She had separately permanently from the Second Respondent
(b) She accepted that the Second Respondent poses a risk of significant harm to the children
(c) She put the children at risk of significant harm by continuing her relationship with the Second Respondent
(d) The threshold criteria was passed
(e) She did not want the children to have any contact with the Second Respondent
(f) She did not oppose the making of care orders.
Mother's response: this is accepted
Father's response: he does not accept all of the findings made by the court but accepts that they have previously been made.
3. The First and Second Respondents are the parents of CD born 12th August 2016. CD was made the subject of a care and placement order on 21st July 2017, case number LV16C02520. The final drawn threshold dated 24th February 2017 (which incorporated an agreed threshold document dated 7th February and the findings of HHJ Parker following a fact finding hearing on 7th February 2017) states as follows
(a) The First Respondent has not been able to demonstrate that she is able to prioritise the safety of her 5 older children against risks from the Second Respondent. They are subject to care orders.
(b) The Second Respondent has a history of domestic abuse, mental health issues and a long criminal history. He has 4 other children from previous relationships; he is not allowed to have contact with 3 of those children due to concerns around domestic abuse and issues with his mental health. He is considered a high risk to adults, namely partners, and a medium risk to children by Probation.
(c) The G children reported domestic violence between the First and Second Respondents
(d) The Second Respondent poses a risk of physical and emotional harm to CD and fails to recognise this. The Second Respondent does not accept that there has been any domestic violence in his relationship with the First Respondent
(e) Both Respondents have deceived both professionals and the court throughout these proceedings by remaining in a relationship despite advising that they had separated before proceedings commenced.
(f) The First Respondent's dishonesty and disguised compliance had negatively impacted upon the assessments of her which recommended that CD should be rehabilitated back into her care
(g) Findings were made by HHJ Parker on 7th February 2017 which confirmed that on the balance of probabilities the parents "have remained in a relationship during the proceedings and have concealed this fact from the Local Authority"
(h) The Second Respondent has consistently fabricated information throughout these proceedings and has demonstrated he is unable to work openly and honestly with the Local Authority to safeguard CD
(i) Despite there being a s34(4) order in place, the First Respondent has permitted the Second Respondent to have contact with the child during her own unsupervised contact sessions. The First Respondent has therefore put CD at risk of physical and emotional harm.
(j) The Respondents have not evidenced any change within these proceedings that would ensure CD would be safeguarded if he was returned to their care.
(k) The First Respondent has prioritised her relationship with the Second Respondent above the needs and safety of CD.
Mother's response: this is accepted
Father's response: he does not accept all of the findings made by the court but accepts that they have previously been made.
4. HHJ Parker sitting in the Liverpool Family Court made further findings against the First and Second Respondents on 21st July 2017 as follows
(a) As at the time of the hearing the First and Second Respondents are still in a relationship and the attempts each made to suggest the contrary are dishonest.
(b) The First and Second Respondents are engaged in an abusive relationship. They have a symbiotic relationship. The Second Respondent needs to feel needed and in control, particularly in relationships. The First Respondent has an unquestionable dependency on the Second Respondent
(c) That the First Respondent to get out of a moving car driven by the Second Respondent on the M6 motorway was a deeply troubling and sinister event and clear evidence of the deeply damaging relationship they have with each other.
(d) The First Respondent could not protect CD from the risks posed by the Second Respondent
(e) The First Respondent did not comply with drug testing; the court draws the inference that she has a serious and substantial cocaine habit
(f) The Second Respondent has a substantial cocaine habit.
(g) The Second Respondent's account for his conviction of his nephew was not accepted; this being inconsistent with his sister's account and probation report and the Second Respondent did not tell the truth about this.
(h) The Second Respondent's "explosion" in the court room was a clear example of what a partner or child might be exposed to if permitted and demonstrated an intimidating aggression, complete lack of anger management, loss of control and unpredictability demonstrated long standing deep seated issues that require more than a BBR course to resolve.
Mother's response: this is accepted
Father's response: he does not accept all of the findings made by the court but accepts that they have previously been made.
5. None of the findings conceded or made against the First and/or Second Respondents have been the subject of appeal.
Mother's response: accepted although the first respondent did make an application to the High Court in August 2017 to appeal the decision made in relation to the proceedings concerning CD. The application was sent to the court, but the first respondent was unable to fund the court fee and therefore did not proceed with the appeal.
Fathers Response: The Second Respondent does not accept the findings made previously by the Court are correct but accepts that they have previously been made.
AB
6. The First and Second Respondents failed to co-operate or engage with the Local Authority once AB was placed pre-birth on the Child Protection Register on 16th November 2017. Knowing that the Local Authority had resolved to issue care proceedings upon AB's birth, the Respondents left the jurisdiction without informing the Local Authority and with the intention to avoid the Local Authority's safeguarding interventions. Whilst the First Respondent notified the Local Authority by a telephone call on 24th January 2018 that she had given birth to AB, she refused to give any details of their whereabouts and it required the assistance of Interpol to locate the family in Belgium. Between 24th - 30th January 2018 in discussions with social workers the First and Second Respondents deliberately gave false and contradictory information to the Local Authority surrounding AB's birth. The travel abroad demonstrates premeditation, planning and manipulation of the Local Authority and with no intention to work honestly or co-operatively with the Local Authority.
Mother's response: not accepted. The first respondent informed the professionals at the initial child protection conference which took place on 16 November 2018 that she was planning on going abroad to give birth. The first respondent made this decision after being advised at the meeting that the local authority's plan was one of adoption. The first respondent's intention was not to avoid safeguarding interventions. The first respondent had no faith left in the English court system and wanted to fight to keep her daughter to remain in her care through the European courts. The first respondent spoke with the social worker on the telephone on 24 January 2018 to advise that she had given birth and stated that she was prepared to return to England to work with the local authority. The first respondent, having only just given birth, had a difficult conversation with Connie Tracey who she found to be extremely argumentative and shouting on the telephone. The conversation ended with Connie Tracey putting the telephone down. The only other occasion that the first respondent spoke directly with Connie Tracey was the day prior to the hearing in Belgium when she confirmed which hospital she was at. The second respondent had other conversations with the social worker, but the first respondent is unaware of the detail of those conversations.
Fathers Response: The Second Respondent does not accept parents failed to co-operate or engage with the Local Authority once AB was placed pre-birth on the Child Protection Register. The Second Respondent was accepted that the Local Authority would seek to remove AB at birth, but wished to work with the Local Authority to secure her return to parent's care. Parents were informed at a pre-birth meeting that the Local Authority would be seeking care and placement orders. The parents therefore chose to move abroad to have a fresh start. It is accepted that the details of their whereabouts were not given. It is not accepted between 24th and 30th January parents deliberately gave false and contradictory information to the Local Authority, they believed that AB had been born in Germany and only subsequently discovered she was born in Holland. The Second Respondent accepts the move was planned, but parents informed the Local Authority of their intention to move abroad unless the Local Authority were willing to work with them. Had this been the case, the parents would have remained and co-operated with the Court procedure.
There is thus a dispute between the local authority and the parents as to the reasons why the parents left the country in late December. I shall return to my conclusions on that in the chronology.
DOMESTIC ABUSE
7. The Second Respondent has 7 convictions for intimidation, violence and aggression between 2008 – 2016 and mostly against known persons, including previous partners, a neighbour and a 10 year nephew and has breached non molestation orders secured by previous partners on 5 occasions between 2010 - 2015. The Second Respondent has not engaged with programmes aimed to reduce the likelihood of re-offending, such as the Building Better Relationships course.
Mother's response: this is for the father to respond to.
Father's Response: The Second Respondent accepts the convictions and breaches of the non-molestation orders. He does not accept he has not engaged with programmes – he has completed half of the BBR course, and has repeatedly sought assistance from the Local Authority within these proceedings with assistance in completing courses.
8. On 20th March 2018 the Second Respondent was heard to shout at the First Respondent as she exited a car on her arrival at a contact with AB and then proceeded to beep the car horn at her. By driving the First Respondent to contact the First and Second Respondents were in breach of strict security measures. This caused the First Respondent to be distressed and crying and that she had "had enough" and wanted to find alternative accommodation. The First Respondent did not in fact find alternative accommodation and returned to live with the Second Respondent.
Mother's response: The mother accepts that the father drove her to contact on 20th of March 2018. The mother was upset as she had asked the father to drop her off around the corner from the contact centre. The father was aware of the venue of contact and it had already been suggested to the mother by the social worker, Norma Grove, that the father take her to contact the taxi transport not arriving on a previous occasion. The mother except she did say that she had " had enough" and wanted to find alternative accommodation. This was because she was annoyed with the father for dropping her off so close to the contact centre which she feared would have an impact upon her contact. The mother accepts that she returned to live with the father.
Response of the Second Respondent: The Second Respondent accepts he beeped the horn at the First Respondent but not that he was shouting at her. The Second Respondent is unable to comment about what was said by the First Respondent but accepts she returned to the property.
9. On 18th June 2018 they First Respondent requested the support of the Local Authority to place her in refuge accommodation and stating that the relationship with the Second Respondent had ended; he having spent rent money on gambling and drugs. On 20th June 2018 the First Respondent alleged that she had been abused in the relationship for 4 years and she had been raped her. Despite support offered the First Respondent had returned to their joint accommodation by 27th June and retracted her allegations made against the Second Respondent.
Mother's response: The mother accepts that she sought support from the local authority on 18 June 2018. This was due to the father having spent the children's birthday money and rent money on gambling. The mother does not accept that she told the social worker that the father spent the money on drugs. The mother does not accept that she alleged that the Second Respondent had abused her for four years and that he had raped her. The mother advised the social worker that she was very disappointed with the father as he had spent the children's birthday money and rent money on gambling after she had stood by him through the previous rape allegation. The mother felt that the father was not prioritising the children's needs. The mother accepts that she returned to the joint accommodation by 27 June 2018 as she had nowhere else to go. The mother has not resumed a relationship with the second respondent.
Response of the Second Respondent: The Second Respondent is unable to comment upon what the First Respondent has said to the Local Authority. He accepts that he has gambled some of the rent money but the remainder of the allegations, if made, are not true.
10. The Second Respondent continues to present a risk of engaging in violent, aggressive and intimidating behaviour to children and adults, especially those known to him.
Mother's response: This is for the father to respond to. The mother doesn't accept that the father requires support and counselling.
Response of the Second Respondent: Not Accepted.
These are of course central to the case and I shall return to them in my discussion and conclusions.
11. The First Respondent is not able to protect AB from the risk posed by the Second Respondent. The First Respondent is reluctant and unable to acknowledge and challenge the Second Respondent's perception of his violent and aggressive behaviours and convictions, for example in relation to his assault of his nephew and notwithstanding that she was present. The First Respondent has not taken steps to enrol on, or complete the Freedom Project.
Mother's response: The mother does not accept that she is unable to protect AB from any risk that the father might pose to AB. The mother has challenge the father's behaviours and has throughout these proceedings encouraged the father to seek help and counselling in relation to dealing with his behaviour and issues from his childhood. The mother has attempted to in role on the Freedom Project but has been advised that she would need a referral from the local authority. The mother has raised this with the social worker on numerous occasions but no response or support has been provided to her.
Respondent of the Second Respondent: This is for the First Respondent to comment upon.
DRUG USE
12. The First Respondent is a regular user of cannabis and cocaine, but has not been honest about her usage. Analysis of hair strand testing confirms that between the period of the beginning of October 2017 to the beginning of April 2018 (and which covers the period the First Respondent knew she was pregnant) the First Respondent used cannabis and cocaine throughout. When under the influence of drugs, the First Respondent would be unlikely to respond consistently and predictably to AB's needs.
Mother's response: The mother accepts that she occasionally smoked cannabis prior to becoming aware that she was pregnant at 23 weeks gestation and that she continued, at a reduced level, for approximately a couple of weeks following this. The mother accepts that she used cocaine prior to becoming aware of the pregnancy. The mother accepts that she used cocaine at the end of February/beginning of March. This was following a period of bad weather resulting in the mother's contact being cancelled over a two-week period. Other than the period as set out above the first respondent does not accept that she used cannabis or cocaine continuously throughout the pregnancy.
Response of the Second Respondent: This is for the First Respondent to comment upon, as far as the Second Respondent is aware the First Respondent did not misuse drugs between late December and their return to the UK.
13. The Second Respondent is a regular user of cannabis. Analysis of hair strand testing confirms that between the period between the middle of November 2017 and middle of February 2018 the Second Respondent used cannabis throughout. Analysis of hair strand testing confirms that between beginning February 2018 to the beginning of May 2018 the Second Respondent used cocaine throughout. When under the influence of drugs, the Second Respondent would be unlikely to respond consistently and predictably to AB's needs.
Mother's response: This is for the father to respond to
Response of the Second Respondent: The Second Respondent does not accept misusing cannabis; the results are as a result of passive exposure to other users of cannabis. The Second Respondent accepts using cocaine upon his return to the United Kingdom, but ceased using when he found out there was a chance he would have contact with AB.
i) The circumstances of AB's removal from the jurisdiction and whether the parents cooperated with pre-birth procedures, whether they gave full information to the local authority at the time of her birth and in particular whether their attitude evidenced an intention not to work honestly and cooperatively with the local authority
ii) Whether the father continued to present a risk of engaging in violent aggressive and intimidating behaviour to children and adults
iii) Whether the mother was able to protect AB from any risk that the father might pose to her
iv) In relation to domestic abuse there was a dispute over whether the father had engaged in programs aimed at reducing the likelihood of his reoffending
v) In relation to the March 2018 incident there was an issue over whether the father was behaving aggressively
vi) In relation to drug use the did not accept current cannabis use and the father asserted that the results of the drug test in relation to cannabis use were a result of passive exposure to cannabis rather than active consumption.
i) Despite her troubled childhood and adolescence she had successfully parented five children whilst married to Mr G. She and Mr G had undergone two years of marriage guidance to seek to address the problems in their relationship which she says featured physical and emotional abuse. If she was able to successfully parent five children in that context Ms Williams submits that the court should feel confident in her being able to regain that capacity.
ii) During the Wirral proceedings in 2016/17 the social worker noted that she was working cooperatively with a range of professionals and was engaged in seeking out and taking up support by self referring to projects which she was unable to access. Ms Williams says this indicates that the court can feel confident that the mother could hereafter work cooperatively with the local authority and that she would seek out and take up support.
iii) Ms Williams invites me on behalf of the mother to conclude that the local authority had closed their mind both prior to AB's birth and since to the possibility of the mother caring for AB. She submits that the local authority have not been as proactive as they should have been in facilitating the mother obtaining the support that she needed and accessing the sorts of programs which would have helped her to address the identified problems. Ms Williams says that is an obligation that lies upon the local authority even if they do not feel the mother is likely to benefit from them. The referral to Edan Lincs was too late.
iv) The mother submits that her separation from the father is materially different now to any previous time. She says that she now sees that he is coercive and controlling and she accepted this for the first time in evidence. She has realised the extent to which she is caught in the spider of his control and how he influences her thinking. Ms Williams emphasises that extricating oneself from a controlling relationship is a process and that now that she has realised the possible outcome in particular having seen Ms Boardman's evidence it has made a real difference in empowering her to separate. She emphasises that the separation has been in the making for some months prior to June hence the parties were arguing a lot and the August separation is the culmination of that process.
v) The mother's preference is for AB to return immediately to her care. She accepts that there is a risk but says that this could be ameliorated by a number of factors. First of all that she can work cooperatively with professionals; secondly she has decided finally to separate and does not want to resume a relationship and hence she has blocked him and his family from her social media contacts. Thirdly she has insight into the problems and has acknowledged the damage that he has caused to her children as has she and this is a positive indicator for her being able to benefit from work that she could undertake. Taken together with protective orders that could be put in place together with the ongoing involvement of the local authority through a care or supervision order the court can be confident that AB can return to her care.
vi) As an alternative the mother submits that AB should remain in foster care. If necessary this should be throughout her minority. This would enable her to have a relationship with the mother and her extended family. If the mother is able to make progress and the risks can be reduced then reunification of AB and the mother could take place. Providing for a foster placement to allow the mother the opportunity to make the changes necessary would be planned and purposeful delay from AB's point of view. This option could be facilitated either by an invitation to the local authority to change the care plan or by adjourning the final decision in relation to AB.
vii) As another alternative the mother invites the court to consider whether a placement of AB with the mother at a mother and baby resource which can provide therapy and support or with a family member such as BX would provide the necessary level of protection to AB.
i) The evidence showed the parents had cooperated in the pre-birth procedures and that they had not given deliberately any contradictory information to the local authority surrounding AB's birth and that their actions did not support a conclusion that the travel was premeditated planned and manipulating of the local authority with no intention to work honestly or cooperatively with them. Mr Ashworth notes that the pre-birth conference minutes record that the parents told the meeting they would be travelling abroad and that what the father wanted was to be given a fair chance to keep AB he being very sad to have lost CD. He submitted that this was not a case of a family disappearing without a trace and to that extent it could not be said that the father intended to thwart child protection intervention.ii) Mr Ashworth submitted that the evidence showed that the father had engaged with programs aimed at reducing the likelihood of reoffending such as the building better relationships course. He also drew my attention to an email from his instructing solicitors asking for the local authority to confirm what resources they were going to make available to the father to address his issues.
iii) In relation to the March 2018 contact incident Mr Ashworth points out that the evidence from the centre shows that the father was not shouting or repeatedly beeping his horn. He submits that the social worker embellished her evidence (whether deliberately or innocently) because of the blinkered view that she has of the father as wholly bad.
iv) In relation to drug use Mr Ashworth points out that the expert report identifies that the drug test results were explicable either by ingestion of drugs or by exposure to drugs in the atmosphere. Mr Ashworth acknowledges that the father himself admitted he had smoked cannabis after February. In particular the father is keen to emphasise that he stopped using cocaine when contact with AB became viable.
- In relation to the outcome Mr Ashworth submitted that there was material which should lead me to conclude that there was now much about the father that was positive. He submitted that I should conclude that the father's motives in leaving for Australia were well intended and designed to assist the mother in regaining care of AB and to demonstrate that they were truly separated. He said it was positive that the father was prepared to accept orders made against him that would limit contact if that supported a placement of AB with the mother. Mr Ashworth noted that Ms Boardman accepted that he had cooperated with her assessment notwithstanding it encroached upon sensitive areas and that the father had cooperated with the drug hairstrand testing
- He submitted that the reduction in offending behaviour since 2015 does evidence a change in the risks and that Ms Boardman concluded that the risks from the father were only medium.
- Mr Ashworth submitted that the father was committed to AB and that the intensity of his commitment to her was illustrated by how hard he had fought in these proceedings to gain contact. The father submits that the local authority had ruled him out and hence they maintained that no contact was possible. However contact did take place and the contact records whilst they showed AB was distressed this was not to be surprised given that she did not know her father. The evidence of his interactions with AB show that he behaved appropriately and lovingly with her.
- Ultimately Mr Ashworth submitted that the father felt he had not been given a fair opportunity by the local authority and that they saw nothing good and everything bad in him. Hence they sought to place weight on the allegation of rape of which he had been acquitted and they interpreted any evidence in a way which was most detrimental to him. The suggestion that his departure to Australia having had his passport returned to him that this was an example of his disregard for authority and his determination to thwart the system is illustrative of that says Mr Ashworth. In fact he left on his own making no attempt to take the mother still less AB with him.
- On behalf of AB through her children's Guardian Ms Hunt made common cause in most respects with the local authority's position. She pointed out that the mother has referred to the father raping her on two occasions and has subsequently withdrawn that. She invites me to conclude that the mother has said this albeit she acknowledges that plainly the court cannot go further than determining what was said.
- The Guardian was keen to emphasise that the evidence supports the conclusion that the mother's basic parenting capacity exists. The history of her older children and the observations of her care of CD support this conclusion. However the very significant deficit in her parenting capacity is her emotional availability to the children and their protectiveness. In this case those are both very highly relevant and make it clear beyond any argument that she cannot at present meet AB's needs. The Guardian question is whether the separation is genuine or not given the history. She also notes that the mother has failed to engage throughout these proceedings with the local authority and the services they could offer. Even since August the Guardian notes that the mother has taken no real steps to engage with the local authority or to access the support that she says she now recognises she needs. Her previous engagement has to be viewed in the context of the dishonesty that underpinned the engagement. The conclusion of His Honour Judge Parker was that the parents' relationship had continued although Ms Hunt acknowledged that there may have been a window of time when the relationship may have ended. Overall the Guardian clearly has concluded, submits Ms Hunt, that the mother has only just begun to embark on the journey to making the changes that are so needed. She is so far away from making progress and the prospects of success are so speculative that AB simply cannot wait until then. The idea that she would be reunited with her mother and then potentially separated again or that she would tread water whilst her mother attempted to make the changes would be highly detrimental to her ability to develop a secure attachment to a primary carer. In the circumstances the Guardian is clear that nothing else will do for her than care and placement orders.
The Legal Framework
- In order to make a care or any public law orders, the Local Authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish the statutory threshold set out in s.31(2) of the Children Act 1989:
"A court may only make a care order or supervision order if it is satisfied-
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and(b) that the harm, or likelihood of harm, is attributable to-i. the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him."16. The relevant date for determining whether the threshold is met is the date at which protective steps were first taken which in this case is namely 24th January 2018. However the Court can rely on subsequent events as per Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR 1111. Later events cannot be relied upon unless they are capable of showing what the position was at the relevant time and if so they should be admitted for that purpose. In Re G the court said that information as to a person's capabilities which comes to light after the relevant date may inform the decision as to what the risk was before the date just as much after that date where there was no change in the person's abilities. It is clear from the judgment of Lady Justice Hale (as she then was) that she clearly had in mind subsequent events which proved that a risk existed at the time. Thus events occurring in relation to the separation of the mother and father subsequent to January 2018 are all capable of demonstrating that as at the date of commencement of proceedings there was a risk of significant harm to AB.
- It is for the Local Authority to prove that the threshold is crossed. To the extent that the threshold is not accepted the burden of proof lies squarely on the local authority to establish on the balance of probabilities that the facts which are alleged to support the threshold. All the evidence is admissible notwithstanding its hearsay nature, including Local Authority case records or social work chronologies which are often second or third hand hearsay. However, the court should bear in mind that it is hearsay and give it the weight it considers appropriate: see Section 96.3 of the Children (Admissibility of Hearsay Evidence) Order 1993 and Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703.
- When I come to assess the evidence, I bear all of those factors in mind in reaching my conclusions on the threshold and the outcome.
- In considering the Local Authority's application for a care order, I must have regard to s.1 of the Children Act and since the plan is for adoption, also to the welfare checklist in s.1(4) of the Adoption and Children Act 2002: see Re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257 and Re R [2014] EWCA Civ 1625. I note that in Re W-C [2017] EWCA Civ 250 Lord Justice McFarlane said it was not necessary in a case such as this to consider the case through the prism of the s.1(3) welfare checklist but rather should focus on the ACA s.1(4) welfare checklist. Likewise, I must treat as my paramount consideration in accordance with s.1(2) of the 2002 Act, the child's welfare throughout her life.
- Section 1(4) of the Adoption and Children Act 2002 provides:
"The court or adoption agency must have regard to the following matters (among others)-(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),(b) the child's particular needs,(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant including(i) the likelihood of any such relationship continuing and the value to the child of its doing so,(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child's needs,(iii) the wishes and feelings of any of the child's relatives or of any such person regarding the child.- In respect of placement, s.21 of the Adoption and Children Act and s.52 apply to that application. Section 52(1)(b) provides:
"The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that-(b) the welfare of the child requires the consent to be dispensed with."In this case, both the mother and the father have parental responsibility and so fall within the definition of a parent within the meaning of s.52(6).
- In Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625, the court of Appeal held that the word "requires" has a connotation of the imperative (i.e. what is demanded rather than what is merely optional or reasonable or desirable). What has to be shown is that the child's welfare throughout her life requires adoption as opposed to something short of adoption. The child's circumstances may require statutory intervention, perhaps may even require the indefinite or long term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessary require that the child be adopted. The question at the end of the day is whether what is required is adoption.
- It is for the Local Authority, since it is seeking to have AB adopted, to establish that nothing else will do: see Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, Re B-S (Adoption: Application of s.47(5)) [2013] EWCA Civ 1146 and Re R. As Baroness Hale of Richmond said in Re B:
"…the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."- This echoes what the Strasberg Court said in Y v. The United Kingdom [2012] 2 FLR 332:
"…family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under Article 8 to insist that such ties be maintained."- The judicial task is always to evaluate all the options and undertake a holistic evaluation of the child's need. In Re B-S, the Court of Appeal stressed the following three points:
(1) "Although the child's interests are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.(2) The court 'must' consider all the options before coming to a decision.(3) The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer."- In Re B-S, the court held that the following two elements are essential when the court is being asked to approve a care plan for adoption and make a non-consensual placement order or adoption order:
(a) There must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option; and(b) Certainly, there must be an adequately reasoned judgment by the Judge.- In Re M-H (a child) [2014] EWCA Civ 1396 the Court of Appeal considered the test for dispensing with consent and the 'nothing else will do' test. Lady Justice Macur observed that that phrase was often taken in isolation from the preceding words referring to exceptional circumstances and the overriding requirements of the child's best interests. She noted that:
"It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of "nothing else will do" automatically bites.The "holistic" balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child's welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that "nothing else will do". All will depend upon the judge's assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which she has suffered or been exposed to."- It is always important to bear in mind what Mr. Justice Hedley said in Re L, which was 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."- That approach has been endorsed by the Supreme Court in Re B, where both Lord Wilson and Baroness Hale emphasised the very diverse range of parents and the diverse standards of parentings that society must be willing to tolerate:
"The State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs."- Sir James Munby, in Re G, emphasised the task of the court in relation to carrying out the global holistic evaluation and the need to undertake a multi-faceted evaluation of the child's welfare taking into account all the negatives and positives, all the pros and cons of each option. To quote Lord Justice McFarlane:
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives, and each option is then compared side by side against the competing option or options."- I must take into account AB's welfare throughout her life: the short, medium and long term welfare interests. I approach it on the basis that, if adopting a solution of permanent separation from his parents, it is on the basis that "nothing else will do" and that if a placement order is to be made that his situation requires it rather than it being only desirable. Delay is likely to be prejudicial to his welfare, although planned and purposeful delay may be appropriate.
- I take account of the Article 6 and Article 8 rights of AB and the parents. I remind myself that, where there is a tension between the Art.8 rights of the parents on the one hand and the Art.8 rights of the child on the other, the rights of the child prevail: see Yusuf v. The Netherlands.
- In determining what order to make, to the extent that it infringes the Art.8 rights of the mother and the father, the court must be satisfied that it is necessary and proportionate. Any conflict between the interests of the child and that of the parents should be resolved in favour of the solution which best promotes the child's welfare. In determining the proportionality issue, I approach it on the basis that if, on welfare grounds, the option of placing the child with a parent is only marginally outweighed by placing them away from the parent, that may be disproportionate. Conversely, if the option away from the parent is clearly more likely to promote the child's welfare that will be a proportionate interference.
- In carrying out the assessment, plainly some factors will carry far more weight than others. The balance sheet approach advocated by Lord Justice Ryder, whilst helpful, cannot convey the relative importance of any particular issue. The holistic evaluation is not a map without contours, but rather one in which there are very significant features on the landscape which may ultimately come to dominate the outcome.
The detailed factual background
- Set out below is a chronology drawn from the previous judgments of the court, the statements of the parties, the reports and the other records contained within the bundle. Insofar as any matters of fact are in dispute the chronology records my conclusions in respect of them.