England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 35 (Fam)

 

 

In the County Court

 

 

Before:

HHJ X

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Between:

 

	A Local Authority	Applicant
	And
	A Mother	1st Respondent
	And
	A Father	2nd Respondent

 

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Hearing dates: 9 June 2010

 

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J U D G M E N T

1                 THE JUDGE:  Some eleven months ago a baby girl was born to a seventeen year old mother who was herself a product of the care system and still technically in care.  That child was removed at birth into foster care by social services.  Why?  Because there were serious concerns about the mother’s ability to care for that child.  It was an unplanned pregnancy by a seventeen year old father in a volatile and sometimes violent relationship carried on only by the mother absconding from the children’s home where she was accommodated.  Later in the pregnancy, in May of last year, the mother was moved to secure accommodation.  Observations at that unit clearly showed that the mother had neither the patience nor the maturity to properly care for this unplanned baby and that her priority really seemed to be the relationship with the child’s father.

2                 The months leading up to the birth are characterised by repeated allegations being made by the mother of the father being violent to her but of their relationship continuing, as it still does today, a year later. 

3                 The local authority has set out a string of such incidents in a schedule of allegations which are sufficient to meet the threshold in section 31(2) of the Children Act 1989.  Many of these allegations have been admitted by the birth parents and I find in addition that, for example, in the month before the birth the mother frequently slapped and struck her stomach without regard for the welfare of the unborn child in her womb.  the parents accept that their child was at risk of suffering significant harm if she had been released into their care at birth because of the volatility and the violence in their relationship.  Indeed nothing changed because just three weeks after the birth the father assaulted the mother resulting in a conviction for common assault.

4                 In the months that followed the local authority came to the conclusion that the birth parents were not able to care for the baby and the care plan must be for the child to be adopted if no suitable family member could be found to care for her.  The mother put forward her former foster mother, but this proposal was rejected by the court at an interim stage for reasons which were given at the time.

5                 The mother’s father and his wife, who is in fact the mother’s step-mother, put themselves forward even before the baby was born and so the local authority, in due course, carried out an assessment of them but felt unable to recommend that they should be long-term carers.  When it became apparent that they might be the only chance of the baby being brought up within the wider birth family, they were given permission to obtain an independent report on the merits of them bringing up their granddaughter.  So this is how things have turned out. 

6                 The birth parents showed a lack of commitment to their child, failing to attend contact on very many occasions.  They also failed to co-operate in assessments, for example missing all appointments with a court appointed psychologist and not responding to the children’s guardian.  The mother then became pregnant once more and her second baby is due in about two months.  She hid this fact for a long time, denying that she was pregnant even when it had become obvious.   Both parents failed to comply with the court’s directions about the filing of evidence and eventually, at the eleventh hour, conceded that they are not able to care for the child so they support the application of the maternal grandfather and his wife.  Neither birth parent came to court for the first day of the final hearing although both attended for a short period on the second day and confirmed their position.

7                 This hearing, therefore, has focussed on the capabilities of what I will call the grandparents to care for the child whom I will call C for convenience.  They have been made parties to the proceedings and they apply for a residence order in respect of C. 

8                 The local authority does not support their application and asks the court to make a care order and consequently a placement order so that C can, according to the care plan, be placed for adoption.

9                 The very experienced guardian has considered all the options and after hearing the evidence her recommendation remains the same: that she cannot support the grandparents and believes that the best long-term option for C is adoption.

10              As I have already indicated, the birth parents support the grandparents although they have not taken any active part in this hearing.  They oppose adoption in principle but are not here to put forward any reasons.  It is of course understandable that they should feel that way.

11              I have, therefore, heard evidence from the social worker who assessed the grandparents late last year and who has formulated the care plan.  I have heard also from the step-grandmother, the grandfather and the independent social worker expert who was commissioned by the grandparents, as well of course as from the guardian.

12              The only issue now that the section 31 threshold is passed is what order would best serve C’s long-term welfare, and this must of course be the paramount consideration for the court.  In attempting to arrive at a conclusion a court must have regard in particular to the welfare checklist which, in the context of this case, is set out in section 1(4) of the Adoption and Children Act 2002.  But it is agreed on all sides in final submissions that the key issue is the capacity of the grandparents to meet C’s needs for the remainder of her childhood, so I shall concentrate on the factors for and against what the guardian’s solicitor called the ‘risk versus benefits’ assessment.

13              Two things need to be said straightaway.  The first is that it is a fundamental principle underlying our family law that where a child cannot be brought up by her birth parents, the first port of call for substitute carers must be the wider family.  All things being equal, and if it is consistent with the child’s welfare, a carer from within the family should be preferred over long-term foster care or adoption, therefore the grandparents in this case start from that position of advantage.  The second thing is that I am wholly convinced that the grandparents in this case are entirely genuine in putting themselves forward and are doing so for entirely laudable motives.  These are that C is their grandchild, that through contact they have come to love her, and they sincerely believe that they can bring her up better than strangers could.  There are other positive factors: these are that they are a married couple who have been in a stable relationship now for more than thirteen years; they have, of course, considerable experience of child care having three children of their own and a fourth who is the grandmother’s by another father but treated as their own; they have a well-kept three bedroom home which is admittedly cramped for such a large family but adequate at present; they are undoubtedly able to provide for C’s basic needs and they have shown emotional commitment to the idea of C coming to join the family.  All that is accepted by the local authority and by the guardian and certainly by this court.

14              So what factors are there to set on the other side of the balance?  I will start with one or two of the less important ones.  The first is that the grandparents have three sons ranging in age from thirteen to ten and a daughter of eight.  In practical terms they propose that C would sleep in a cot in their room and move in due course to share their daughter’s small bedroom which could only accommodate the two girls by installing bunks.  The guardian’s and the local authority’s view is that as the children get older there is insufficient space for them all.  That is probably true but the family could perhaps move locally without leaving the catchment area of the children’s schools.

15              The second is that the grandfather has epilepsy although it is controlled by medication.  He has six monthly check-ups with a specialist.  He is prone to suffer nocturnal fits quite regularly and on rare occasions during the day.  He is not in employment and he appears to have managed his family life without undue problems despite this medical condition.  The grandmother has recently been on disability living allowance due to a glandular problem that has affected her mobility in the past and still prevents her lifting heavy objects.  Medical procedures have now rectified the problem and with some more physiotherapy she expects to be fully fit within weeks.  So these two points I think can effectively be set to one side.

16              Of more direct concern, however, are these points.  They are that because the local authority is unable to promote the grandparents as kinship foster carers, for reasons which I will deal with in a moment, the grandparents could only care for C under a residence order, and that has two disadvantages.  Firstly it means that they do not have the local authority’s support which they would have if C were placed with them under a care order, nor of course would they have assistance with such things as supervised contact.  But secondly they would not have exclusive control of C because they would be sharing parental responsibility with the birth parents and this could have some undesirable repercussions, as will be seen.  The next point is that as long-term carers of C they would have to take the place of her parents, and that creates a somewhat skewed relationship when they are in fact her grandparents, particularly as C grows older and comes to understand their true relationship to her, that is that she would then in effect have two mothers and two fathers, and those she would have been treating as siblings would in fact be her uncles and an aunt. 

17              This brings me really to the fundamental concerns which have been raised by the local authority and by the guardian and which have resulted in the local authority feeling unable to put the grandparents forward as kinship carers, and those concerns are these.  Firstly how are the grandparents to deal with the birth parents and, perhaps in particular, the birth mother?  The fact is the birth mother has a difficult relationship with her father.  She herself was taken into care at the age of six and her father played a part in the reasons for that, although I hasten to say that I mention that purely for historical reasons and not in any way to count it against him, given the passage of years.  The mother lost contact with her birth father until I think last year, but after they were reunited the relationship soured when she visited and stole from him and his wife. 

18              The mother’s psychological profile is summed up by the consultant psychologist who was able to report so far as he could on her and he says this - it is actually at paragraph 5.2 of his report: “The mother’s personality profile suggests that she tends to be moody, disgruntled, hostile and argumentative.  Her behaviour tends to cause her to have problems with authority, family and friends.  She also tends to be irresponsible, aggressive and has an angry and hostile demeanour.  She is likely to have labile emotions and frequent mood swings.  She is also likely to experience feelings of worthlessness and suicidal ideation which may cause her to have difficulties with managing her day-to-day affairs.”  The psychologist says that these difficulties arise from her poor childhood experiences and there is justifiable concern that she may put considerable pressure on the grandparents for contact with her daughter or even, in due course, to have her daughter returned to her care.  At this stage it is impossible to know what will happen in respect of her second child due in a couple of months, but whether she is able to keep that child or not, in either event there is a likelihood in my judgment that she will cause problems for the grandparents.

19              The father of C is more of an unknown quantity but he remains a couple with the mother and his psychological profile shows that he has suffered a chaotic childhood which had an adverse impact on him, he is diagnosed as suffering from ADHD, he needs therapy to help him come to terms with his past and he would benefit from anger management training.  The psychologist says: “He appears to have poor self-management skills in that he does not think about the long-term consequences of his actions.  He is likely to be a risk to C until he develops self-management skills and soothing techniques for managing his aggressive and challenging behaviour.”

20              The grandfather asserted in evidence that if he and his wife had care of C he would not, in fact, allow any contact at all between C and her mother, although it emerged that he had not discussed this with his wife who was rather more conciliatory in the line that she took and would, in fact, have perhaps tolerated even weekly supervised contact.  But more importantly, nor had the grandfather discussed this with his daughter, C’s mother, whose support for him expressed so far on paper would no doubt have dissolved if she had got to hear of it.  The question remains, how could they manage the probably aggressive and confrontational demands from the parents who of course, as I have stated, share parental responsibility with them?  It is all very well to talk of calling the police or seeking injunctions as the grandparents proposed, but such a situation, particularly if it were protracted over a period of time, would put immense strain on the family and would be emotionally very damaging for C.  I have to say on the evidence that I consider it very likely that the mother would be pestering the grandparents for contact and of course it has to be said that it would be open to her in the future to issue her own proceedings for a residence order if she saw fit.

21              Perhaps the most worrying aspect though is that highlighted both by the social worker’s assessment from October last year and the independent social worker’s report of February this year.  What emerges from these reports is that the grandparents have four children that they are bringing up.  All those children have had behavioural problems of some kind.  The grandparents say that these behaviours only seem to manifest themselves at school and that at home they are different children, but I have to say that is a little difficult to understand. 

22              The independent social worker spoke to the relevant teaching staff and I have his findings set out in his report - in fact this is at page 38 of his report.  He says that the teacher at the younger three children’s school described the difficulties the school has had in managing their behaviour.  They state that the second eldest child, who is the oldest of the four who remains in that school, has frequently been in disputes with other children which have included bouts of aggression and anger vented on those children.  The school are endeavouring to work with him and have made some progress in this respect, but his behaviour requires special provision to be made within the school which has had some effect on his behaviour and he goes on: “In respect of the third son the school continually experiences difficulties with his behaviour.  It is stated that he is frequently if not constantly in trouble.  He can be a very difficult child to manage and can be spiteful and unkind to other children.  He is prone to unpredictable outbursts of behaviour which appear to have no real connection to his everyday experiences.  The school state that they have been able to make little impact on his behaviour and that both he and the second eldest child have had to be excluded from the school on occasions because of their behaviour.”  Then in respect of the youngest child, the daughter, the school described her as being difficult to manage when she first commenced, but over time her behaviour has become more manageable.  She can be somewhat manipulative in her relations with other children and even spiteful.  She has had extra support within the school and her behaviour has become more acceptable over time.  Dealing with the oldest child who has now moved on to secondary school, the independent social worker spoke to his year tutor who described his behaviour again as difficult within the school environment.  The school have made some progress in intervening in this behaviour and during his second year he has presented as calmer and more ordered than when he first arrived.  But she stated that he could often be provocative in the presence of his peers in terms of his statements to them and this can provoke a reaction that he is unable to cope with.

23              So the independent social worker summarised this as follows, he says: “The uniformity of these descriptions indicate that all of the grandparents’ children have exhibited or are exhibiting difficult and challenging behaviours within their educational and social environments.  This would indicate some form of dysfunction within the family which is reflected in their school behaviour and outside of their home.  This issue has been addressed with the grandparents who were visibly taken aback by this but thereafter resolved to interact positively with the children’s schools to attempt to further effect improvements in their children’s behaviour.”  Indeed the grandparents told me that they had not appreciated the seriousness of all this until the investigations which were carried out by these two professionals.

24              However, the social worker’s assessment from late last year also raised two issues that had not been addressed until then by the grandparents.  The first was their youngest son’s enuresis or bedwetting.  This had apparently been a problem since he was aged four or five.  It has, therefore, persisted for some five years during which he has had to wear a nappy at night.  Although they obtained medical advice five years ago they did not follow it through.  I have to say I find this astonishing given the inconvenience for them and the humiliation for their son.  Only when they were jogged into action by the social worker’s assessment did they do anything about it.  In fact the treatment that is now in train appears to be relatively simple and probably effective, and one has to ask why they had done nothing for so long.  The independent social worker agreed and I quote him: “that they had sunk into an acceptance of the situation”, and he also agreed in cross-examination that this seeming apathy was concerning.

25              The second issue concerns the parentage of their eldest son.  The likelihood seems to be that he is not the grandfather’s child although there remains some uncertainty about it.  Nevertheless he has always been treated as such throughout his life and the fact is that the grandparents have not been able to bring themselves either to confirm the position scientifically or explain the position to him.  They did eventually do so after the social worker’s October 2009 assessment but I think with some reluctance and when they had no option because they were afraid that the mother would get to know about this issue from the papers in the case and would tell their eldest son before they had an opportunity to do so.  I readily accept that this was a difficult issue for the grandparents and others in the same situation might equally have ‘put off the evil day’, but the guardian and the independent social worker see this as a failure to understand their child’s needs and to meet them.  By way of contrast, if C were to be in their care they would of course have to be open and honest about her origins and her place in the family, which they have assured me they would do. 

26              On the positive side it is very much to the grandparents’ credit that they put aside their passivity and they responded to the reports that I have referred to by doing what they could within the family to introduce a new regime, which as I understand it involves both punishment and rewards and greater involvement with the schools, and there are clear indications that this is having an effect.  But of course one has to face the fact that behavioural problems of this magnitude do not just disappear overnight and one must consider their origins.

27              The independent social worker has now reported on the changes that have taken place, since he reported in February, as follows.  On the third page of a follow-up document he says this: he spoke to the head of year at the eldest child’s school who informed him that initially at the beginning of the year the eldest son was involved in various disputes with his peers within the school on a consistent basis but this has largely ended and the eldest son now accepts a higher level of responsibility for his own behaviour.  However, these behaviours remain somewhat inconsistent and whilst he is responsive to the interventions of some teachers at the school he is less so to others, and can in respect of these teachers be confrontational.  The head of year went on to report that nonetheless he has developed a positive rapport with the eldest son and is able to impact upon his behaviours without major difficulty.  He felt that the eldest son’s educational path is in the balance at present in that he could maintain his present levels of behaviour, which are for the most part acceptable, or his behaviour could decline.  He went on to state that the school has always had the support of the grandparents in respect of their dealings with the eldest son and that has not been an issue, but he did express some concern if a young child were to be introduced into the family because he felt that the eldest son still required a good deal of adult attention and supervision which might be diluted.

28              As for the other three children, the independent social worker spoke to their deputy head and she said this: that the school has had problems with the behaviour of all three of these children who were identified as requiring extra support in school, but that from February 2010 the behaviour of the second eldest and the youngest, the daughter, have markedly improved.  Problems remain in respect of the third son which have also involved some incidents outside the school premises and were, in her view, more deeply entrenched.  As a result the third son has been referred to a special school where he remains for the majority of the week, and this is a school which is one provided for children with particular behavioural and educational needs.  So the improvements that have been referred to are, therefore, really very recent and of course those in respect of the third son are still very much in the balance. 

29              Initially the independent social worker gave his analysis of all this in his report and I quote from page 54 of his report where he says: “The children appear to have difficulty in relating successfully with their peers within the school environment.  Their sometimes disordered, challenging and aggressive behaviour within this environment may be indicative of their parents’ difficulties in providing stable and consistent care to their children.  The children’s behaviour would appear to indicate that boundaries within the family home are not always consistent and that parental interventions have not been successful in moderating their behaviour.  The grandparents may also have unwittingly been somewhat indulgent in respect of their children’s behaviour and have tolerated behaviour that has not helped the children’s integration into their school environment and in respect of their relationship with their peers.  Thus their behaviour appears to be uniformly characterised by a worrying degree of aggression and resistance which has necessitated the regular intervention of their teachers.  It is likely”, he says: “that these behaviours are reflected also within the children’s home environment and this is a concern in respect of the potential placement of a very young and dependent child within a home that would appear to be characterised by some degree at least of disharmony, dissention and even aggression between the children.” 

30              His conclusion which I now quote is, I believe, sympathetic but it is also negative because his conclusion at that time was this: “The greatest concern”, he says: “in respect of C being placed in the permanent care of the grandparents relates to her placement within a household containing four young and active children whose behaviour has caused concern within their schools and in the community.  She will need to be provided, if she is to develop satisfactorily throughout her early years, with a calm, stable and caring environment within which she is the focus of a great deal of parental care and affection.  The grandparents may be deflected or prevented from doing so if they have to meet the ongoing and perhaps increasing needs of children whose behaviour may cause them to feel frustration, annoyance and even despair on a continuing basis.  The grandparents would need to demonstrate that they are able to address the behaviour of their children and thereby provide a more stable and settled home life for C if they are to be considered suitable to assume her care over her crucial childhood years.  It is in reality difficult to envisage this occurring with sufficient certainty within a period of time that is compatible with C’s increasingly pressing needs for permanence.  Unless a fundamental turnaround is achieved in respect of the behaviours of the children currently cared for by the grandparents, unless that is achieved in the very near future it is not possible, despite this couple’s real emotional commitment to her, to recommend the placement of a very young and vulnerable child such as C in their permanent care.”

31              On being informed of the grandparents’ more proactive stance after they had read this report and on being told too of the signs of positive change, some of which I have already referred to in the school reports, the independent social worker has moved to the position of saying that the issue is now somewhat finely balanced in his opinion and that it is possible to envisage the grandparents caring satisfactorily for C.

32              The local authority and the guardian take the view that credit must be given for the grandparents’ new found involvement, but that these are early days and that there is much yet to be proved.  Essentially I think the point that they make is that the introduction of a baby requiring a high level of care will prevent the grandparents giving the attention and care to their own children whose behaviour at present is in the balance.  It was suggested, therefore, that C’s arrival in the family could be the straw that breaks the camel’s back and therefore it is their joint view - that is the local authority and the guardian - that there is simply insufficient certainty to commit C to their care.

33              Counsel for the grandparents, therefore, proposed that an opportunity be given for the grandparents to prove themselves by retaining the present care of the children under an interim care order and by the court ordering a section 38(6) assessment - as was done in the case of Re: A, a decision of Munby J which was put before me - so that over a period of at least three months, and possibly rather more, and with a programme of increasing contact as I understand it, the question of the grandparents’ ability to overcome these concerns could be tested.  Those concerns of course being both the potential involvement of the birth parents and any continuing improvement in the behaviour of their children.

34              I have to say that I do not consider that is a practical proposition, and I say that because it seems to me that C needs a decision now.  It is already nearly twelve months since she was born and went into foster care.  As the guardian says, she is becoming increasingly attached to her foster carers and that a decision is needed now, not an uncertain outcome in some months time.  I agree also with the guardian’s point that any move that C now makes must be the right move and must be the permanent move.

35              The decision therefore turns on whether this court can be persuaded that C’s welfare needs can be safely met by the grandparents, and despite their undoubted motivation and their efforts to improve their family circumstances, I have to say that the arguments put forward by the local authority and echoed by the guardian must, in my judgment, prevail.  I have outlined the concerns and I do not consider that there is a satisfactory answer to either of the two chief concerns that would persuade me, in the child’s interests, that this family placement should prevail over the alternative of adoption.  Adoption for a child of this age who is healthy and has formed attachments to her foster carers should present, in my experience, no problems and I anticipate - and the evidence is to this effect - that she will be matched and placed speedily.  The fact remains that the birth parents do not consent to this course, nor of course are they here to oppose it, but in any event for the reasons already given C’s welfare requires that I dispense with their consent to such an order.  So for all these reasons - and it has to be said with a heavy heart because of the sympathy that anyone hearing this case would feel towards the grandparents - I have to make the orders that are sought being both a care order and a placement order.