England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 50 (Fam)

 

 

In the County Court

 

 

Before:

DJ 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: 25 October 2010

 

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Judgement

 

Introduction and issues as to orders sought.

In these Public Law proceedings the Applicant Local Authority [ L A ] seek a Care Order in respect of the one child under S.31 of the Children Act 1989, an order under S.34.4 of that Act authorising them to terminate contact with the parents, and an order pursuant to S. 21.1 of the Adoption and Children 2002 authorising them for placement of the child with a substitute family by way of adoption with prospective adopters[ a placement order.] and to dispense with the consent of the parents. Throughout these proceedings, the Childs welfare is my paramount consideration. The child for whom I am concerned is aged 3½yrs

Following the making of the care order, the LA propose contact shall continue but such contact shall be gradually reduced until placement with the prospective adopters, and thereafter with letter box, that is the exchange of information on twice yearly basis through the letter box scheme for information purposes only.

The parents who were not presenting themselves as a couple individually did not agree.

The parties proposals.

Each parents proposals for the future of the child at the commencement of the case were that the child[C] should be returned to father[F] with mother [M] having contact.

The parents opposed the making of a care order, based on the LA care plan. However on the 3^rd day of this 4 day hearing F indicated through his counsel that he no longer wish to put himself forward as a carer and wish to withdraw from the proceedings. He stated in a signed document presented to the court at about 2.30pm

“I love and adore my child and want the best for her. During contact I have seen her as a happy and contented child. I would not wish that to change. I have heard the evidence in this case as well as reading all the documents. It is with the utmost sadness and regret that I can no longer put myself forward as the carer for my child”.

I was told it was not a decision he had rushed. His counsel said he had been discussing his position with counsel almost from the first day of the hearing. M’s proposals were originally to support F, but his decision came as shock to her as up until that moment, although they were separately represented they had been speaking to each other, passing notes and M had brought him water during the proceedings. They were clearly on good terms. After his decision, F did not wish to return to the hearing which continued in his absence but in the presence of his counsel. No adjournment was sought by any party.

M who had previously supported F, now put herself forward as the sole carer stating the child should be returned to her care in the long term. If the court’s view was that the future of this child lay outside the family, it was not best met by adoption, as M now sought an independent parenting assessment, and additional psychological assessment, in addition to those already before the court and which are referred below.

I refused both those applications and neither did I see it was necessary to recall the jointly instructed psychologist, or the psychiatrist, as the evidence filed and given by those witnesses addressed all the issues of parenting by both parents. Both experts had already been cross examined already.

The Guardian [G ] supported the LA in the making of the care order based on the amended care plan.

 

Family dynamics and history

The history which led to these proceedings is set out in a detailed chronology at the beginning of the bundle, which I adopt for the purposes of this judgment. In summary, C is one of 9 born to M who is aged in her mid forties. Eight of those children have different fathers. F is the 8^th father of this child only. He is aged in his early sixties.

He also has 9 children by 4 different relationships, all of whom are now adults. The current circumstances of the child are that the child remains in foster care where the child has been since August 2009. F has continued throughout these proceedings to reside in London visiting the child weekly to exercise contact in South Wales, where Mother has rented accommodation. His commitment to contact has been excellent.

M resides primarily in south Wales. Additionally she has retained an interest and home in her former rented property in London which is currently being bought under the ‘right to buy’ in jointly with a relative. Both M and F, who were never married to each other, are in receipt of state benefits.

History

The parties met approximately 6-7 years ago in London. The relationship was unstable an volatile, peppered with domestic violence. It was chaotic and unstable and in December 2008 M returned to South Wales as a result of the domestic violence between her and F where she has remained, and where over the last 21months F has visited her and the child.

Periodically in these proceedings, she returns to London and has indicated her intention to return to London, although I am still uncertain of her definite intentions.

Both abused alcohol and engaged in violence, resulting in F being convicted on 11^th September 2009 of assault on M and subject to a community order with a 24 month supervision requirement. Out of 24 appointment he has to date attended 21, the 3 being missed as authorised under the scheme. A further requirement is that he attends the Integrated Domestic Abuse Programme. [ I D A P ] which is yet to commence owing to a delay in the programmed department. Alcohol tests confirm his evidence that he has reduced considerably or abstained from all alcohol since the early part of the year. M continues to consume alcohol and on occasion at levels that are inappropriate and excessive.

Otherwise the respective home conditions of both parents were satisfactory and although F’s may have been sparse they were practical and acceptable. Despite this child being placed on the Child Protection Register by a London Borough Council, the child was removed from the register in the early part of 2008, some 8 months before M and the child returned to South Wales. Despite her previous family history below, that local authority described her as displaying parenting to an exemplary standard.

All of the above is referred in the final threshold criteria to be found in the bundle.

 

Evidence

Father initially stated he wished the child be returned to him. He had nine children by 4 different relationships His first wife died leaving him with 4 children. His subsequent partner in the north east of England produced 3 children. Moving to the Caribbean, he remarried in 1981, which relationship produced 2 children. That marriage produced 2 children but ended in divorce some 11 years later. The daughter of that relationship led to considerable difficulties being encountered necessitating the considerable involvement of social service. All 9 children are now adults the youngest being 25. And lastly, his relationship with M some 6 years earlier produced the child C, the subject of this action. By his own admission and despite being in receipt of state benefits, he admitted to spending in July 2009 half his income on alcohol. He accepted that his alcohol abuse would have previously affected his parenting capacity, but that since the early part of 2010 consumption has now ceased or dramatically reduced, which the alcohol testing result appear to confirm.

Father had filed 2 statements. In summary he said that he was capable of caring for the child having brought up 8 others children all of whom are now adults. He had in the past been guilty of drinking to excess over many years but that had now changed and for the last 9-10months his consumption of alcohol had been almost zero. He accepted the medical interpretation of the forensic analysis of his blood samples in December 2009 which showed abnormal results in 3 areas and that in 2 of those fields that could well indicate they were affected by alcohol. He however had changed his lifestyle and could now provide a stable home either in London or the north east of England where the majority of his family lived. His 2 youngest children remained in London, one of whom is employed in the police service. Despite family viability assessments by the LA, they all proved negative. He nevertheless believed M was a good mother.

 

 In summary M has said that despite being subjected to domestic violence from F whilst living in London, she would support F in his application for the return of the child to him. She would seek contact but believed F could provide all the necessary skill and care required to provide a safe home for the child. At birth, C had initially been placed on the child protection register primarily she says because of the history surrounding her previous 8 children, all of whom were not residing with her and all of whom had been subject to care orders, supervision orders or residence orders. She stated she moved to South Wales as she was leaving F and London as the domestic violence had “started up again and I wanted a fresh start with the child”. Despite three subsequent episodes of domestic violence in South Wales post relocation, in the April and July 2009, she nevertheless supported his application for the return of the child to him.

She recognised that she had been previously diagnosed with Borderline Personality Disorder but did not agree with the diagnosis. She accepted that she had made attempts on her life, had sought counselling from a number of sources and following C being removed from care in August 2009, had drunk alcohol to excess. She admitted to using profane language to various social workers but usually only in times of stress brought about in attempting to have meaningful contact. In her recent statement she admitted to finding it difficult to cope, and accepted that she needed long term therapy but despite having appointments made, she failed to keep those as she saw no point. She believed F had shown a huge change in his character, life style and behaviour and displayed real commitment to their child. She was shocked when he withdrew his application for C’s return to him. Thereafter she applied for C to be returned to her, seeking an adjournment of the proceedings and seeking various assessments, all of which I rejected, as it would have meant a lengthy adjournment.

 

Psychological evidence

Expert evidence has been provided by independent psychological reports on both parents from a jointly agreed instructed expert.

Of F, the report concluded his past and current presentation revealed a history of depression and alcohol dependence coupled with evidence of antisocial personality and narcissistic personality traits. Despite the aging process, he continued to demonstrate the capacity to behave in an abusive and unacceptable manner as shown in the recent assaults on M in the summer of 2009 and earlier. He had over many years engaged in reckless and impulsive behaviour resulting in criminal convictions for GHH, ABH wounding and battery many of which were linked to alcohol dependency as has been the domestic violence which has been prevalent in this relationship. He should benefit from receiving appropriate psychological training to treat the depression, which would assist in controlling his aggressive outbursts and problems with emotion regulation and impulse control. Whereas it was encouraging that he was at long last beginning to work with professionals it would be long-time frame before there would be a major recognised change.

 

Of M in summary it concluded that she herself was one of 20 siblings. She was adopted at 8 months old and her adoptive father died when she was 2 yrs. There appeared to be a history of mental illness in her biological family and some of her siblings were drug of drink dependant. She admitted to past problems of alcohol misuse. She was currently on an antidepressant drug taken twice daily and had recently been funding private counselling from a variety of providers. Twice recently she has made attempts on her life by overdosing. She had been sectioned when suffering post natal depression being detained for various periods precipitated by chaotic behaviour post natal depression and alcohol abuse. In previous proceedings three previous psychiatric assessments had diagnosed a personality disorder which alluded to a history of disturbed emotional development, temperamental difficulties, fears of rejection and emotional instability which was confirm again in 2008. She had scored very highly on the major depressive scale when tested, indicating her presentation as being behaviourally apathetic, socially withdrawn with feelings of guilt and pessimism. She has had lengthy episodes of mental health problems and had been diagnosed on 3 different occasions as having a personality disorder all of which she had disputed. Tests showed clinically significant evidence for the presence of pathology pervasive enough to be classed as personality disordered on the Emotionally Unstable [ Borderline ] Scale with co morbid dependant, avoidant and masochistic features. The consequence was that M would find it difficult to approach the task of parenting in a way that promoted attachment security for the child. Her history displayed emotional instability and impulsivity which features were prominent in her clinical presentation. There were risks of neglect and emotional harm as a consequence of the above matters referred above and more fully set out in the report. Her long standing history of depression was likely to continue unless treatment was sought, which itself would be lengthy, lasting years. Currently and unfortunately M has not shown any long term capacity to engage in meaningful therapy.

 

Psychiatric evidence.

The opinion reached in the most recent report in 2010, was that M’s mental health problems related to emotional and psychological difficulties, and taken together were consistent with a Borderline Personality Disorder, the essential features being “a pervasive pattern of instability of impersonal relationships,. Self- image, and affects and marked impulsivity that begins by early adulthood and is present in a variety of context”. The individual functioning was adversely affected. Concern for emotional harm would arise as a result of being brought up in a highly charged atmosphere where the child was likely to witness impulsive and volatile outbursts and may mirror over time those outbursts. It was believed her ability to work openly and honestly with professionals to address these issues would be difficult as she tended to minimise the extent of her underlying psychological difficulties. She needed to remain on anti-depressant medication with ongoing supervision provided by the local psychiatric services. Borderline Personality disorder was by its nature often difficult to treat, all the more so where the symptoms were long standing and deeply engrained. This was so here, as her problems had persisted for a long time with little evidence of her condition improving significantly over the years.

 

In respect of both these 2 expert witnesses, their evidence was challenged by M and F, but the cogency of their evidence was not diminished. Both witnesses impressed me as to the professional approach and the impartial and careful way in which they had carried out their analysis and interpretation and how they had prepared their reports and gave their evidence. I accepted their evidence without any reservations.

 

Other witnesses.

The three LA witnesses gave their evidence honestly which was consistent with the written statements served and filed. Where they felt that they could not deal with an issue they said so. Challenged by the parties their evidence was as in the statements filed in the bundle. There were no material alterations or deviations in their evidence which I found creditable which I accepted

 

The Burden and Standard of Proof.

 

The burden is on the Local Authority as the applicant. In re: B 2008 UKHL 35, Baroness Hale stated

‘…I … would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold at s31(2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies’.

Findings of Fact

Despite the efforts of the applicants to calm a volatile situation that had erupted in M’s home, when they visited her in August 2009 to ensure she and her child were safe following complaints of domestic violence by F on M, it proved impossible. M had been abusive, swearing and irrational. Her pattern of behaviour continued over the months when exercising contact as typified by a very unpleasant incident on the escalators in an out of town shopping regional shopping centre which clearly caused distress to C, who was visibly upset.

On the conclusion of the factual evidence, I make the following findings of fact with regard to the threshold criteria. Domestic violence was a regular occurrence within the relationship resulting in M receiving visible injuries to her face with split lips and black eyes. Those injuries were incurred more recently in South Wales necessitating the visits by the police and social services to see if M and child were safe. I do not accept M fled London because of violence inflicted by F’s brother on her. She left London because of the violence inflicted on her by F, with a view to starting a new life. The violence was inflicted by F. His extended family may have contributed to the tensions in London to their relationship but they were not the perpetrators of that violence. M was an unconvincing witness in that respect. The child of course would have seen the results of such actions and was clearly exposed to emotional abuse.

 

Threshold

In a Public Law case a Court has no jurisdiction to make any Public Law Order unless and until the so-called threshold criteria set out in S 31 of the Children Act 1989 are established. I have to be satisfied on the balance of probabilities, that the child concerned, is suffering or is likely to suffer significant harm or likelihood of harm and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him/her if the order were not made not being what it would be reasonable to expect a parent to give to him/her.

In relation to the other matters relied upon as satisfying the threshold criteria I find

M and F had regularly been drinking to excess. They remained in a violent relationship punctuated by serious violence, and despite such events and these proceeding being underway, went on holiday with M’s new boyfriend to Cornwall. Whereas the child may not have witnessed the acts of violence taking place she would probably have heard them, and would have seen the injuries inflicted and incurred by M. I am satisfied that taking the above into account the threshold criteria has been satisfied in all its aspects.

 

Capability

It is useful to remind myself of what Hedley J said in re L [care; Threshold Criteria ] 2007 1 FLR 2050

“society must be willing to tolerate very diverse standards of parenting including the eccentric and 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 province of the state to spare children all the consequences of defective parenting.

 

Disposal

Once the threshold criteria are established the court has to ask a number of sequential questions. The essential questions are: Whether an order should be made at all, and if so, what kind of order. In answering these fundamental questions, the court has to apply the principle that the Child’s Welfare is the paramount consideration; apply the statutory Welfare Checklist; not to make an Order unless the Court considers that the making of an order would be better for the child than making no order at all; and before making a Care Order, to consider and approve the Care Plan and the proposals for future contact if any.

 

The subsequent Assessments

The psychological and psychiatric assessment I have already mentioned. I have accepted their findings. The LA and F each had an Independent Social Worker [ISW] assessment of F on his capacity to properly parent. Each arrived at opposing views. However F withdrew his contentions to be considered as such, and never gave oral evidence. Both ISW gave oral evidence, during which the honesty of M and F was questioned as when F arrived for interview with his ISW, he and M deceived the witness in the early stages of the interview as to the capacity in which M was accompanying him describing her as a friend, which deception continued for 20 minutes or so. On balance I preferred the evidence of the LA witness as the F’s witness placed an over simplistic view on F’s previous family history and his more recent behaviour. He did not always tell the complete picture which had to be teased out of him when inconsistencies were presented, and whereas the witness may have accepted this I was not satisfied he had been completely open and frank with her. The impression given was that this witness was acting for him and was putting a favourable gloss on this behaviour.

 F having withdrawn from the proceedings, it was clear that in the absence of any significant changes, M would be likely to continue to lead her chaotic lifestyle characterised by mental health issues, and by alcohol abuse. She committed herself to new relationships and between her relationship ending with F and moving to South Wales, had been involved in 2 further relationships up until the hearing. I find C would be at risk of emotional and physical harm if left solely in her care.

The assessments of M by the LA expressed concerns as M’s lack of capacity to keep the child safe from the risk of physical harm, emotional neglect and abuse which the Guardian endorsed and supported the above assessments, adding that neither of the parents had developed any greater insight over the last 14months as to why the LA remained so concerned. Each parent continued to minimise the problems that existed justifying the LA in initiating these proceedings. Neither accepted that the other posed a risk to the child. The contrary was argued by both that each was a suitable parent. I do not agree.

 

Having sat through 4 days of evidence and the volt face by father on the 3^rd day, G’s opinion remained unchanged, as the six kinship assessment were all unfavourable and were not challenge by either M or F An attempt by M to introduce supporting evidence from a long standing friend who cast M in the favourable light of a caring M was not sufficient for me to satisfy myself that this child should remain with M, as although the witness gave her evidence honestly, she did not hear and had not seen all the evidence provided.

The LA position is that they wish a care order to be made in accordance with the amended care plan.

 

Conclusions 

There is no doubt that both parents have a great deal of genuine love affection for the child. Both have experienced difficult upbringings and lives, involving a number of partners and wives, which have between them produced 19 children. As C becomes older C will need parental care and guidance, and until M undergoes and completes all that treatment which has been suggested, she will be unable to provide it. Similarly F. He had difficulties parenting his youngest daughter some time ago when she was a teenager and at a time when he was a much younger man and which required the intervention of social services. He has recognised the commitment and difficulties that will arise in 10 -12yrs time when C herself will be a teenager. These may replicate those experienced with his other youngest daughter. He is undoubtedly making great inroads into the reduction of his alcohol consumption and hopefully he will complete and continue to work with those authorities on the Integrated Domestic Abuse Programme If he had extended family support with positive kinship assessments, he may have felt more comfortable proceeding, but without these it was difficult for him.

 

Decision

Having reflected on all of the evidence I have heard and read and the submission, and as family reunification is not possible, it is clear that a care order has to be made as this is the only real option available upon a proper consideration of the welfare checklist under S. 1.3 Children Act 1989. Both the allocated social worker and the guardian have completed the detailed exercise of the operation of the Welfare Checklist in the circumstances of this case and I agree with their views and adopt them and echo G comments who supported them.

I endorse the care plan and move to make a placement order which will enable the local authority to implement their care plan.

I dispense with the parents’ consent having considered all the factors under S.21 Adoption and Children Act 2002.

And should there be direct contact? Some indirect contact, can show to the child through that contact, the parent has not given up and has remained concerned as to the child’s interest and well-being. I order that it will be the usual letterbox contact as organised by the social workers.

The Human Rights Act 1998

The principle of proportionality must always be considered alongside the welfare

 checklist of S.1 Children Act 1989.

 

Hale LJ in re ; C&B 2001 1 FLR stated;

‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted to that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interest of the child’

I have considered the relevant articles of the Convention on Human Rights. I am satisfied that the interference with the mother and father’s right to family life is both justified in law and pursues a legitimate aim, namely the welfare of the child. By the same token the interference fulfils a pressing need and is proportionate to that need.