Chd (A Child: Care and Placement Orders) [2014] EWFC B125 (24 September 2014)

1. Introduction – This is the second case in a month that I have had to adjourn at final hearing because the professional evidence that has been produced is inadequate. In the event that there are any difficulties with legal aid I make it plain that the final hearing is being adjourned and will resume. I am releasing this judgment for publication because of the procedural and evidential deficiencies that are revealed in this case. Because the case has had to be adjourned part heard I have anonymised it fully.

2. A local authority has applied for care and placement orders in relation to a boy to whom I will refer in this judgment as ‘Chd’. He is six months old. His mother, who is aged 23, is ‘M’; she opposes the Local Authority’s applications and wishes to retain the care of Chd. His father, who has played no part within these proceedings and does not have parental responsibility for Chd, is said to be F.

3. In his reports, the guardian (‘G’) recommended care and placement orders. However, during the skilful and very carefully prepared cross examination by Ms Judi Evans, he agreed in oral evidence that there is a realistic option available which is consistent with Chd’s welfare and by which Chd might remain in his mother’s care; thus he considered that there should be a purposeful delay whilst further evidence is garnered. That evidence from the guardian, which took everyone by surprise as it was not foreshadowed by anything that had been written, led me to invite the guardian to think about matters overnight and return to the witness box next day. When he did so today he remained of the view that there was that realistic alternative to adoption. I commend the guardian for his receptiveness and the depth of his thinking on the issues in the case. However, I do think it unfortunate that this ‘expansion’ of his reasoning came on day six of a hearing which has such vital importance to Chd and to his mother.

4. These proceedings were issued immediately on the birth of Chd. Chd has remained in the mother’s care, however, under interim care orders and intense supervision. For the first twelve weeks of his life he lived with M (save for two weeks in respite care) in a mother and baby foster placement with ‘FM’ and then, from 3^rd June 2014, he and the mother lived on their own in supported accommodation. He and M then moved back to the foster placement with FM where they now remain.

5. The case started before me for two days on the 14^th August 2014. There then had to be an adjournment until 2^nd September 2014. Three more days then had to be found for it and the case resumed on 22^nd September 2014 for three days. Today is the third day of those three. During the period of adjournment the mother initially remained in her flat but daily and near constant supervision was put in place in the light of some of the evidence that I had heard. When FM returned from holiday, M and Chd returned to live with her.

6. The Local Authority contends that, since Chd’s birth, the mother has demonstrated that she is unable to care for him adequately and suggests that he would suffer emotional harm and neglect if he remains with her.

7. Oral evidence - This has been a long hearing. During it I have heard oral evidence from eleven witnesses.

8. Points of practice - There have been a number of unfortunate points of practice in this case.

9. The placement application was not filed until the day that the case started. That should not have happened.

10. The Local Authority evidence was filed late; it should have been filed by 22^nd July 2014 and the Local Authority was clear that it would not support Chd being with the mother well before that date (indeed, before the proceedings began). No statements were filed by two important Local Authority witnesses; Ms J and Ms B. They visited the mother’s accommodation frequently and gave core evidence. However, they were not asked to file statements and came to give evidence based on over 130 documents that were filed on the morning that the hearing started.

11. A further issue arises in relation to the approach by the Local Authority to the assessment and support of the mother. Having received a referral from the health visitor that the mother was pregnant in August 2013, it decided not to become involved with assessments or with providing support to the mother because the birth was too distant and thus, it is said, the mother did not fall within the terms of the Local Authority’s protocol for support. I required the Local Authority to file a copy of the protocol. It provides as follows:

i) 12-16 weeks: Referral made to Social Care by midwife. Initial assessment begins. The Children’s social care team will acknowledge receipt of referral and communicate their decision on the next course of action within one working day to the health professional. Where possible a joint visit between the midwife and social worker will occur.

ii) 14-18 weeks: Initial Assessment completed, regarding the unborn child and any other children in the family, within 10 working days of the referral and signed off by a manager. Social care begin a full pre – birth core assessment to include gathering full family history and chronology; information sharing with other relevant agencies; assessment of mother’s partner where there is one; wider social and family history and obstetric history.

iii) 21-25 weeks: Pre – birth Core Assessment completed and signed off by a manager. If recommendation is that a Strategy Discussion is held due to risk of significant harm, a strategy discussion with police, paediatrician and legal will be held and where necessary an Initial Child Protection Conference will be convened within 15 working days.

iv) 23 – 28 weeks: Initial Pre birth CP Conference is held by 28 week stage at the latest. Assessment of extended family members, who could be kinship carers, will begin at this point.

v) 26 – 32 weeks: Where appropriate the case will be presented to the Legal Threshold meeting for a decision on whether the Pre-proceedings process should begin. A Public Law Outline meeting will be convened where appropriate (PLO).

vi) 28 - 32 weeks: Pre – birth hospital planning meeting held

12. When I asked how it was that that protocol was not put into effect I was told that the initial referral was made too early (i.e. at ten weeks, rather than twelve weeks) and therefore was rejected without any flagging up of the ‘case’ as one that would require imminent consideration, once the twelve week mark arrived. The Local Authority says that its ‘First Point team’ told the midwifery service to refer the case again later in the pregnancy. The service did not refer the ‘case’ back until after the New Year (as I set out later).

13. The practice in this case was manifestly unsatisfactory and if applied to other cases could expose parents and children to the risk of serious harm – what if the birth had been premature or the mother had moved to a different location? In a case where there were risks of serious violence or other serious abuse, would the same procedure occur? This procedure must be reviewed urgently in my opinion. Between them, the midwifery and Child and Young People Services failed to engage a clear protocol. I consider that they must discuss their procedures and amend them. This part of the judgment must be referred to the director of social services for the Local Authority and also to the safeguarding board.

14. Further, it simply does not make sense for the issue of support for this mother to have gone off the radar and be resurrected four weeks before the birth. Plainly in a case where a Local Authority expresses itself as holding ‘serious concerns’ such as this, parenting assessments and pre-birth support should not commence then (as the Local Authority’s own protocol recognises).

15. In fact, when the Local Authority became involved again some six months later (hence the reference to four weeks before the birth) it decided that it would not offer the mother parenting support or services [see C16, where the social worker says just that]. It concluded that the mother would not be able to care for the child and that the child should be placed for adoption with the adopters of this child’s half sibling (i.e. the mother’s first child who was adopted in proceedings that ended in July 2012). Having now heard the case it is perfectly obvious to me that this is not a case where it was remotely appropriate for the Local Authority to have written off the mother in this way. There are real issues that needed to be considered, assessed and addressed.

16. At each court hearing the Local Authority has made its position plain – that mother and child should be separated. I commend the Local Authority for the fact that, notwithstanding that view, it has been able to arrange for the mother and child to live with FM and then to move to supported lodgings. It also provided a high level of supervision and support to the mother during the period in those supported lodgings. The difficulty is that that supervision and support have been provided in the context of a mother, who has every reason to be vulnerable as a result of her traumatic past, knowing that the Local Authority providing it has always been and remains opposed to her retaining the care of the child. Not only did the Local Authority raise its support for separation at hearings (including the very first hearing when it suggested the mother and child should be separated immediately following the birth) but it also sought to correspond with me directly, without notice to the other parties, asking for my advice about whether the case should be listed for revisitation of the issue of separation (by email on 31^st July 2014). I declined to correspond with the Local Authority save to tell it that it must never attempt to correspond with a judge in that way again save in cases of genuine emergency where necessity demands ex parte communication; this case got nowhere near that level.

17. Once again the evidence of services that might be provided was late and came in the form that I have described. The Local Authority’s evidence should have been filed so that there could be an orderly and fair examination of what is proposed and whether further services needed to be engaged. The case that this Local Authority needs to read and absorb is that of Re W [2013] EWCA Civ 1227. Paragraph 101 includes the following passage from the judgment of Ryder LJ: ‘The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations’.

18. Finally, there have also been the difficulties about the guardian’s evidence.

19. Nature of the case - In my opinion, one of the most difficult types of family case arises when it is suggested that, if a baby remains in the care of a parent, the baby will suffer such future neglect and emotional harm that removal must be ordered. If the child is not removed and does suffer the anticipated neglect and harm the delay will add to the significant harm suffered by the child. It is an extremely difficult judgment call as to whether, with support, the parent might be able to care for a very young child to a sufficient standard.

20. There is no doubt whatsoever that this mother loves her child and takes pleasure in caring for him. He is developing well and has the usual attachment of a six month baby to his mother. Although her ‘interaction’ with him lapses on occasions (especially when she is depressed) there are many examples of very warm interaction between them. The judgment call is rendered even more difficult because mother and child have been living in a heavily supported, but essentially short-term, environment for much of the currency of the case, as provided by FM. This is undoubtedly a very difficult case.

21. The Local Authority contends that, once that short term arrangement is withdrawn (as it was when the mother moved into the flat), she is unable to care for herself, her home environment or her child. The mother has difficulty washing herself (having been abused as a child in the bathroom, she says), struggles with some basic living requirements and, when feeling depressed, causes her living environment to become squalid. It is said that, despite a very high level of social and supportive work when she lived in the flat, she was not able to engage or respond to it. It is also said that, although she has begun to engage in therapy (and has been doing so during these proceedings when the current evidence was being accumulated) it will take a long time before that therapy might have sufficient impact for her to retain the care of a child. Thus, despite her loving relationship with her son, the Local Authority says that there is no alternative to him being subject to the orders sought.

22. In evidence, the social worker, Ms FS, said that the overwhelming issue is that of the child’s safety. The Local Authority considers that the mother would not be able to keep him safe. Very belatedly (i.e. on 22^nd September and following an adjournment that day to get it) a document was filed by the Local Authority expressing in very summary terms, its perception of the ‘balance sheet of placement options’ and an analysis of support. The ‘balance sheet of options’ is a very superficial document. The analysis of support gives scant details of the services that are available in the area and suggests as follows:

i) ‘Poor hygiene / untidiness…she therefore need full time support to maintain an adequate environment. This is not feasible or available within the local authority longer term’

ii) ‘Lack of stimulation and failing to meet / prioritise Chd’s needs…She has declined Sure Start help…and is resistant to working with the Local Authority. M sometimes needs to be told things several times so visits would need to be frequent’;

iii) ‘Budgeting…it is not feasible for the Local Authority to continue to provide additional funds longer-term. They can continue to offer advice and support around preparing a budget’;

iv) ‘M’s engagement with professionals….It is not feasible for the Local Authority to withdraw completely given the risks to Chd. The Local Authority has not been able to identify any other service which they feel M would sufficiently and consistently engage with to properly monitor Chd’s wellbeing’.

v) ‘Post traumatic stress disorder – The Local Authority did as much as it could to assist M to access the counselling needed…the support M needs by way of counselling is available and feasible. It needs M to continue to engage in it’.

23. Thus, the Local Authority contends that the mother is not currently able to care for the child and that it would not be safe for her to be left to do so, despite her undoubted love for him. Efforts have been made to support her in parenting him but change has not been achieved. There is no prospect of her being able to change the standards of her parenting for a long time, it says. The underlying difficulty is not untidiness of accommodation. It is the harm that the mother has suffered in the past which leads her to a chaotic way of life; occasional trashing of her accommodation (for that is what it is) is a manifestation of that.

24. The guardian is of the opinion that there is a realistic option by which the child could remain with his mother in a way that would be consistent with his welfare. This would depend on the mother a) being supported in the future by the foster carer, FM, b) continuing with the therapy that she has undertaken and c) accepting support from a voluntary organisation called Home Start and others.

25. The mother says that the initial move from the foster home of FM to the supported accommodation at CE House was done far too suddenly and did not advice previously given by the expert psychologist in relation to the mother’s first child that any transition into the community should be phased (although it has to be said that the mother herself was keen to move into independent accommodation). She suggests now that she should remain at the home of foster mother and that there should be a phased move into independent accommodation where a package of support, including Home Start, should then be made available to her again, together with continued support from FM. She says that the support that was offered by the Local Authority came from professionals who had already made up their minds about her and were opposed to her retaining the child’s care. She has issued an application for an independent social worker to be instructed and to report by 19^th December 2014.

26. The Local Authority says that the type of package suggested by the mother is likely to result in the same failure as occurred previously and, further that the delay that would then arise would be contrary to the child’s welfare. The guardian says that there should be further evidence of the package that the mother proposes as it might be sufficient. The psychologist, Ms F, thought that the suggested package provided the best chance for the mother to care for Chd.

27. Re B and Re B-S - The case of Re B [2013] UKSC 33 lies at the heart of the jurisprudence concerning the making of care and placement orders and is thus of fundamental importance to this case. This child should not be deprived of the right to an upbringing with his mother unless, as a last resort, there are exceptional circumstances demonstrating that no other solution compatible with his welfare is available. Of the dicta in Re B the President, Sir James Munby, said as follows in Re B-S [2013] EWCA Civ 1146: ‘The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215 [22]’.

28. Options - There are two options in this case. Either the child will remain with his mother with supervision and support or he will be placed for adoption with his half brother, ‘1st Chd’. ‘1st Chd’ has been adopted by people who would be able to take the child who is the subject of these proceedings (‘Chd’). Plainly, given the dicta that I have already set out, this is not a case where a Judge should simply weigh up the competing perceived merits of him living with the mother on the one hand and him living with his half brother and adopters on the other. He has an existing natural and family life with his mother. In analysing those options I remind myself that he should remain living with his mother unless ‘all else fails’ (i.e. the ‘striking’ language of Re B applies to the need to keep him with his mother unless nothing else, consistent with his welfare, will do).

29. As I made plain to the advocates, I do not accept the basis of the approach that was suggested by the guardian in paragraph 9.2 of his report dated 14^th September 2014 at E97: ‘I consider that the positives in respect of Chd being placed with his half brother in an adoptive placement outweigh Chd living with his mother in the community’. In my opinion that is the very approach that Re B and Re B-S stress should not be taken in a case such as this and it would be appealably wrong if a judge followed that line of reasoning. When I read the report I immediately and instinctively identified that passage in the report as one that was not correct. That being so I raised the point immediately with Mr Fuller within five minutes of the start of the next hearing after its receipt. Mr Fuller thought that I was focussing too much on one sentence and ignoring the overview of the guardian’s report. When the guardian gave evidence it became very clear, through the perseverance and skill of Ms Evans, that I was not.

30. The mother – M has been assessed by Ms F as having a full scale IQ of 82 (although she says that she has 6 GCSE passes and a level two diploma in child care). She had a very unhappy and unsettled childhood. Her parents separated when she was about nine months old and she has no recollection of having contact with her father who has now died. M has one full sibling, a sister. Following separation from the mother’s father, her mother married a man when M was aged about three; that marriage produced three children.

31. M says she was neglected and mistreated by her mother and step father and that, when she was aged 12, the step-father began to abuse her sexually. She also says that, in 2010, she was also sexually abused by her step brothers. As a result of the allegations against the step-father, the Local Authority became involved and care proceedings were initiated in relation to M, her sister and half siblings. No care orders or findings of fact were made and no criminal proceedings ensued but M was accommodated under section 20 of The Children Act 1989 from the age of 13 (i.e. in 2004); the other children remained at home. M lived with a number of foster carers (she suggests eleven) until she eventually settled with carers with whom she apparently remains in occasional contact by telephone. She no longer has any contact with her natural family following the events that led to her being accommodated. M was supported by the Local Authority ‘Continuing Support Service’ until September 2012 when she attained the age of 21. That support then ceased.

32. On moving into independent accommodation (in about 2009) M plainly struggled with the basic demands of living, such as hygiene, budgeting and tidiness. A repeated feature of her adult life is that she messes her living environment, filling it with rubbish and also allows her own life, on occasions, to slip into lack of hygiene and disorder.

33. In evidence at this hearing, M said that, when she feels low, it reminds her of how things were when she was a child. She said the sexual abuse that she suffered as a child always seemed to happen when she was ‘low’ and she used to trash her environment when she was low because then people would not want to hurt her. It created a barrier around her. Now, when she is low, she messes up her environment in the same way. She finds it hard to trust people, she said but has grown to trust FM. The messing of her environment is not through lack of interest or laziness; it is a manifestation of her psychological functioning (I accept the psychological evidence on this point).

34. M had become pregnant with her first child, when she was aged 19. In the threshold criteria document relating to the proceedings relating to that first child it is recorded that ‘her life was frequently chaotic’. In a statement filed on 11^th September 2011 M said: ‘Prior to ‘1st Chd’s’ birth I did struggle to keep myself clean. My step-father used to abuse me when I was in the shower or getting changed and, as a result, I have found it very difficult to undress and bathe daily. However that is what I do now…I deny that I do not keep my home clean’. Unfortunately her assertions that she had changed were not correct.

35. ‘1st Chd’ – The subject child in these proceedings is therefore the mother’s second child. Her first child is now aged 3; his father is said to be X, although I note that in the threshold document relating to him that it is said that ‘[the mother] is unsure of his father’ and DNA testing was to be carried out to see if a Y might be the father. For the first four months of his life ‘1st Chd’ lived with M in a mother and baby placement with a Mrs BN. That arrangement has very many similarities to the arrangement that was made for M to live with Chd at the home of FM.

36. After two months at the placement with Ms BN, ‘1st Chd’ became subject to care proceedings that were started on 8^th September 2011, the Local Authority contending that M was caring for him in a neglectful and unsafe manner. The application for a care order contended at page 9 that: ‘The mother had a difficult childhood and is a survivor of sexual abuse. The initial assessment carried out after M became pregnant identified a number of concerns, including the mother’s poor self-care abilities, the mother’s vulnerability and the mother’s reluctance to engage with relevant services. Following ‘1st Chd’s birth on 4^th July 2011, the mother moved to a mother and baby assessment placement with ‘1st Chd’ on 8^th July. On 18^th July the carer at the placement found the room in which ‘1st Chd’ was being cared for in an appalling and dangerous state. Concerns about ‘1st Chd’’s care and the mother’s capacity to keep his environment acceptably clean and safe since then multiplied. Further, the mother has not been able to keep herself clean. The poor self-care evidenced by the mother before ‘1st Chd’ was born has been replicated in the placement since and now places ‘1st Chd’ at risk of harm’. Photographs, which I have seen, were produced to show the state of the room occupied by the mother, to reinforce the evidence about the state of the mother’s accommodation.

37. On 29^th September 2011 ‘1st Chd’’s case came before the court on an application by the Local Authority for an interim care order. The Local Authority proposed to separate mother and ‘1st Chd’ under its interim care plan. Due to lack of court time, the case was dealt with on the basis that an interim care order was made with ‘1st Chd’ remaining with the mother at the home of Ms BN pending the listing of a hearing when the issue of separation could be litigated.

38. On 12^th October 2011 ‘1st Chd’s’ guardian, Ms E, filed her initial analysis. She wrote that ‘the removal of ‘1st Chd’ from M’s care at this stage in her parenting of him would be destructive and counter productive. It cannot be in ‘1st Chd’s best interests to remove him from his mother’s care in their current placement when she is providing him with a good standard of direct care. The placement has provided the court and the Local Authority with that base line evidence. The parties now need to know whether M’s capacity to parent can be widened and strengthened to include improving her emotional health and exploring her ability to slowly function more independently over time’. Ms E therefore recommended that ‘1st Chd’ should remain subject to an interim care order but that he and M should remain together at the home of Ms BN. Ms E said: ‘It may be necessary for this placement to remain available to M and ‘1st Chd’ for at least the next six months to fully assess M’s parenting of ‘1st Chd’ in this therapeutic fostering environment and evidence M’s consistent ability to accept help and support, change her lifestyle and her entrenched behaviour patterns’.

39. On the strength of that evidence the Local Authority did not pursue separation and an order was made on 13^th October 2011 for the interim care order to be renewed administratively on the express basis that ‘1st Chd’ should not be removed from the mother’s care other than in an emergency or as a result of a court order. An order was also made for the instruction of Ms F, a psychologist who frequently reports to this court.

40. On 15^th November 2011 the psychologist, Ms F reported that M showed the manifestation of someone who had suffered multiple emotional trauma in her own life but that with sufficient support and therapy there was a ‘reasonable probability’ of a good outcome of her ability to care for ‘1st Chd’.

41. However, also on 15^th November 2011 (i.e. the very date of Ms F’s report) M left the home of Ms BN apparently saying that she could ‘not do this anymore’. On 17^th November 2011 the solicitor then acting for the Local Authority (Paul Foster, one of this city’s most experienced family solicitors) wrote to the court requesting the listing of an urgent hearing. At a hearing before HHJ Darwall Smith DL on 24^th November 2011 the Local Authority and the guardian recommended that the mother and ‘1st Chd’ should be separated; the mother opposed that course saying that she wished to remain in the placement with ‘1st Chd’ (and her solicitor, Tim Marks, filed a case summary on her behalf stating so). The learned Judge accepted the arguments of the Local Authority and guardian and an order was made that day continuing the interim care orders on the basis that the mother and ‘1st Chd’ would be separated and the mother would have supervised contact with ‘1st Chd’ four times a week. The final hearing was listed for the 4^th and 5^th January 2012.

42. In truly heartbreaking evidence M described the experience of losing the care of ‘1st Chd’ that day, the 24^th November, and how the experience that she had then leaves her deeply distressed whenever she is apart from Chd. She fears that she will never see him again.

43. In a report dated 3^rd January 2012 Ms F expressed the opinion that there had been a ‘definite deterioration’ in the care that M was giving to ‘1st Chd’. She also said that she did not doubt M’s wish to care for ‘1st Chd’ but thought that ‘personal issues’ were preventing her from caring for him adequately. Ms F expressed herself as being impressed by the insight that M showed and recommended that she should have regular and frequent contact with ‘1st Chd’. The report does not expressly state that Ms F recommended an adjournment of the case whilst M underwent therapy but that is probably implicit within the report.

44. The early part of 2012 brought additional distress to M. In January 2012 her father died and in February 2012 her grandfather died. Her foster grandfather died on 14^th February 2012 (later, her foster father died in April 2013). Added to that was the burden for a mother then aged 20 of going through care proceedings without support from members of her own family. Following the conclusion of the proceedings relating to ‘1st Chd’ she was offered help from ‘SWAN’ (post adoptive support group) but did not take it. I do not find it surprising that she felt unable to seek out therapy on her own and pursue the course of therapy that was recommended in proceedings that saw her losing the care of ‘1st Chd’.

45. The ‘final’ hearing was listed before HHJ Rutherford but the case was adjourned on the basis that the mother would access therapy through the local Community Mental Health Team and ‘1st Chd’ would be moved from Ms BN to a new placement, nearer to where the mother was living. The order recorded that the mother was to have contact four times a week and that the case would be reviewed by Judge Darwall Smith on 27^th January 2012.

46. On 9th January 2012 Ms F wrote a further report suggesting that attempts should continue to be made to see whether M could engage sufficiently with therapy to enable her to care for ‘1st Chd’. She said: ‘Obviously ‘1st Chd’’s timescales are a priority. But I believe that this mother should continue to be given the opportunity to show whether or not she can care for him’. On 18^th January 2012 a core assessment was carried out by the Mental Health Team; the report ended by stating: ‘I have admitted M to my case load and plan to refer her to the Psychological Therapies Service to be assessed for treatment. I also plan to develop a therapeutic relationship with M; to offer her emotional support and to further assess her current daily living skills’.

47. On the 27^th January 2012 the order records that the mother had been referred for therapy with the Psychology Therapy Service. The case was adjourned for IRH on 9^th July on the basis that the mother would have contact twice a week (a frequency that would be reviewed at the end of February) and that, if Mr O was ‘unsure about’ or denied paternity, he should undergo DNA testing ‘if he consented’. Following this order Y indicated that he did not want anything to do with ‘1st Chd’ and that he was unwilling to provide a DNA sample.

48. In February and March, according to the evidence that was filed by Local Authority in the proceedings relating to ‘1st Chd’, the community based assessment of M suggested that she ‘continued to present as chaotic’. During this month also M’s father and grandfather died causing her ‘a lot of distress and [to be] largely preoccupied with this’ (according to the social worker in those proceedings – see the statement of the social worker dated 22^nd June 2012). It also appears that the mother’s engagement with the mental health services was ‘poor’ and she disengaged from the community mental health team and therapy at that stage.

49. On the 26^th March 2012 a meeting of professionals took place at which Ms F attended. The meeting was followed by a hearing before HHJ Barclay. Due to the suggested inability of the Local Authority to arrange for the case to be considered by the adoption panel until May 2012, the timetable for IRH was re arranged so that it was listed to take place on 23^rd July 2012. According to a statement filed by the social worker in those proceedings, it was at that meeting that the ‘Local Authority decided to pursue a care plan of adoption. Psychologist attends and advises that she is doubtful that M can engage in therapy and achieve the necessary stability to care for ‘1st Chd’ within a suitable timescale’. According to that statement a ‘Looked After Child’ (i.e. LAC) meeting took place the next day at which the care plan for adoption was ‘ratified’ by the Local Authority and the mother’s contact was reduced to once a week. On 12^th June 2012 the adoption panel met and approval was given for the care plan for adoption. On 25^th June 2012 a care plan was filed which proposed that ‘1st Chd’ should be placed for adoption and M’s direct contact with him should be phased out.

50. The proceedings relating to ‘1st Chd’ were finalised on 23^rd July 2012 by His Honour Judge Barclay who dispensed with the agreement of the mother to the placement of ‘1st Chd’ for adoption under section 52(1)(b) of The Adoption and Children Act 2002 and made care and placement orders. ‘1st Chd’ was then finally adopted in October 2012. The threshold document in the proceedings relating to ‘1st Chd’ appears to be based on the then contemporary matters, rather than simply on matters that arose at the time that the proceedings started.

51. The threshold criteria document stated that ‘the mother appears to have been abused sexually and emotionally during her own childhood. She has not so far been able to access appropriate therapy to address the resulting consequential harm’. In a way that mirrors what is now being said by the Local Authority in these proceedings relating to Chd, the document also records that ‘the mother remains unable to keep her home environment safe and clean for ‘1st Chd’. The mother has on a number of occasions allowed or caused the child’s environment to be actively dangerous. ‘1st Chd’s room is frequently an untidy place for a young child’.

52. Chd – The Local Authority learnt that M was pregnant on 22^nd August 2013 following a referral by the midwifery service. She was then ten weeks pregnant. The social worker says at C4: ‘however this referral fell outside of the department’s unborn baby protocol and a further referral was not received until M was 32 weeks pregnant’. She had become pregnant in June 2013 at a time when she was homeless and said to be ‘sofa surfing’. On 15^th July 2013 she had obtained accommodation with Missing Link, an organisation that provides accommodation for the otherwise homeless.

53. As I have said, I have real difficulty with the Local Authority’s inaction at that point, whether it was protocol governed or not. It was utterly foreseeable that, if the mother was to have a chance of caring for the baby, she needed support in preparing for the birth. I do not understand why it was not offered then. The mother was then aged 22 and had all the disadvantages of her background and the extremely painful experiences of the proceedings and outcome relating to ‘1st Chd’.

54. The support began much later and, as it happened, the mother did not respond to it. On 26^th January 2014 a Ms CG became the health visitor for M. Her statement is at C54. It appears that M did not attend meetings with Ms CG prior to Chd’s birth [C56] and that the appointments that were made were missed by her. There is ante-natal support offered by the health visitor service and thus M deprived herself of that important support.

55. The Local Authority did not start its parenting assessment of the mother until 17^th February 2014 [C5] by which time it was expressing ‘concerns’ that M had not engaged in therapy since the proceedings relating to ‘1st Chd’ and there were reports from the ‘Missing Link’ housing association, with whom she had accommodation, that she was living in unhygienic circumstances and was having difficulty budgeting in that she was in arrears on her rent [C4].

56. Therefore, by the time that the Local Authority decided to involve itself the birth was only four weeks away and the mother, still aged 22 and without family support, was heavily pregnant. Unsurprisingly, the social worker thought that it was unlikely that M would complete the parenting assessment before the baby was born. Once again, M showed little engagement with the assessment and missed a number of appointments in relation to it due to forgetting one, attending dental appointments and the ‘need’ to sort out problems with her mobile phone contract [C5].

57. The view was taken by the authority at this stage that it would not provide parenting support to M. At C16 Ms Wa says: ‘The department has not provided any services to M since the date of the initial referral in January 2011 [sic – she means August 2013 presumably] other than social work support. A referral around parenting support is deemed inappropriate in this case due to the complex nature and the minimal change created given the previous and extensive amount of support provided to M’.

58. By that stage the Local Authority had already identified ‘1st Chd’’s adopters as ‘connected carers’ and proposed an arrangement by which the new born baby would be placed with them.

59. Thus, right from the start, the Local Authority took the view that the mother would not be able to care for Chd. By not providing services the Local Authority was itself contributing to the likelihood of failure and was shutting its mind to any possibility that the mother might have matured and improved since the end of the proceedings relating to ‘1st Chd’.

60. On 10^th March 2014 M moved to live at CE House (which is the flat in the supported accommodation that I have mentioned). This was four days before the birth; before that she had been in accommodation that did not allow children to live there. Following the birth she did not remain there for the twelve weeks that she lived with FM and in respite care but, as I will set out later, she then returned there.

61. Chd was born on 14^th March; M was on her own at the time of the birth. He was born five days before he would have been classed as ‘full term’. In its application for a care order, which bears the date of Chd’s birth (14^th March), the Local Authority said: ‘The Local Authority consider that as nothing has changed since the conclusion of the last care proceedings concerning ‘1st Chd’ and the Mother has done nothing to address her issues, the newborn baby is clearly at risk of significant harm if he remains in the care of the Mother at this time...the mother has accessed no support, therapy or assistance since the conclusion of the previous proceedings…the mother has not engaged properly with the Local Authority since it has become involved in respect of this new baby, with the mother attending only 2 out of 5 sessions, which formed part of the current parenting assessment.’

62. Following the issue of proceedings the case was listed before me for consideration of the Local Authority’s application for an interim care order under which it wished to separate M and Chd and place Chd with ‘1st Chd’ [C40]. It proposed that M should have contact with him once a week under supervision. I adjourned the hearing until 19^th March 2014 for further evidence to be gathered and for a contested interim care hearing with a time estimate of half a day [B24]. On 19^th March 2014, under some pressure from me and also on the basis of the Guardian’s recommendations that mother and child should not be separated, the Local Authority agreed that Chd should move with M to the mother and baby foster placement with FM. I gave directions for a further report to be filed by Ms F [B37].

63. On the 20^th March 2014, M moved with Chd into the home of FM; that is the same date that Ms FS became the social worker for Chd. M remained with FM for twelve weeks, until 3^rd June 2014, save for the two weeks in respite care in April. FM gave evidence in these proceedings and has also filed a statement [C50] about this period. She has very extensive experience as a parent and as someone who has worked with children and parents. I was deeply impressed by her. She has gone out of her way to support M and M says that she thinks of FM as the sort of person that she would like as a mother.

64. FM said in evidence that, when M first left her home (after the initial twelve weeks) she was 95 – 99% certain that everything would work out well. M was then doing really well with Chd and she did not foresee that things would end up as they are now.

65. In her statement, FM stated: ‘M was a very attentive and loving mum towards Chd. She always seemed to show him lots of attention and she was very aware of his needs. I had no concerns at all about the care she was providing Chd and I feel he had all of his needs met by M in the following ways…’ . FM then gave a very positive account of the mother’s care of Chd under headings of ‘basic care, stimulation, emotional warmth, health, social presentation, self care skills, budgeting and relationships. In relation to that ten week period, she says as follows in her statement:

i) M cared for Chd’s physical welfare extremely well – she fed him well, dressed him ‘immaculately, sterilised bottles appropriately, cared for him well during the night, got him into a good routine, was very patient with him and prepared very well for trips out;

ii) She stimulated him well, giving him appropriate attention;

iii) She showed strong affection for him, giving him hugs and kisses, soothing him when he was crying and telling him that she loved him;

iv) She met all of his health needs;

v) She kept herself neat, clean and presentable. She engaged well with the other adults in the home and was also ‘fantastic with’ FM’s three year old grandson;

vi) She looked after her own health appropriately and attended ‘any health appointment she was asked to’;

vii) She budgeted appropriately, living off approximately £30 a week together with child benefit.

66. On 1^st April 2014 the health visitor, Ms CG, met with M and Chd following their discharge from hospital. She noted warm and appropriate interaction between M and Chd. She recorded that Chd was clean and well dressed and ‘presents as a well thriving baby’. She also noted that M appeared clean and was interacting well with the foster mother. Ms CG gave evidence that the mother appeared to be Chd’s primary carer, not the foster mother during this period.

67. On 2^nd April 2014 Ms F wrote her report for these proceedings. It is at E31. It records that:

§ There was some support from the current psychometric testing for M’s suggestion that she had changed since the proceedings relating to ‘1st Chd’. She appeared to Ms F to have more self confidence and to have a more positive outlook on life. Ms F thought that M still showed some signs of post traumatic stress but that ‘her symptoms do not appear to be quite as marked as before’ [E37].

§ Ms F thought that, ‘at an intellectual level’ M has made some progress with the difficulties she has experienced in the past [E38]. She thought that the bereavements from which M had suffered would have slowed down the rate of potential change. She reported at E38: ‘M is aware of the deficiencies in her care of ‘1st Chd’ and is determined that these will not be repeated with Chd. I think that she is both sincere and plausible in this belief’.

§ Ms F said at E38: ‘It is possible that in a safe and protected environment such as a mother and baby foster placement she will succeed in giving Chd the care that he needs. However, I think there is a risk that the quality of her care will deteriorate when there is any stress in her life….the risk is that both his physical and emotional care will suffer’

§ She said that M acknowledges that she had not sought therapeutic help as recommended and that M gave a number of reasons for this – bereavement, homelessness, changes in accommodation and lack of support in accessing help [E38];

§ At E39 Ms F said: ‘In my previous report I felt that timescales were acceptable for ‘1st Chd’ as I believed there was a well established bond between mother and son, and that M on the whole was providing her son with reasonable quality care. The situation is rather different with Chd. He has no close bond with his mother and taking into account what has happened over the last two years I am less confident about M’s readiness to engage with therapy. However, her motivation is strong at present and if she is allowed to continue to care for Chd this could give her the fillip she needs to go through with the process. If she is able to keep her symptoms in check so that they do not adversely affect her behaviour then she could continue to care for Chd whilst undergoing treatment’.

68. On the 4^th April 2014 the Case Management Hearing took place. The order is at B50. I directed that there should be an IRH on 28^th July 2014 and that the final hearing should be listed on 14^th and 15^th August 2014. By agreement I directed that the Local Authority should file a full parenting assessment of the mother by 15^th July 2014 [B51].

69. On 11^th April 2014 M attended for an assessment with Lift Psychology. The report states that, following the assessment, M attended two-hour sessions of the Stress and Mood management course on 30^th April, 7^th May and 14^th May thereby completing the course [E44]. That course was the first step of three steps that Lift Psychology make available. Following that course, step two is ‘low intensity psychological interventions’. Step 3 would be ‘high intensity psychological interventions’. Since completing the first step, the mother has embarked on the second step (low intensity cognitive behavioural therapy’ with Oasis-Talk as I mention later - C128). I think that M deserves every recognition for the fact that, within a month of Chd’s birth, she engaged in this therapy.

70. The Local Authority parenting assessment began on 21^st April 2014 and was undertaken over twelve weeks [C47]. The assessment plans are set out at C45 and C47; the first part of the assessment took place whilst M and Chd lived with FM and the second part took place when the mother had moved into the community to live at CE House. The intention of the Local Authority was that the first eight weeks of the assessment should take place in the foster home and the last four of the twelve week assessment would take place in the community. However, it was felt that four weeks in the community would not be sufficient and the arrangement was changed to six weeks in the foster home and six weeks in the community. Ms FS said in evidence that M was keen to return to the community as M did not think that she needed to be in the foster home. Thus it was that six weeks after the start of the assessment M moved into the community at CE house.

71. That assessment has to be seen, however, against the background that the Local Authority has remained committed to the view that Chd and M should not remain together. The result of the assessment, therefore, was not surprising.

72. On 22^nd April 2014 Ms J, a ‘supervised contact worker’ for the Local Authority, visited the mother for the first time [I-7]. She was asked to visit her so as to report to the Local Authority on her parenting skills. She also helped her with the move from the foster home to CE House. She gave thoughtful evidence and was an impressive witness, although M says that she just did not like Ms J.

73. I accept from Ms J’s evidence that she made a genuine and full attempt at engaging with and supporting M. I accept her evidence that she did not just try to offer the mother practical support (e.g. the ‘nuts and bolts’ of keeping her flat tidy) but also that she tried to offer M the emotional support that she needed. I also accept that Ms J was part of a team in which others also made similar attempts.

74. Also visiting at least once a week was Ms B. She is a social work assistant with ten years of experience. She gave evidence as well and was another impressive witness. Ms B described very clearly how much personal support she had given to M and I have no doubt at all that Ms B went out of her way to do so. She gave that support on a personal and emotionally supportive level (for instance using her lunch hour to transport M in her own car and taking M shopping). Ms B was a kind and considerate witness and did her best to help M.

75. Ms B said that Chd is already moving around and picking up objects. Given the state of M’s flat that is a matter of concern for her because it exposes him to obvious danger. She thought that M would need a very high level of support if she were to care for Chd safely – someone going in at least once a day.

76. In readiness for the move to the flat, M was referred to the local Family Centre on 15^th May 2014. Later that day Ms B introduced M to one of the male workers there. On 21^st May Ms CG ceased to be the health visitor in readiness for the move to CE House. Thereafter the health visitors took over. Ms CG said that, from her observations when the mother was with FM, M cared for Chd well. At C65 she says that she regarded the placement with FM was one where M and FM had a good and mutually respective relationship with each other. She described FM as being a very caring woman, and I am sure that she was right to do so.

77. On 28^th May 2014 M was brought to the Children’s Centre by the foster carer, FM. She is recorded as appearing ‘nervous but seemed to do really well’ [H6]. There she met with Ms BS and spent time at the centre with other parents. The referral from the social worker, Ms FS, stated that M was to move into the community and needed support with understanding the development of Chd and general parenting. Ms BS gave evidence. She has worked for Surestart for seven years and is obviously committed and considerate in her work and in her approach to parents. She said that she thought that M needed emotional support and said that she tried to provide it. However, overall, she felt that M did not engage. She is therefore the third impressive and kind witness that I have now mentioned in this judgment who tried to help this mother but was not able to do so.

78. Surestart offers support to parents at the Children’s Centre and also outreach work where the family Centre workers go out to support parents. They run a ‘baby and me’ course which provides parenting and post natal support for mothers. They also run other courses. Ms BS discussed with M and Ms J which activities would be most suitable and there were also discussions between the Family Centre workers and the social worker about the support that the centre would offer.

79. In discussion between Ms BS and M, M said that she was keen to join the Baby and Me course and also engage in baby massage (the latter being on an outreach basis). She joined a Baby and Me group part way through, which she found difficult; she came twice and missed the 5^th June, 11^th June, 25^th June and 3^rd July [H5]. She was then offered a place on another Baby and Me course that started on 30^th July 2014 but did not attend at all, despite being invited to do so by Ms BS by email (email being the way that M asked to receive communications).

80. On 3^rd June 2014 M returned to CE House on her departure from the mother and baby foster placement [C67]. FM said that she helped M with the move but was told [sic] by the social worker, Ms FS, that she could help carry things into the flat but could not help M unpack. Ms FS said that she told FM that she should not do all of the unpacking for M but might help by watching Chd. I suspect that the difference in emphasis within this evidence is no more than miscommunication. However, I do not understand why these two adults, FM and M, were not left to sort this out for themselves and why any direction at all was necessary from the social worker. The manner in which it was received by FM is as stated by her during her evidence.

81. There was a two week lead-in to the move. Ms FS said that she and Ms J and Ms B prepared the mother for the move and planned for a higher level of support to be made available following the move. Ms FS asked M to draw up a list of what she needed; there were discussions as to whether the mother needed a baby monitor but M said that she did not need one, given that she would not leave Chd on his own. M was asked to buy a monitor and, since she had enough money to buy a Freeview box and a new pushchair, the assumption was made that she would have enough money to buy one. Eventually, on 5^th July, a new monitor was bought by the Local Authority for the mother; Ms FS said that if the mother had asked for help with this purchase earlier they would have assisted her with any financial shortfall. The absence of a monitor was linked in to evidence that the mother occasionally left Chd on his own in the flat whilst she went outside to smoke.

82. In evidence M said that she did not think that she needed the monitor because she understood it to be Ok to go out for up to ten minutes leaving Chd in the flat on his own. A great deal was made of this issue that was litigated out at length; in my opinion the mother was plainly wrong to leave a child of this age in the flat on his own without a monitor but I do not think that this issue is of such clamant effect as was being suggested.

83. FM said in her oral evidence that the move to community living when M left her foster home on 3^rd June was too sudden and should have taken place more slowly, particularly as M did not have family around her. It has to be said that the plan for M to move was debated at court on 16^th May 2014 and the move on 3^rd June was not controversial and, more than that, M was saying that she wanted to move into independent accommodation (as M accepts she was saying). After the move, M saw FM twice.

84. In relation to ‘1st Chd’ Ms F said at E18 in November 2011: ‘I believe there needs to be a very gradual reintegration into M’s own home. This should start off with M spending one day a week in her own home and then gradually increasing this to include overnight stays. I would envisage this process taking three or four months. M is likely to fail if there is an immediate transfer or if the process is rushed. …I do think that there is a significant risk that the quality of her parenting will not be sustained when she returns home. The risk of this happening will be that much more likely if the transfer is not carried out in a way that meets her needs…it would be advantageous for M and ‘1st Chd’ if the current foster carer were actively involved in the transfer’. It was contended by Ms Evans on behalf of M that the same must have applied to the move of the mother with Chd in June 2014.

85. Certainly Ms F said at E40 on 3^rd August 2014 in relation to Chd that the mother would need ‘more robust support for example with establishing routines’ when she moved into the community. At E72 Ms F said that ‘my opinion is that M might have been in a rather different position if the move from the mother and baby placement had been carried out at a much slower rate, if M had been able to continue to receive support from the foster carer and if engagement with childcare courses had started prior to the ending of the mother and baby placement. Sadly court timescales and Chd’s ultimate welfare do not allow for such a protracted assessment’.

86. FM also said that:

i) She would have helped with a more gradual transition period if she had been asked.

ii) M finds it very difficult to do things on her own but does not like large groups of people (such as Surestart groups).

iii) She would be available to assist the mother with a slower transition to the community if that were to be attempted now.

87. Ms FS said in evidence that this was the first time that the mother had lived in the community with a new child. It was appreciated that she would need a lot of support. Ms FS also said that the duration of the assessment had to fit in with the welfare considerations relating to Chd and also the court timetable. The move to CE House was not phased and FM was not asked to continue in any continuing supporting role although FM did say that M could ring her at any time (she lives about 45 minutes away from M).

88. In relation to the move, I agree that it would have been better if it had been more phased and if M had continued to receive the support of FM. The speed of the move was not opposed, however, when it was discussed beforehand at court. The real point, to my mind, is that the mother suddenly lost the support of the one person whom she trusted, FM. That, I find, was most unwise and regrettable. The mother did not have any close friends, was faced by the Local Authority wanting to separate her from Chd and moved into accommodation on her own with a young child with very little support except from the Local Authority (which was opposing her in these proceedings). M says that she felt as though the support from FM had been taken away from her when she moved and I can understand why she felt that.

89. The support worker at CE House is Mr DH. He filed a statement, which is C67, and attended to give evidence. He said that M’s flat was often cluttered but not ‘consistently dirty or unhygienic’. His ‘report’ states: ‘Aside the concerns above, M has engaged with CE staff well and has shown good practical skills. She is confident with making phone calls and booking appointments with other agencies…We have had no issues with her adhering to the…rules and she has not been involved in any incidents to date’ [ C68]. At one point there were arrears on her rent but, Mr DH said in oral evidence, she is now in credit. He said that she is good at making appointments and has good practical skills. CE House was being repainted at the time and residents were told not to open windows, despite it being hot.

90. Mr DH was kind enough to offer to help M to clean up the flat. He offered to help ‘and direct’ her with this task for two hours once a week. However, M declined the offer because she felt that it would be used against her; however he still remained available to her and did support her. I was impressed by his evidence. During this period there was input from Ms B, Ms J, Mr DH, Ms BS and the health visiting service.

91. Ms J said that M was unhappy about moving into CE House as she questioned how she would manage her laundry in the laundry room at the house when she had the care of a young baby. Ms FS said that this was the only occasion that she heard of when M expressed regret about moving there. Ms J did not think that it was a difficult place for a mother to live with a young child; there are other mother’s with young children there.

92. On some days after moving there, M refused entry to Ms J, usually saying that she did not wish to speak to her. Ms J said that M has not been able to maintain her flat well and has not responded to Ms J’s suggestions. She offered to help the mother to find a mother and baby group but she has declined. She has offered to help the mother to clean and sterilise bottles but M has declined; when Ms J offered to do it once herself M declined. When Ms J has asked M to sterilise bottles, she has said that she would do it later but then next day the bottles had not been cleaned.

93. Ms J said that, on one occasion that she visited, M became very distressed and was able to talk to her. This arose when M had to make arrangements for Chd as she had an appointment with Lift Psychology and M was distressed about the idea of leaving Chd with anybody when she did so.

94. Ms FS, the social worker, said that she visited on the day that M moved into the flat and it seemed neat or orderly. Ms J said that the state of the flat quickly declined after M went there and often was very poor. Rubbish, dirty milk bottles and clothes were strewn across the floor. She looked at the photographs at G306. She said that the photographs show the state of the flat as she found it to be and, she said, she probably took some of the photographs shown. Ms J said that she asked M to tidy up the flat and offered to help her do so. However, the flat was not tidied up.

95. Ms J said that she did not believe that M would ever harm Chd deliberately but she was concerned that her neglect of him would cause him harm. She said that she did not think that there was anything else that she could have done to help M. Ms B was visiting as often and frequently as Ms J; there have been visits at the weekend from members of Ms J’s team. Weekend visits would happen on at least one occasion, if not more, on every weekend for ‘several weeks now’ Ms J said. She said that there had been a lot of discussion about visiting M, due to the level of concern in relation to her and Chd. Her experiences of visiting M were replicated in the accounts of other members of her team.

96. Ms J said that she has personally offered M a great deal of support each time that she visits. She and the other members of the team tried to give M the support with organising her life and flat as well as giving her emotional support. For instance, when M would not let her tidy her flat she would attempt to talk to her about when M would not let her do so.

97. She said that, after the end of the parenting assessment (dated 15^th July 2014) the level of visits and support offered by her team has, if anything increased.

98. On 4^th June 2014, Ms J visited the mother at the flat. Her account of this is at I-150. Ms J said that she foresaw that the transition from the foster home to this flat would be difficult and that is why she visited so soon after the move. She reported that the mother was quite flat in mood and ‘not her usual self today’. Ms J said ‘M still had reasons why most of my suggestions were not viable’ [I-151] and thought that her flat was ‘not very tidy or organised’.

99. On 6^th June 2014 the Surestart worker, Ms BS who is based at the Children’s centre, visited the mother in her flat ‘to start baby massage’. Her record of the visit is at H1. She describes the mother as having been welcoming. The flat was ‘OK’ and clean. M appeared warm and caring towards Chd. Ms BS said that M ‘showed she was attached to him well’. It is thereafter that M missed Baby and Me / Baby Massage sessions on 11^th June, 19^th June, 25^th June, 26^th June and 3^rd July [H6]. Ms BS said that, by 3^rd July, it was plain that M was not engaging with her or the ‘Surestart’ work.

100. On 8^th June 2014 another worker in Ms J’s team visited the flat and found it ‘messy with a lot of dirty washing scattered around’ but she did not feel that it was dirty. Although M was initially unreceptive she became co-operative, says Ms Phillips [I-36].

101. On 9^th June 2014 Ms J visited again and found the mother to be more relaxed with her that day. She recorded that the mother was not managing to keep the flat clean. She said that she repeatedly spoke to the mother about the flat being so untidy as to be hazardous but did not see the mother being able to absorb the points she was making or put them into practice.

102. On 12^th June 2014 the A Health Visitor team took over as Chd’s health visitor. The health visitor was Ms CM but most visits were carried out by a student health worker, KF. Ms CM gave evidence and has filed a statement at C83.

103. On 13^th June 2014 the health visitor visited the mother and Chd at CE House. M appeared low in mood and the flat appears to have been rather messy. However, the health visitor noted ‘warm interaction’ between M and Chd [C62].

104. On 13^th June 2014 also Ms B visited the flat and said that its condition was beginning to concern her [I-43]. She expressed similar concerns on 20^th June 2014 [I-56] and 25^th June 2014 [I-65].

105. On 20^th June 2014, Ms B visited the flat and observed very positive interaction between the mother and Chd but said that the state of the flat still concerned her [I-35]. Ms B tried to discuss the need for the Local Authority to be involved and M recorded that ‘she did not like the advice that she has been given’. Ms B spoke to her about leaving a baby to sleep on a sofa and M did not accept what was said. Also Ms B said that M said that the Local Authority assessment was bound to be ‘rubbish’ and that Ms B’s wish to discuss stimulation and play was patronising [I-53].

106. On 25th June 2014 the student health visitor and her supervisor visited the mother and expressed concern that Chd appeared to be left in his buggy for too long. The health visitor’s oral evidence was that whenever she visited Chd was in his buggy.

107. On 1^st July 2014, Ms J visited again, after a period of two weeks leave. In her record of this at I-80 she said: ‘I have numerous concerns from today’s visit. M had left Chd unattended and in a dangerous situation. She did not acknowledge my concerns but became defensive and agitated. Her flat was in a terrible state and not just untidy but unhygienic as well. Not cleaning Chd’s bottles could have serious consequences for his health. Leaving him unattended the way she did was extremely dangerous and concerning. Again M was not prepared to acknowledge any of this’. Ms J had arrived to find M in the office with Chd having been left in the flat on his own with ‘loud music blaring from the lounge’ [I-80]. Chd was awake and on the sofa ‘surrounded by a duvet’. ‘The hallway was strewn with clothing and litter’.

108. On 2^nd July 2014 Mr DH of CE House wrote the letter at C67. He ended it by saying this: ‘It should be noted that RP has been feeling down due to the birthday of her first son coming up which has had significant impact on her mood and her willingness to engage. We feel that RP has sometimes been reluctant to ask for help in fear of being judged, or it being viewed as a negative, however, after recent discussions with staff at CE House, RP is beginning to realise that asking for help, and accepting support is a positive way of developing new skills. We hope to assist RP with addressing the issues of concern and help as much as possible’. Mr DH said in evidence that he felt that M had engaged well with him. He also says that she engages well with Chd and often spends time playing with him’. At the time, Mr DH said, there were concerns about the clutter and the mother going out for a smoke but beyond that the letter is positive.

109. Ms J visited that day. Her notes are at I-83. She recorded that ‘M’s flat was marginally tidier than yesterday…I continue to have concerns regarding her hygiene i.e. she still had a bowl full of dirty baby bottles and sink full of dirty dishes. M was still unable to acknowledge any of my concerns and became angry and abusive when I tried to talk to her’.

110. On 4^th July Ms B visited the flat and helped tidy it up. Its poor prior condition is described by Ms B at I-87. By the 11^th July 2014 the flat was once again unacceptable [I-98].

111. The 4^th July is also ‘1st Chd’s birthday. On the 15^th July 2014 M received the parenting assessment in negative terms from the Local Authority. This was therefore a very difficult time for M and, she says, that accounts for the state of the flat.

112. On 7^th July Ms CM and Ms KF, the health visitors, visited the flat. At C85 the flat is described by Ms CM as having ‘rubbish bags outside the bathroom, dirty nappies in nappy bags, a screwdriver, clothes, bibs, dish, towels, bottles of coke, lunchboxes, spoons and papers on the floor. In the sink were dirty pots, pans and plates. This left Chd with no safe space to play and have movement which is vital for his development’.

113. 8^th July 2014 – Ms J visited again and thought that there was a huge improvement – ‘not only had M made the effort to tidy her flat but her attitude towards me and her general mood had also greatly improved’.

114. On 14^th July the Local Authority received a referral from residents at CE house suggesting that M’s flat had ‘bags of rubbish, dirty nappies and cigarette ends on the floor’ and that it was ‘necessary to climb over things to get into the flat’. The residents suggested that M was neglecting Chd’s welfare, leaving him in dirty nappies and in his buggy for long periods. There were also reports that the mother was ignoring Chd when he was crying or needing attention [C72].

115. The Local Authority filed its parenting assessment on 15^th July 2014. It is at E46. Ms FS, the social worker says at C71: ‘it [i.e. the assessment] identified an accumulation of concerns in relation to M’s care of Chd relating to his basic care, safety, stimulation and emotional availability. The assessment identified that M had been unable to sustain significant change over the course of the assessment period and concluded that there is no evidence to suggest that she will be able to make such changes in a timescale appropriate to Chd. The parenting assessment recommended that M is unable to meet Chd’s needs long term and that Chd’s needs would be best met if placed with alternative carers’.

116. The parenting report itself expresses its conclusions in somewhat less finite and succinct terms. At E65 its conclusions and recommendations are expressed as follows:

§ It is clear that M loves Chd and there is no questioning her desire to care for him. M has demonstrated an ability to meet aspects of Chd’s needs. She has been observed to be warm and affectionate in her approach on many occasions, to be attentive and to show competence in aspects of his basic care, such as feeding, bathing and changing Chd.

§ There are, however, concerns that M has been unable to sustain a ‘good enough’ level of care throughout the period of this parenting assessment. M has failed to engage with local mother and baby groups and to take Chd out for regular walks and fresh air. She has struggled to maintain healthy routines and has failed to register Chd with a local GP. M has struggled to engage and accept advice from professionals, resulting in her becoming angry and upset. At these times, there has been concern that M has been less attentive and attuned to Chd’s physical and emotional needs. M has struggled to budget and provide essential equipment for Chd, resulting in her relying on significant support from the Local Authority. There have been concerns regarding the state of cleanliness and tidiness in M’s flat and safety concerns relating to M leaving Chd unattended and sleeping on the sofa.

§ It is acknowledged that M is a young mother, who is vulnerable as a result of the trauma and abuse which she experienced within her own childhood. It is positive that M has engaged with four therapy sessions with Lift Psychology; however it is recognised that M still has a long journey ahead of her to address issues relating to her past trauma and abuse.

§ It is the view of the Local Authority that M has been unable to make the changes necessary to meet Chd’s needs and there is no evidence to suggest that she will be able to make such changes in a timescale appropriate to Chd

§ As a result it is the recommendation of the Department that M is unable to meet Chd’s needs long term and that Chd’s needs would be best met placed with alternative carers’.

117. Ms J visited the flat that day [I-102]. She recorded at I-103: ‘Sadly, M has again showed her inability to maintain her flat. I know that Nicola had tidied and cleaned M’s flat with her. It was again in an appalling state of untidiness. Unfortunately she continues to decline my offers of practical help and does not seem to understand the reasons for keeping her flat tidy and more importantly the hygiene issues around Chd’s baby bottles. I do feel that M is genuinely frightened that Chd is going to be removed’. During the visit M became very distressed – this is when there was the discussion about who would look after Chd when she visited Lift Psychology.

118. On 16^th July 2014 the Local Authority received a report from KF that she had visited the flat on 11^th July 2014 and found it to be dirty and messy [C72]. Over the next days the Local Authority received reports that the mother left Chd in the direct sunshine too long [C72] and was showing little interaction with him [C73]. Ms J visited on 16^th July and recorded at I-107: ‘I was very concerned about Chd’s welfare today, when I arrived he was in a very hot room and had the sun on him and M didn’t seem to be aware of the impact that this would have on Chd. This then continued when M went into the garden with Chd being placed in the sun again…I am very concerned about the welfare and safety of Chd whilst in the care of M at this moment in time’.

119. On 17^th July 2014 Ms BS of Surestart came to CE House to do a group session with some ‘gloop’ (flour and water for children to play with). She says that M looked very unkempt and that there was no interaction or warmth shown by her to Chd [H4].

120. 18^th July 2014 the student health visitor attended and reported that Chd’s weight was then at the 50^th centile whereas it had been on the 75^th centile. In fact, looking at the red book chart, the drop was only slight, began whilst he was still living with FM, did not descend to the 50^th centile and picked up again by week 22. The guardian had studied this point about Chd’s weight and concluded that ‘weight was not an issue’; on what I have heard and read, I agree.

121. Ms KF noted that Chd was in a very heavy and wet nappy and was being fed when in his buggy, leading to him choking [C86]. It appeared to the student health visitor that there were indications that Chd was not being appropriately stimulated by the mother. She referred to the flat as being untidy – there were ‘cigarette packets, plates and nappies on the floor, bottles, unused nappies, rubbish bags and wraps of food in the kitchen area’. She formed the opinion that ‘this provided an unsafe and chaotic environment for Chd to grow and develop in’.

122. On the 24^th July 2014, Ms FS the social worker filed a statement in which she concluded at C80 that ‘It is the view of the Local Authority that Chd’s needs are not being adequately met within this current placement with his mother and there is no evidence to suggest that M will be able to make the necessary changes in a timescale appropriate to Chd. As a result, it is the view of the Local Authority that alternative permanency plans need to be made….It is the view of the department that Chd should be removed form the care of his mother as soon as possible to protect him from further significant harm’

123. On 24^th July 2014 the Local Authority filed its care plan for Chd [D17]. It proposes that Chd should be placed for adoption with ‘1st Chd’’s adopters. The care plan proposes that M’s direct contact should be phased out and that she should have indirect ‘letterbox’ contact twice a year [D21].

124. On 25^th July 2014 M began a course of Cognitive Behavioural therapy with Oasis Talk. She attended a second session on 11^th August and is due to complete the course of six sessions on 6^th October (having missed one session). This is the ‘second step’ of the process recommended by Lift Psychology. As to ‘Step 3’ it involves ‘up to 12 sessions of CBT or counselling’. Apparently the view has been taken that Lift Psychology will only discuss their progress there with M’s solicitor. There is a letter at C144 that describes in outline the course provided by Lift Psychology and a further email dated 22^nd September 2014 (in my bundle at C145); neither provides any glimpse into how M is progressing in therapy. The third step of therapy is the intense part [C144].

125. Ms F thought that the mother might well need more than twelve sessions but thought that, if she did, she may be able to access it at the end of the course (because referrals would flow from it). Ms F thought that a gradual introduction to therapy might well be appropriate due to the extent of the trauma that the mother has suffered in order that she might not be overwhelmed by it.

126. The case returned again for IRH on 28^th July 2014; the resulting order is at B77. By then the Local Authority had formulated its opinion that Chd should be placed for adoption and was suggesting that he should be separated from M. The guardian expressed his support for the Local Authority’s care plan for adoption but did not support the separation of mother and child at that IRH [B78]. By that stage the evidence should have been complete. The Local Authority should have filed its evidence in accordance with Re W.

127. On 30^th July 2014 the student health visitor, Ms KF, visited M and Chd at home. She says that M appeared ‘happy and smiling and was cuddling Chd and talking to him. She bounced him on her lap giving him eye contact’. Ms KF said at C89 that she regarded the flat to be untidy. The previous day M had brought Chd to be weighed and it was found that he was maintaining his weight above the 50^th centile.

128. On 30^th July M refused to attend Sure Start. Mr DH said that M found it difficult to join in with a group half way through its course of meetings particularly since the other children were older than Chd.

129. On 31^st July 2014 Mr DH checked the mother’s flat and says that he found it in a poor state. He contacted CYPS and someone came out to take photographs of the flat at G306. He said that the flat had deteriorated suddenly and the flat, on this day, was the worst it had ever been. He described it as chaotic with bin bags that had been tipped on the floor to the point where there was limited floor space. It was unhygienic and smelt. There were dirty bottles around the flat.

130. On 1^st August 2014 Mr Mr DH wrote an email which is a ‘log of concerns’. The log records that residents at CE house were expressing concern that the mother’s care of Chd was deteriorating and that she was not respecting the rules of CE House. There were tensions with other residents at the House and, Mr DH accepted, this must have made things very difficult for M as she felt that she was picked on. He said that having M in the house and dealing with her as a mother of a young child with Local Authority involvement had been quite a steep learning curve for him and, at times, he had felt out of his depth. He accepted that the ‘curfew’ for M requiring her to be home with Chd by 4.30 must have been difficult for her over the summer.

131. On 3^rd August Ms F filed her final report. In it she said that she continues to think that M has made some progress in her psychological outlook since she saw M with ‘1st Chd’. She thought that the evidence showed that M still continues to find it difficult to maintain her home in a condition which is sufficiently satisfactory to bring up a baby; she says that she regards this to be a result of M’s ‘psychological issues rather than a lack of motivation’. She considered that M had not been able to avail herself of the support that has been offered and regards M to be at the ‘preparatory’ stage in relation to therapy [E72]. She concludes her report by saying at E72: ‘My opinion is that M might have been in a rather different position if the move from the mother and baby placement had been carried out at a slower rate, if M had been able to continue to receive support from the foster carer and if engagement with childcare courses had started prior to the ending of the mother and baby placement. Sadly court timescales and Chd’s ultimate welfare do not allow for such a protracted assessment’.

132. On 6^th August the supervising health visitor filed her statement in which she concluded:

§ ‘On the dates that M was visited, the concerns that arose were shared with the social care team. M demonstrated that she did not want to follow advice given to her by professionals. She constantly omitted to register Chd at the Local General Practitioner’s surgery. Chd was not taken to have his immunisations and she was derogatory regarding Sure Start support.

§ She did not attend the Ear, Nose and Throat clinic. Chd did appear to have little idea how to respond to stimulation and interaction. However on a few occasions M did show that she understood the need to play, cuddle and talk to Chd. However, how often M did this is in question. As Chd did not demonstrate that this was pat of his regular routine as his response demonstrated this – he was slow to take the cuddly toy. The other indicators of the amount M stimulated him was the fact that Chd had a flat head because he had been left lying on his back for long periods and he did not cry on waking showing little or no attention from M when he had cried and shown that he needed a cuddle and someone to recognise that he was awake and needed feeding, stimulation and a cuddle.

§ M’s needs were prioritised over and above those of Chd e.g. she went out side to have a cigarette leaving him alone which is unsafe to do. M did not want to recognise this and became aggressive and angry when the health visitor tried to help her understand the risk she was taking by her actions. M did show neglect by not maintaining a clean and safe environment and leaving this on the floor that could cause injury for example a screw driver. M demonstrated that she was unconcerned with Chd’s choking by feeding him in a push chair. He was also found with dirt around his neck. Chd’s weight did drop on the centile line after leaving foster placement, although it was maintained on the 50^th centile’.

133. The hearing started on Thursday 14^th August 2014 and was adjourned on Friday 15^th. On the 16^th August the daily supervision that had been agreed at court began. The notes are in section I of the bundle. When the support worker arrived on 16^th August (I-1), Chd was lying on the sofa and, she says, the floors ‘in all rooms were covered in rubbish, nappies and food. There was nowhere for Chd to play and I could not see any toys for him to play with. M said that she was tired and did not want to tidy up. She made herself some chips for breakfast and sat in front of the television’.

134. On the 17^th the worker says at I-8: ‘M did not respond as well to Chd today, there were lots of times where he was looking to her for attention but M was oblivious to this even after me telling her’. On the 18^th, the flat was ‘relatively clean’ although there were remnants of food on the floor and it deteriorated through the day. Chd’s toys were dirty and M did not clean them; although she was observed to act warmly with him, her self care appeared to be rather low [I-15]. The next day M was observed to interact well with Chd [I-21] and the flat was ‘clean and tidy’ [I-21] but it was noted that ‘M needs lots of motivation and encouragement to keep the flat clean and tidy and to take care of her own personal hygiene’. There are no reports for the next two days.

135. On 22^nd August 2014, M went back to FM with Chd. FM was told that she should not assist M in caring for Chd on a day to day basis but the notes make it plain just how full a role FM has been playing with caring for M and prompting her when things needed to be done (e.g. telling her when Chd should be fed, how hot the room should be, how important it was to sterilise bottles and when her room needed tidying). The very careful notes taken by FM are at enclosure J of the bundle and read like an account of a mother supervising a young daughter’s care of a baby. FM also took photographs of the mother’s room in relation to the period when she was there following Chd’s birth and also following their return on 22^nd August. They show a room that was occasionally tidy but was often untidy and, at times, unsafe for a young child (as FM herself observed – e.g. J70 – a photograph taken on 11^th September 2014, eight days after FM had given evidence).

136. When FM gave oral evidence on 2^nd September 2014 she said that, initially, M had kept her room reasonably tidy but over the three days before the hearing resumed on 2^nd September, it had deteriorated; this can be seen in the notes and photographs between J23 and J40. She was asked to look at the photographs of the flat at CE House at G306 (taken on 31^st July) and said that those photographs had really shocked her. She described the mother as doing ‘quite well’ with Chd since they returned to live with her and said that M has been putting on fresh clothes every day. She said that she has not noticed her having a shower or a wash; she could not say for sure that M had not washed but said that she would know if M had showered because she would hear the boiler going.

137. FM said that the only aspect of her parenting that she would not describe as ‘good enough’ is her care of the bedroom. She gave a description of speaking to M about the state of her bedroom on the evening of 1^st September and it being much worse by the following morning; a bag of rubbish that had been outside the bedroom had been emptied out in the bedroom and there were empty cans and other litter around the room. So bad was the room that FM said that Chd could not be left to sleep in it, she said. She said that a toddler could not be in the room as he would pick up rubbish and cut himself on cans, etc. She said that Chd is already rolling and can move across a room when doing so.

138. The photographs from recent days show a room that is often untidy and cluttered. It appears to have improved from the state suggested by FM in the days before the hearing on 2^nd September and her notes do not suggest that Chd was unable to occupy the room.

139. The notes also reveal a warm and loving relationship between M and Chd. Further the note at J74 (relating to 12^th September 2014) states that, at a doctors appointment that day, ‘everything goes really well and they are pleased with his progress. He has put on just over a pound since he had been here and he is ahead of his age with his motor skills’.

140. The oral evidence of Ms F –Ms F repeated her view that the difficulties that the mother has faced (such as keeping her flat tidy) are a manifestation of her past trauma and difficulties. She thought that it would have been better if the transition from the foster placement to CE House had been more gradual. A gradual transition would not have made a difference to her underlying psychological issues but might have assisted her with her parenting and emotional support. The suddenness of the cessation of the support that the mother had from FM was ‘setting her up to fail’ within the community … ‘making it more likely that she would fail’. It was the process by which the emotional support that FM gave was suddenly ended that left the mother in this position.

141. She thought that the foster placement may have masked some of the mother’s difficulties. She said that the photographs at G306 show a messy flat which Ms F thought was unsuited for a young baby due to hygiene and, for an older child, would become dangerous due to the amount of clutter.

142. If the mother had therapy and had support by having her own accommodation within a family setting she might reach a stage where she could parent Chd independently but that would take ‘quite a considerable while’. M would also have to engage with proffered services, which she has not done in the past. She doubted that the mother can achieve a sufficient level of care of Chd within his timescales. But, she said, combine therapy with the sort of parenting and emotional support that might be available from some of the support groups available in the community might be sufficient.

143. She said, as she did in her report at E17: ‘most of all M needs someone to whom she can turn for emotional support’ and that this type of emotional support appears to have been given to her by FM. If it were possible to find, within the community, a form of parenting support for the mother (e.g. at the level that someone acting as if Chd’s grandmother) and combine it with therapy for her, it would give her the best opportunity to care for Chd. Such parenting support would need to be long term.

144. She said that M is motivated to accept the therapy that is now available through Lift Psychology and Oasis. It is perhaps understandable that, given the bereavement that she underwent in relation to her father, grandfather and the loss of ‘1st Chd’, she had difficulty starting therapy earlier. There appears to have been a deterioration in the mother’s care of Chd in about July which also coincides with the time of ‘1st Chd’’s birthday (4^th July).

145. She thought that, if the mother had been able to build up support within the community it is possible that ‘we might have been looking at a very different outcome’. It would have taken longer than 26 weeks from the time of Chd’s birth.

146. The guardian’s evidence – Before G gave evidence I had twice expressed my concern about the passage at E97 (paragraph 9.2). In the end I insisted that he dealt with the issue that arose (had he applied the wrong test?).

147. Initially, his evidence expressed full support for the Local Authority’s position. He said:

i) He remained of the position that he recommends the making of placement and care orders.

ii) He did not support the application by the mother for an independent social worker, Laura Heeds, to report. He thought that this would not provide any information that was not already available.

iii) Chd and M would have to remain in very heavily supervised surroundings (such as with FM) whilst that assessment was being carried out. Whilst in a very heavily supported environment she can care for Chd and so an assessment in that environment would be ‘pointless’. If the assessment was carried out at CE House the same result would be very likely to occur as occurred when she was there previously. He did not think that Chd would be safe in that environment. Even with the very high level of support that was given, a toddler (as Chd soon will be) in that environment would not be safe. Chd is already beginning to roll around the room, as G observed when he visited the foster home and saw Chd. At that age he will be picking things up, eating them and touching things that he finds.

iv) He considered the option of M remaining with FM and making a phased transition into independent living with support from Home Start and others. This possibility is considered by G at E95 as ‘Option 1a’. However, he said initially that this would involve M changing her ingrained behaviour and would leave Chd exposed to the risk of neglect and harm if she did not. He further stated that M has stated that she ‘wants social services out of her life’ and is unlikely to respond to supervision.

v) He also said that ‘recovery work from sexual abuse and counselling is only in the early stages and may therefore be outside Chd’s timescales’.

vi) He also observed what appears from the outside to be M’s lack of motivation to organise her life in way that was consistent with Chd’s welfare. He questioned how CBT would be able to ‘cure’ the extent of the difficulties that arise in M’s instance. G said that he thinks that there needs to be more than just CBT. She needs motivational input as well since she appears to lack the ability to put her wishes and feelings in relation to Chd into effect. The next stage of therapy is the demanding stage when she moves from the preparation to the ‘action’ stage. There is a long way to go; the work will have to go ‘well into 2015’.

vii) Further, he said initially, Chd cannot be expected to remain with his future unresolved for that amount of time. It could take a long time before improvements could be seen that would allow some understanding of whether, with therapy, the mother had made sufficient sustainable improvements to care for her child (E16, para 4). At E79 G said: ‘Ms F…further states that sadly court timescales and Chd’s ultimate welfare do not allow for such a protracted assessment. The Local Authority is of the view that any further changes in terms of mother are beyond Chd’s timeframe and I concur with this view given Ms F’s conclusion’.

148. However, the emphasis of his evidence changed dramatically and very surprisingly during cross examination by Ms Evans. He said that there are two possibilities. Trying to keep Chd with his mother on the one hand and placement for adoption on the other. There is an option that can be put in place which is consistent with the welfare of Chd that is an alternative to adoption. That is option 1a. That option may meet the difficulties that arise and may also address the emotional issues faced by the mother and meet some of the trigger events. It has to be recognised that the assistance that the mother had in the past came from the Local Authority. The sort of package proposed in option 1a might be enough to keep him safe. If option 1a is tested and fails it would have some ‘impact on Chd if it were not to be successful’.

149. He said that he considered with care FM’s evidence and the offer of support that she gave to M in the community together with the offer of support from Home Start. He said that this seemed an important arrangement to consider given the fact that the mother was not happy with the help that the Local Authority had offered. FM would need the full resources of the Local Authority and would mean that she was offering support not as a foster mother but as a community support worker.

150. In 25 years of social work, he said, he had only seen one other person who behaved like the mother has I relation to her accommodation; that was in the case of a 16 year old who messed her environment for the same reasons as those expressed by M. The basis of the mother’s behaviour is irrational and that irrationality will take a long time to cure.

151. On the morning of 24^th September he had obviously given a lot of thought to the case overnight. I asked him to tell the court his current recommendations. He said that he thought that the mother may be able to make necessary changes in Chd’s time frame and may already have moved in her therapy from the preparation stage to the action stage. Therefore, he said, this is a case where purposeful delay might well help in reaching the right decision. He said: ‘in relation to Chd’s timeframes we could be able to see whether she is into the action phase of the counselling’.

152. G did not oppose my suggestion that, if his oral analysis was right, further evidence needed to be filed by FM (as to exactly what form of involvement she was prepared to have), Lift Psychology (as to the progress of the mother in therapy), Home Start (as to the support that it could offer) and Ms F (as to her views in the light of the then available evidence).

153. Law - I remind myself of the following principles of law:

i) I must apply the relevant statutory and Convention provisions and must do so in accordance with the guidance given by the higher courts - EH v Greenwich [2010] EWCA Civ 344 "…the best guidance which in our judgment this court can give is to advise Judges to apply the statutory language with care to the facts of the particular case. The message is no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that."

ii) In relation to the application for a care order, I must first consider whether the threshold criteria in section 31(2) of The Children Act 1989 are fulfilled.

iii) Where the threshold criteria are fulfilled it is necessary to consider the provisions of Article 8 of the European Convention on Human Rights and section 1 of the Children Act 1989 when deciding whether to make the care order sought.

iv) In relation to the placement application I must consider the terms of section 52 (1)(b) and section 1 of the Adoption and Children Act 2002. The welfare checklist in the 1989 Act is not the same as the checklist in the 2002 Act. Article 8, of course, is also further and significantly engaged in relation to the placement application.

v) The court must conduct a global, holistic approach to welfare issues weighing up the various available options before it. The court must avoid a linear analysis of those options because that can lead to the piecemeal elimination of the least interventionist solutions, leaving the most interventionist solution of a placement order as the only remaining solution - Re G (A Child) [2013] EWCA Civ 965, paras 49-50;

vi) Further, where care and placement applications are made it is better for the court to conduct a combined welfare analysis of the applications rather than considering the care application first and separately from the placement application. Otherwise, if the less interventionist care order is made it may lead to a placement order being made without sufficient consideration being given to the welfare checklist under the 2002 Act and also without there being the necessary holistic analysis of the real options before the court (here adoption or supported placement with the mother);

vii) Article 8 of the European Convention on Human Rights states that: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …for the protection of health or morals, or for the protection of the rights and freedoms of others.’

viii) Care orders amount to a very significant invasion of the rights encapsulated within Article 8(1). Placement orders amount to an even more significant invasion of that right than care orders. For such orders to be justified they must satisfy the provisions of Article 8(2) and therefore must be: a) in accordance with the law (here the Convention compliant 1989 and 2002 Acts); b) necessary for the protection of the rights and freedoms (i.e. welfare) of others (i.e. the child) and c) proportionate.

ix) Welfare issues must be based on the totality of information available to the court and, unlike threshold issues, it is necessary to conduct a contemporary evaluation of what is best for the child concerned.

x) By section 1(1) of the 1989 Act the welfare of Chd is the court’s paramount consideration when considering the making of orders under that Act following the satisfaction of the threshold criteria. Section 1(3) of the Act contains the welfare checklist. It provides that, in making welfare decisions under the 1989 Act, a court must have regard in particular to —

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) The range of powers available to the court under the Act.

xi) As to the 2002 Act, children may not be placed for adoption under placement orders without the consent of the parents unless "the welfare of the child requires the consent to be dispensed with" (section 52(1) (b) Adoption and Children Act 2002). The core statutory provisions in relation to placement orders are therefore sections 52 and 1 for the purposes of this judgment (although there are of course many other provisions in the Act relating to such orders).

xii) The case of Re P (children) (adoption: parental consent) [2008] EWCA Civ 535, [2008] 2FCR 185 provides useful guidance in relation to applications for placement orders. The main and relevant principles for these purposes are set out in paragraphs 119 to 154 of the judgment of Wall LJ. Those principles are summarised in the case of EH v Greenwich [2010] EWCA Civ 344. I wish to mention the following three points that arise from Re P (although I have considered the case as a whole):

a) In considering the provisions of section 52 I must consider section 1(4) of the 2002 Act (as explained in EH v Greenwich);

b) The word ‘requires’ in section 52 is ‘plainly chosen as best conveying the essence of the Strasbourg jurisprudence’. That is, it implies an imperative rather than something that is merely optional or desirable. Ryder LJ summarised the position in the case of Re R [2013] EWCA Civ 1018: ‘So far as section 52 of the 2002 Act is concerned, the judge had to be satisfied that the welfare of each of the children required their parents’ consent to be dispensed with. In other words, their welfare necessitates adoption and nothing else short of that will do’.

c) Section 1(4) of the 2002 Act is not the same as section 1(3) of the 1989 Act. The welfare checklists are different in several important respects, especially s 1(4)(c) and (f). The court should therefore work through section 1(4) of the 2002 Act when considering whether to make a placement order.

xiii) The relevant parts of Section 1 of the 2002 Act provide as follows (I have not included ss 5):

(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4) 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.

(5) …

(6) The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances…

xiv) It is of fundamental importance that there is discipline in the approach to welfare issues in care and placement proceedings. The court is not a court of social engineering. The court does not decide welfare issues by considering whether, on an individual judge’s analysis, a child might be considered to be ‘better off’ in care or adoption. Nor does the court apply a test of whether a child will receive ‘optimal care’ with a given parent since there would be many parents who would fail that test. Thus the court must not approach a case such as this by asking whether, on balance, a given child would be better off with adopters or with a parent.

xv) The dicta that I have already set out from Re B-S (and which have their basis in the judgments of Lady Hale, Lord Wilson and Lord Neuberger in Re B [2013] UKSC 33) must be applied. For myself I find the passages from the judgment of Lord Neuberger in paragraphs 77 and 78 of particular assistance. They include the following at paragraph 77: ‘It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests’.

xvi) Although care proceedings are quasi inquisitorial (see Re W [2013] EWCA Civ 1227), it is for the Local Authority to justify its applications and to substantiate its proposed care measures on evidence – P, C and S v United Kingdom [2002] 2 FLR 631.

xvii) No party suggests that long term fostering presents itself as an option for Chd. I agree that that is so. Black LJ said as follows in the case of Re V [2013] EWCA Civ 913:

· [95] My difficulty with that is that I do not think that fostering and adoption can, in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue.

· [96]. With that caveat, I make the following observations:

i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.

ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.

iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact.

iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).

154. Threshold - There can be no doubt that, at the time that the Local Authority took protective measures (that is, on the date of Chd’s birth) he was likely to suffer significant harm which was attributable to the care that was likely to be given to him if an order is not made, not being what it was reasonable for a parent to give him. As that time there was a very strong likelihood that Chd would be neglected given a) the mother’s emotional functioning and lack of therapy; b) the results of the proceedings relating to ‘1st Chd’; c) the mother’s tendency to mess her accommodation when stressed and d) the mother’s lack of support.

155. As to the welfare issues, I am being asked to make life changing orders in relation to a six month baby. There are only two options. Either he continues to live with M in a very supported environment or he is placed for adoption. No party contends that long term fostering is suitable; it is plainly not an available option in this case.

156. I do not consider it remotely satisfactory for a decision to be made on such important issues where the evidence has swung so considerably during the course of the hearing from one extreme to the other. As I said to counsel, a canny judge could easily construct a judgment in this case deciding it in either way. But that would not mean that the right outcome had been achieved. Further, where a case does swing as much as this, it is necessary to consider it with some dispassion to ensure that all the evidence that is needed is before the court and that the court has judged all of the evidence properly.

157. I do not feel able to conduct the correct legal analysis on the basis of the current state of the evidence. I do not see how I could analyse the factors under the welfare checklist properly on what I now have before me. I need to know more about the position of FM, the progress of therapy, the potential input from Home Start and the views of Ms F on what has now been said.

158. I am not impressed by the Local Authority’s parenting assessments since the outcome of those assessments was signalled before Chd was even born; the Local Authority was never going to support him remaining with the mother and didn’t.

159. I am disappointed with the changes in the guardian’s evidence, especially as they occurred when they did; other parents faced with the recommendations on paper might just have given up.

160. I am very impressed by the evidence of FM who has shown great humanity and tolerance with M and should not feel under any pressure at all to maintain involvement with her, Chd or this case if she does not want to– she has her own family and her own life to lead. However, if she does wish to remain involved I would like to know what she would wish to offer. It would be terribly unfair and a very great discourtesy to FM if I gave a judgment in this case only for her to say: ‘I wish I had known because I would have been prepared to offer more’. For that reason I think that it is essential that she sees this judgment as a whole and I order the Local Authority to show it to her; she will understand its confidentiality. I wish to thank her for all that she has done and the exceptional quality of her evidence.

161. Of the professional witnesses that I have heard the most impressive of all have been Ms B, Ms J, Ms BS, Mr DH and Ms Ms F. I consider that they each gave measured, considerate and careful evidence. Given the contents of the evidence of those witnesses I am not sending out any messages that care and placement orders can be avoided in this case. Despite the Local Authority’s very flawed procedures and approach to this case, Ms B, Ms J, Mr DH and Ms BS did what they could to support M and M was not able to engage with them.

162. However, I accept that, if M feels supported in the way that is being proposed, there is a possibility that evidence might be forthcoming that shows that she might change sufficiently so as to be able to care for Chd. I therefore intend to adjourn this case for a few weeks whilst that evidence is gathered.

163. The adjournment will take this case over the 26 week period. That is necessary because of the failings in the evidence before me. Those failings come from the Local Authority and also from the changes in the evidence of the guardian. I do not intend to let this case drift indefinitely. I think that leaving decisions about Chd’s future until next year would be harmful to his emotional welfare and should only occur if there is no other solution. So I make it plain to all parties and witnesses that they should not see a lengthy delay of decisions in this case as being an available outcome unless there are truly compelling reasons. That is not because I am hide-bound by any so called ’26 week rule’. It is because I think that a child of this age must have his future resolved with expedition for otherwise delay of itself causes him harm. If he were to keep attaching to his mother only to have those attachments to his mother severed when he is about twelve months old might not cause him visible and immediate harm but could well have very significant consequences for his future emotional and psychological development.

Stephen Wildblood QC

24^th September 2014.

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Chd (A Child: Care and Placement Orders) [2014] EWFC B125 (24 September 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B125.html Cite as: [2014] EWFC B125

England and Wales Family Court Decisions (other Judges)