Neutral Citation Number: [2009] EWMC 15 (FPC)
In the County Court
Before:
The District Judge
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Between:
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X Local Authority
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Applicant
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A Mother
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Respondent
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Hearing dates: 18/12/09
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Application
- This case concerns a
seventeen-month-old male child who was made the subject of a final care
order at an Issues Resolution Hearing on 18 December 2009; immediately thereafter he was made the subject of a placement order.
Chronology
- The child's mother has just
turned 22 years old. She had a number of short-lived sexual relationships
before the child's birth, and -- at various times -- she has told the
local authority the names of different men whom she asserts to be the
father. The first was a former boyfriend who treated her with violence;
the next, an uncle; and the last was a former boyfriend with whom she
continues to spend time. Opportunities have been given to these men to
undertake DNA testing to determine paternity; none of them wished to have
anything to do with the child and, despite promises to cooperate and
repeated opportunities given, no scientific sample has been supplied. I am
satisfied the local authority has done all within its power to obtain
cooperation from the putative fathers; and I record, for the purposes of
these proceedings, that the child's father is unknown.
- The child's name was placed on
the child protection register from birth. There were two main reasons for
this; the first related to the mother’s family, various members of whom
have Schedule One status as a result of sexual offences against children
and physical neglect/harm; the second arose out of concerns about the
mother herself, arising from her chaotic lifestyle, drug and alcohol abuse
and self harm.
- Three months after the child's
birth, the mother moved (with the child) into her own accommodation in an
area of South Wales previously unknown to her, but at a deliberately
significant distance from where the maternal family lived in order to
distance her from them in her (and the child’s) best interests. She
entered into a new relationship which proved volatile and came to an end.
She gravitated back to the maternal family (against local authority
advice); she initially resided with her brother and then with maternal
grandmother, (who is about to move to smaller accommodation at which there
will be no room for the mother).
- It was from the maternal
grandmother's address on 7th March 2009 that the child was
removed under a police protection order prompted by the palpable risks to
the child arising from a combination of the mother's binge drinking and chaotic
lifestyle and her permitting contact between the child and members of the
family who were Schedule One offenders, (despite knowing of the dangers).
- She had been given warnings to
avoid such contacts - repeated in December 2008, and January and February
2009, when she was found to be staying with such relatives. She entered
into a child protection agreement with the local authority, expressly
recording her agreement that she would not allow her son to have contact
with those members of the family who were Schedule One Offenders. On the 6th
March the local authority collected mother and child from the address of
maternal family she had agreed not to visit, and returned them to their
home. But, in direct contravention of that agreement, that very same night
(or very early the next morning, 7th March) she took him to
stay with the very people she had agreed to avoid; which led to the police
intervention which precipitated these proceedings.
- Mother did not actively oppose
the recitals in the threshold document relied on by the local authority.
The threshold document detailed numerous changes of the mother’s address
over the last two years, and a multitude of her short-term relationships
which are characterised by constant argument between her and her various
partners; none of which is conducive to establishing a stable lifestyle
for the child.
- The mother also accepts that
she failed to keep appointments with health visitors and other
professionals concerning the child; and she has failed to prioritise her
own medical needs – which, in turn, impacts on her ability to care for the
child.
- During the course of these
proceedings a Consultant in Substance Abuse was appointed so that mother
could undergo drug and alcohol testing. A blood and hair analysis of the
mother taken at the end of May 2009 recorded her as screening negative for
all drugs in the months commencing 13 February 09, and as disclosing no
biochemical evidence that she was drinking excessive alcohol on a regular
basis. But she failed to attend various appointments thereafter and
therefore no final report has been forthcoming. There is a body of
anecdotal evidence, including admissions volunteered by the mother, of
occasional binge drinking.
- An independent social worker
was appointed to assess mother’s ability and her report contains some
positives; mother was affectionate and emotionally warm towards the child
and has some parenting capacity. But the report concluded that the mother
had not been able to find any stability for herself, and this - coupled
with her poor mental health, poor physical health, her alcohol use, an
erratic and unstable lifestyle, gaps in her parenting ability and in her
sources of support (which, emanating from her family, had their own
difficulties in relation to sexual harm, violence and substance misuse), -
caused the independent social worker to conclude that the prospects of
successfully reducing those risks ranged from poor to very poor; and the
independent social worker could not support the return of the son to his
mother.
- A consultant psychologist also
assessed the mother. She concluded that the mother was exhibiting symptoms
of post-traumatic stress disorder which had its origins in her childhood
and which had persisted into adulthood and developed into a borderline
personality disorder. Exacerbated by the use of alcohol and drugs this
disorder manifested itself as depression and self harm. Paradoxically,
whilst the mother appeared to understand the risks posed by the maternal
family, she continuously gravitated back into their sphere of influence
and had almost no capacity to avoid them. She has difficulties in
regulating her emotions which leads her to act impulsively “by drinking
excessively, hurting herself, causing a row, over-reacting…” Moreover, she
is completely resistant to help from therapy or treatment, which is
attributed to the instability in the mother's life and the absence of any
reliable support systems. The psychologist concluded that she has
extremely limited capacity to change, both now and in the foreseeable
future. This is consistent with what the mother told the Guardian in
October 2009 when the mother characterised mental health services as being
"as dopey as hell; they don't do anything anyway … I don't need
counselling, my past doesn't affect me."
- The history of the mother's
compliance with the contact opportunities given to her since March 2009,
sadly, also speaks volumes. Contact was originally arranged for three
occasions a week but at the mother's request this was reduced to once a
week from August 2009 onwards; and this was subsequently reduced to once a
fortnight. Mother has only attended three sessions in the last six months,
the last occasion being two months ago at the beginning of October
(including her missing a contact visit specially arranged for the child's
first birthday which fell on a Saturday).
- The mother attended court. She
lodged a statement in which she explained how she dearly loved her son but
recognised that she could not offer him the stability which he needed. She
could not bring herself to consent to the orders sought, but she
understood why the court was prioritising his needs for security and
stability. She asked that one day her son should be told that his mother
had made a massive sacrifice; she had made the decision not to fight for
his return to her because she recognised his best interests lay with his
being given the opportunity to start again with a new family.
- Whilst praising her courage in
coming to court and giving that instruction to her legal representatives,
I am bound to add something lest the child should read this judgment when
he is an adult and questions whether enough was done in his first 18
months to encourage and support this mother to achieve her parenting role.
I don’t wish to be churlish about her expression of sacrifice, but, from
my reading of the overwhelming evidence, I am satisfied that this mother
was effectively submitting to the inevitable when she ceased her
opposition to the orders sought.
- The records show that the local
authority delayed instituting these proceedings for many months whilst
trying to engage with and support the mother in the clear hope of
inculcating a full understanding of the risks and securing sufficient
improvement in her behaviour to be able to leave the son with her. But she
found herself unable both to prioritise his needs and to assume the heavy
responsibility for parenting her son which has made their separation
unavoidable.
- Standing back from his
identification of the child’s best interests, the Guardian has also
expressed his concerns about mother’s ability to cope with life in general
terms. For instance, she has failed to process her benefits claims and she
has missed various medical appointments. But he was mainly concerned at
her chaotic lifestyle and the mental health issues in this case
(identified above) as a product of which she self-harms. In mid November
2009 she harmed herself after an argument with her brother, having to have
27 stitches put in her arm; in mid-December 2009, a boyfriend reported
that she had self-harmed on 10th December (which she denied).
She has also reported that she has suffered three miscarriages since June
2009; but, despite the toll that such pregnancies are taking on her, she
still neglects to use any contraception. She has become her own worst
enemy and must realise that, however damaged she may be by her own past
(which others see but she says she is unable to see), there comes a time
when she has to assume responsibility for turning her own life around;
resistant to help as she has been, no one else can do that for her. But I
am gratified that there is one note of optimism, for in November 2009 the
mother reported that she now sees a community psychiatric nurse on a
monthly basis, and I hope the mother will find that service to be of real
benefit to her.
- In addressing who else from the
family might be able to look after the son, the mother spoke of a
step-cousin; a full assessment was started – but she later withdrew. The
maternal grandfather and his partner put themselves forward, but the
assessment of them was negative; and it was recommended that their
application be not progressed - which was a conclusion they accepted. The
maternal grandmother said casually to the Guardian on a couple of
occasions that she would be prepared to be assessed (despite her past
history of convictions for wilful neglect of her own son and daughter),
but she did not ever pursue the Guardian’s suggestion that she communicate
that offer to the social worker, or engage her own solicitor; and, in
part, that decision may have been influenced by the mother helping her own
mother to recognise that the grandmother faced substantial difficulties.
No-one else has put themselves forward from the family
- The local authority made
application for a Care Order under section 31 (1) of The Children Act
1989, and in its final care plan (annexed to the order) the local
authority recommends adoption. I stress that the child’s welfare is my
paramount concern. I have to take account of all matters recited in the
welfare checklist as set out in section 1 (3) of the Children Act 1989,
and I have done so; but to the most salient I allude below.
Welfare
Checklist
Age, gender & background characteristics
- This white, Welsh
seventeen-month old male baby has been living with his foster family since
7th March 2009 (which is “the relevant date” for the purposes
of section 31 CA 89).
Physical,
emotional and educational needs
- He appears to be meeting his
developmental milestones. He is a happy and contented child. His physical
emotional and educational needs are being met by his foster carers with
whom he has been living since birth. He has settled with the foster carers
and is reported to be thriving.
- As to contact the mother has
attended only a few of the offered contact sessions; it may be that,
having realised that his best interests lie in adoption, she may
instinctively have recognised that she would find it most upsetting to
have to say a final goodbye to him; and has thus not taken up contact in
self-protection.
The
likely effect of any change upon the child
- The child certainly needs to
grow up in a family where his developing needs for good quality care and
nurturing and support will be met in full so that he is given the security
of living in a permanent and settled family unit. He has formed
appropriate secure and loving attachments with the foster carers and it is
reasonable to anticipate that he will be able to transfer these
attachments to an adoptive family.
Any harm which the child has suffered or is at risk of suffering
- The child is likely to suffer
significant harm as a consequence of the mother's chaotic lifestyle, her
own mental health issues (including self harm); her failure to prioritise
his needs over her own; her inability to adhere to the child protection
agreements which has led her to facilitate contact with several schedule 1
offenders; and her failure to attend contact sessions which the
psychologist regarded as being emotionally abusive of the child.
Capability
of meeting the child’s needs
- As the Guardian observed in his
report, the mother loves the child and considers him the best and most
positive thing in her life. Sadly, however, it appears that the mother's
historical experiences have deeply impacted upon her ability to provide
appropriate care for her son. As I have recited above, the local authority
have assessed the mother as not having the capacity to meet the child's
needs; the independent social work assessment identified a number of risk
factors which had either poor or very poor prognoses for reducing those
risks; and in consequence, concluded that the mother was not able to meet
the child's needs either now or in the foreseeable future; and the
Consultant Psychologist was not sanguine of the mother being able to
exercise any ability to change her parenting capacity either now or in the
foreseeable future.
- I emphasise that it is not
necessary for the court to attribute blame for this situation; the mother
might well be trying her hardest and yet still may be failing to meet the
needs of the child, thus causing him significant harm.
- Whilst two other family members
were considered as potential carers for the child, for the reasons I have
explained above they did not proceed; and no other family members are
seeking care of the child.
Wishes & feelings
- At seventeen months, the son is
not yet of an age at which his wishes and feelings can be ascertained. I can
assume that this child would probably wish to be cared for by his birth
family – for, in general terms, every child is better off being raised within
his family of origin, if at all possible; a child has a right to be
brought up by his natural family unless there are cogent reasons why it is
not in his best interests for that to happen. And cogent reasons exist in
this case.
Articles
6 & 8.
- I have firmly in mind Articles
6 and 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950: which set out the right to a fair trial and
the precept that every citizen has the right to enjoy a private family
life free from the interference of the state unless there are proper and
sufficient grounds to intervene.
- K. v. Finland [ 2003] 1FLR 696 sets out the precise terms of the relevant Articles and the judgment
makes it clear that;-
(a) any order
related to the public care of the child has to be capable of convincing an
objective observer that the measure was based on a careful and unprejudiced
assessment of all evidence on file, with the distinct reasons for the care
order stated explicitly;
(b) the
reasoning adopted has to reflect the careful scrutiny which any court could be
expected to carry out by balancing the evidence in favour and against making an
order; and
(c) there is a
positive duty to take measures to facilitate family reunification as soon as
reasonably feasible but that has to be balanced against the duty to consider
the best interests of the child.
- I conclude that family
reunification is not feasible in this case and that it is in the best
interests of the child for an order to be made. I now consider what that
order should be.
Range of
court powers
- In the absence of application
for any other orders, the options facing the court are to make no order,
to make a care order or to make a supervision order; I agree with the
Guardian that this is not a case in which the court can properly conclude
that it is in the child's best interests for it to make no order.
- S. 31(1) of the Children
Act 1989 states that “on the application of any local authority or
authorised person, the Court may make an order -- (a) placing the child
with respect to whom the application is made in the care of the designated
local authority; or (b) putting him under the supervision of the
designated local authority.”
Threshold
criteria
- S. 31 (2) states that
"the court may only make a care order or supervision order if it is
satisfied
(a) that the child concerned is suffering, or is likely to suffer,
significant harm;
and
(b) that the
harm, or likelihood of harm, is attributable to (i) the care given to the child
or likely to be given to him if the order were not made, not being what it
would be reasonable to expect a parent to give to him; or (ii) …(not
relevant).”
- Before any court may entertain
the making of a care order (or indeed a supervision order) the statutory
threshold criteria must have been established. The court has to be
satisfied that the child concerned is suffering or is likely to suffer
significant harm attributable to a lack of reasonable care being afforded
to him.
- In this case the threshold criteria
set out by the local authority are not disputed, and, in view of the
absence of contention about the evidence, it is not necessary for me to
set out matters in detail. I adopt as my findings of fact the threshold
document (the text of which has been agreed between the solicitors for the
mother, the guardian and the local authority); I have already directed
that the document be annexed to my order.
- The facts advanced by the local
authority are based essentially on the risk of harm set out above because
the mother lacks the capacity to meet her child's needs, providing him
with a safe and stable environment and to prioritise his needs above her
own. I am satisfied that he would be likely to suffer significant harm in
the future unless there had been intervention on the relevant date, and I
find that that situation continues at the present and into the foreseeable
future.
- A supervision order is clearly
not appropriate in the circumstances.
- On the findings I have made
above, and on the relevant date, I find that the child was likely to
suffer significant harm; and the likelihood of that harm was attributable
to the probable want of care from the mother were the order not to be
made. The threshold criteria are thus satisfied and a care order must be
made to enable the local authority to share parental responsibility and to
exercise its duty to act in the best interests of the child.
- A child has the right to be
raised in an environment where his welfare is not placed in jeopardy and where
he is provided with the opportunity to flourish and reach his potential.
The local authority sets out how it intends to achieve such a future by
its Care Plan.
Care Plan
- The court may only pass
responsibility over to the local authority by way of a final care order
when all the facts are as clearly known as can be hoped. I approve the
care plan annexed to the order, and I make a Care order to the Local
Authority in respect of this child.
- Under the Act, the local
authority must apply for a placement order if satisfied that the child
should be placed for adoption. I accept that an adoption order is likely
to be the best way to ensure that this child is afforded secure, stable
and permanent care of high quality with carers who are able to meet his
needs in a positive and sensitive manner.
Placement
- The Local Authority has today
issued a formal application that the child might be placed for adoption.
As there is no father taking active steps in these proceedings, I abridged
time for service of the placement application (because all other relevant
parties were present and the local authority had completed its schedule B
report and the Guardian had completed his report in anticipation of
appointment). I formally appoint the Guardian in the child care
proceedings as the Guardian in the placement application. The child's
details were placed before the Local Authority's Adoption Best Interest
Panel on 18 November 2009; it recommended that adoption was the best
option in the range of possible outcomes for the child. On 23 November 2009 the Local Authority Decision Maker ratified the recommendation of Panel.
- I adopt (within this placement
application) my findings in relation to the care proceedings. I also
address the additional material required by section 1 (4) of the Adoption
and Children Act 2002.
- The Guardian has filed a
separate report about placement dated 14th December 2009. I adopt each of his conclusions as my own, and I am satisfied that on the
evidence about contact it is highly probable that the son will not suffer
distress at cessation of contact, ‘though I echo the guardian’s
recommendation for letterbox contact.
- The child is achieving his
developmental milestones, is happy and settled with his foster carers, and
has no special needs for the purposes of section 1(4)(b) of the 2002 Act.
- The mother attended the
hearing, and felt unable to consent to the making of a placement order for
the son preferring to abstain from giving her positive consent, and
leaving that decision to the court. For the avoidance of doubt I find that
section 21(2)(a) of the 2002 Act is met, and I am satisfied that the
child’s welfare requires that I dispense with parental consent to
placement. I am satisfied that the son's best interests are served by a
placement order being made in order to achieve the best prospect of
permanence and stability for the child.
- There are no other close
relatives with whom the son has had contact; and no-one else has been
successfully assessed to look after him. I am asked to look at the likely
effect on the child (throughout his life) of his having ceased to be a
member of the original birth family and become an adopted person (pursuant
to section 1 (4) (c) of the 2002 Act). No father figure has visited and
the mother has seen him just three times in the last six months. It is
therefore unlikely that he will suffer any withdrawal symptoms at the
cessation of contact, but the mother can make an essential contribution
towards the child's development of a healthy sense of his own self by
contributing to the life story work as fully as possible so that any
questions he may have in the future might be answered.
- As to the remaining criteria, I
repeat what I have found under section 1 (3) of the Children Act 89 above.
There are no family members who were able to offer care for the child, and
the Guardian supports the local authority position that the child should
be adopted.
Conclusion
- I therefore make a placement
order in respect of the child.
- There is to be letterbox
contact afforded to the mother on the usual annual basis. The mother is
keen to receive an annual photograph of her son, but she recognises that
this is a matter which lies within the complete discretion of future
adopters.
- There shall be no order as to
costs between the parties, save a Legal Services Commission Funding
Assessment Direction for any Assisted party.
District Judge
18/12/09
