IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: WX13C00855
IN THE FAMILY COURT AT RHYL

IN THE MATTER OF THE CHILDREN ACT 1989 AND
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF A AND C (CHILDREN)

29th April 2014
Before :

HIS HONOUR JUDGE GARETH JONES

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Between :

	X LOCAL AUTHORITY	Applicant	
	- and -		
	
L (1)
- and -
CC (2)
- and -
A and C (Children)
by their Guardian Miss Siân Wilson (3)

Respondents
	
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Miss Ann Beattie for the Local Authority
Miss Heather Erwood for the First Respondent
Mr David Blythin for the Second Respondent
Miss Debbie Owens (of Messrs Humphrys & Co) 
for the Children’s Guardian

Hearing dates: 29th April 2014
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JUDGMENT
29th April 2014
JUDGMENT

HIS HONOUR JUDGE GARETH JONES:

1.	I have before me applications made by X County Council for Final Care Orders and Placement Orders in respect of two sibling children; A born 12th October 2011, and C born 20th December 2012.
2.	The parties to the applications and their legal representations are as follows:
•	the Local Authority, X County Council brings both applications in respect of the children and are represented today by Miss Beattie;
•	the children’s mother L is represented today by Miss Erwood.  The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment.  That decision is perfectly understandable so far as the Court is concerned;
•	The children’s father is CC.  He shares parental responsibility for the children.  He is represented by Mr Blythin;
•	The children are represented by their Guardian Miss Siân Wilson who has been present today and is represented by their solicitor Miss Debbie Owens.
3.	The applications (as I have said) are for Care and Placement Orders.  I can deal with the background to the applications fairly swiftly because the applications are not actively opposed by either the mother or the father, who have reached the difficult decision today to relinquish the children from their permanent care.
4.	So far as the parents are concerned, it is clear from the parenting assessment undertaken by the Local Authority in each case that they have themselves been the victims of abusive, unhappy and damaging childhoods.  They are ill-equipped to deal with the demands of parenting three children.  (I shall deal in a moment with the case of a half-sibling D who is not the subject of this application but has previously been part of this family.)
5.	That, however, is the sad position; they are two needy individuals who have been drawn together by their attachment to each other.  They have lacked the resources - both emotional and by way of experience, and by way of extended family support, to enable them to care properly for these children, all of whom now have left their care.
6.	I have mentioned the half-sibling to the subject children already.  D was in fact born in 2009 and therefore he is slightly older than the subject children.  He lives presently with his natural father CL, and has done since August 2013.  He is not the subject of these applications, but there are in existence (as I understand it) separate private law applications which involve the mother within these proceedings and obviously CL himself.  I anticipate that the Local Authority within these proceedings (bearing in mind the circumstances which I shall relate in a moment) would be supportive of that state of affairs continuing, namely supportive of D not in fact returning to the care of his birth mother.
7.	I have dealt very briefly by way of overview with the parents’ circumstances.  In slightly closer detail, the mother has suffered from depression for a number of years.  The father likewise has mental health difficulties and there have been attempts by him at suicide.  The father’s antecedent history reveals an individual who on occasion can be physically violent to adults, and that indeed includes his own father, the paternal grandfather in this case.
8.	As between these parents, on occasion there has been domestic hostility and there have been repeated noted instances of Police involvement, reflecting the difficult relationship at times between the two of them, which on occasion has been fuelled by excessive alcohol consumption.  There have been poor home conditions evident on occasions and neglectful parenting.
9.	The first referral to the Local Authority historically appears in 2009.  The children therefore have been ‘on the radar’ of the Local Authority for some considerable period of time.  There was a Child Protection registration in May 2012 and that coincided with an episode of bruising becoming evident to A.  A Support Plan was formulated and the sad fact is, that there have been a number of child protection concerns involving all three of these children – A, C and D – at various times during the care of the mother and CC.  Indeed, D was removed (as I have said already) from the mother’s care in August 2013 and placed with his birth father because of these concerns relating to him.
10.	On 27th October 2013, there emerged the latest in a series of bruising episodes which became apparent and was drawn to the attention of the Local Authority.  A Child Protection Medical in the case of A revealed some particularly severe bruising to the right earlobe.  I have seen the Police photographs of the injury concerned and I have seen several medical reports dealing not only with this episode but with other episodes as well, and a comprehensive second medical opinion report from Dr Wild, a paediatrician instructed in this case.  It is evident that so far as the bruising I have mentioned to A was concerned, that is very obvious and significant simply by an examination of the photographs which have been adduced.  It seems to me that this would have been an extremely painful bruise to inflict because it was an inflicted injury and that is the unchallenged medical evidence and the conclusion of Dr Wild in this case.
11.	Regrettably, although the medical evidence indicates that there have been episodes of inflicted non-accidental injury involving these vulnerable children, so far as the perpetrator is concerned, the perpetrator cannot be identified with any degree of certainty.  However, the group of “uncertain perpetrators” is made up of a closed group, namely the mother and the CC.  There is no challenge with regard to that finding, and it forms an important corner stone to the Local Authority’s Threshold Document today.
12.	The application for Emergency Protection Orders followed Police Protection Orders made in October 2013.  Then, in early November 2013, the Local Authority initiated the care applications.  An Interim Care Order was made from 8th November 2013 and the case was timetabled for this final hearing to commence this week.
13.	In the course of the proceedings, the Local Authority has (as I have said already) undertaken a comprehensive parenting assessment of both the mother and the father CC, with a negative conclusion.  The parents lack a ‘good’ template of parenting from their own experience as children, which has marked the two of them (as I have noted already).  They would, it seems to me, be overwhelmed by the demands attendant upon the care of three young children, were those three children to be returned to the care of either of them.  A risk is presented to the children (both a physical and an emotional risk), to their safety.  The difficulty in identifying (because of the parents’ concealment) the circumstances in which the injuries have been inflicted, leads to a lack of clarity as to the future risk with regard to the care of these children by their parents.
14.	The Guardian said (see page 10 of her final report):
“On analysing the evidence filed, I conclude that A and C would remain at risk of future harm if rehabilitated back to the care of their parents, either as a couple or individually.”
In the circumstances of this case, this is a conclusion which I fully share with the Guardian in this case.
15.	At one stage in the proceedings potentially, there appeared to be the prospect of familial care (if I can so describe it) in the shape of a Godparent of the children.  That individual (Y) withdrew as a potential carer and thereafter no other familial carer has emerged.  Accordingly, the Local Authority’s Final Care Plan for the children proposes a placement for the two of them outside the birth family by way of adoption.  
16.	The primary Plan put forward for the Court’s consideration is that the children should be placed together within an adoptive placement.  That would be a closed adoption so far as face-to-face contact is concerned, with the Local Authority proposing a phased termination of the mother and the father’s face-to-face contact, leading in due course to a “farewell” contact visit and thereafter only to indirect contact by Agency post-box on two occasions in every year.
17.	So far as other contact provisions are concerned, the Local Authority has (it is true) been keen to promote contact between D and his two half-siblings.  That has met with limited success because CL has been lukewarm to those arrangements and only one such contact has taken place during the currency of these proceedings.  It is to be hoped that he would be able to make arrangements with the Local Authority for D to see his half-siblings again before a permanent home is found for A and C, and to enable the usual life story work to be undertaken in this instance.  It is important that D has some idea of his half-siblings and that they have some idea of D, particularly if the Local Authority’s Plan for indirect contact between the siblings is to stand any prospect of success at a frequency of once per annum.
18.	The only other individual potentially who may be recognised within these contact arrangements is one of the children’s grandparents, with provision being made for there to be a “farewell” visit between her (the maternal grandmother) and the children prior to permanency being secured in the case of A and C.  That again is an important life story element for the two children and it is to be hoped that these arrangements can be made as well.  
19.	So far as the Local Authority’s Care Plan is concerned, it is the primary Care Plan only which is placed before the Court today for approval.  At present the Local Authority’s Care Plan for the children by way of contingency simply proposes in the following way:
“Should this be unsuccessful, then the Local Authority will explore other viable options available.”
20.	That at the moment is fairly open.  The Local Authority has indicated to me that if the worst came to the worst and the primary Care Plan could not be given effect to, then the Local Authority would reserve the right potentially to separate the children and place them by way of adoption with separate prospective adopters. That course (if the contingency were resorted to) is opposed today by the mother and the father and opposed also by the Children’s Guardian in this case.
21.	It is common ground (and it is certainly endorsed by the Court) that it is the primary Care Plan, if at all possible, which should be implemented in this case.  There are obvious advantages for these two children (who are so close respectively in ages and who have such a relationship one with the other) to keep them together within an adoptive placement.  If, however, this could not be effected, the Local Authority have indicated (and it is recorded on the face of the Order) that they would so notify the parents of any decision to separate the children, prior to such a placement being implemented, so that the parents have the opportunity to apply for permission to revoke any Placement Order granted by the Court today.  If that were to be done, that would almost unavoidably trigger the involvement of the Children’s Guardian Miss Wilson, who hopefully could be reappointed, and she doubtless would have her views with regard to the implementation of any such contingent arrangements.
22.	In any event, it seems to me from what I have read that these are children who are eminently adoptable; they are appealing children and it seems to me that it would be a privilege for any parent to offer to care for them throughout their minority.  It may indeed take a little while for the Local Authority to identify such a family who can care for two children together, but it seems to me that it is worth the effort to persevere in that regard and the Local Authority (as I understood Miss Beattie’s earlier comments) are hopeful of being able to identify such a family who could offer such care.
23.	In that eventuality, of course, no contingency would need to be resorted to in any event, and it seems to me to be an exercise of fairly limited worth in this case to embark today upon some kind of examination of the merits or otherwise of a contingency which may or may not have to be resorted to.  As I say, the position (according to the documents that I have seen) is that if a placement of the children together cannot be found, then the Local Authority will explore the other options available.  As I have said already, the mother and the father may in those circumstances suggest that it should be long-term foster care for both children together, and that may be supported in due course by the Guardian.  That indeed may also be the view of the Local Authority, if the primary Care Plan could not be implemented, but the Local Authority wish to ‘keep their powder dry’ and wish to preserve the option of exploring other potential outcomes.  
24.	All the Court can do in these circumstances is to defer any decision until it can more sensibly be able to reach an adjudication of the merits or otherwise of any particular course which is presented to it.  It does not seem to me that if there is a disagreement about a contingency which may not have to be resorted to, that the Court should withhold its approval of the primary Care Plan, and therefore defer and delay a potential positive outcome for these two children.
25.	In any event, for today’s purposes the primary Care Plan is unopposed by the parents and is actively supported by the Guardian.
The nature of the Orders I am being asked to make and the legal requirements which relate to those Orders
26.	So far as the applications for Care Orders are concerned, the Threshold in this case has been established on the balance of probabilities, on the basis of an agreed Threshold Document setting out (as it does) the concerns that I have identified already by way of poor parenting prior to the inception of these proceedings.
27.	Next, I have to carefully consider the Care Plans which have been filed and have regard to the paramountcy of A and C’s welfare.  I have to consider the so-called ‘checklist’ provisions under the Children Act 1989 and I have to reach the conclusion that the Care Plans are a proportionate and a necessary response to the risk of harm in this case.  I bear in mind, of course, the decision of the Supreme Court in Re B[2013] 2FLR 1075 that a placement of a young child outside the birth family permanently by way of adoption is obviously a draconian order of last resort.  I bear in mind also the decision in Re B-S [2013] EWCA Civ 1146 which directs the Court to give a global and holistic consideration to the alternatives presented for both of these children.
28.	As I have said already, so far as the Care Plan is concerned there is no familial carer available in this instance, and so far as the parents are concerned it is recognised that the risk to the children’s safety precludes a return to the care of the mother or the father, or indeed to either one of them.
29.	In these circumstances, the alternatives at the moment would seem to be either long-term foster care or permanency by way of adoption.  It seems to me that for children as young as these (two and one respectively), that the outcome which most closely replicates ordinary family life, is less likely to be prone to breakdown and provides the best secure emotional environment for both children, is one which provides for permanency by way of adoption.  In that eventuality, the children would remain together (because that is the primary Plan of the Local Authority), so that important familial relationships would be preserved.  It is true that such an outcome would sever the parental relationship in this instance, which would be maintained solely by indirect contact of the kind that I have mentioned already.
30.	In reality, there is no other important relationship which needs to be recognised in this case, save of course the relationship with D which I have mentioned already, which also in turn would be preserved (hopefully, if there is cooperation from CL) by the indirect contact arrangements that I have mentioned.
31.	So far as the applications for Placement Orders are concerned, I have the applications before me.  They are accompanied by statements of facts in each instance, because the consents of the mother and the father who share parental responsibility are not given to the Placement applications in this instance.  I also have Annex B reports for both children.  
32.	The Agency Decision-Maker has made the necessary recommendation prior to the initiation of these proceedings, and accordingly the preliminary requirements of the Adoption and Children Act 2002 and the Adoption Agency (Wales) Regulations 2005 (as amended) have been complied with in this case.
33.	Because the parents share parental responsibility, it is necessary to dispense with their consent.  That can only be done on the basis that the welfare of the children throughout their lives requires such a dispensation (see Re P [2008] 2FLR 625).  The word ‘require’ under section 52 of the Adoption and Children Act 2002 I remind myself has the connotation of the imperative, and as the President reminded everybody in the case of Re B-S, it is a stringent and a demanding test.
34.	Before, of course, I can make a decision which relates to the children’s adoption which includes the making of a Placement Order, I have to be satisfied also that the children’s welfare throughout their lives means that I should make a Placement Order, applying (as I must) the paramountcy of such welfare and the ‘checklist’ provisions under the 2002 Act.
35.	Looking, therefore, at the applications in a holistic way, I have identified already the Threshold Criteria which have been established in this case.  It seems to me that the Care Plans, having weighed the ‘pros’ and the ‘cons’, do indeed make appropriate provisions for the children during their minority and that this is the best outcome for these children in the unhappy circumstances of this case.  Accordingly, their welfare throughout their lives does indeed require dispensation of parental consent in this instance.  
36.	Accordingly, I approve the Local Authority’s Care Plans and having found the Threshold to be established I make Care Orders in the case of both A and C.
37.	Because the children’s welfare requires the dispensation of parental consent in this instance, I dispense with the mother and the father’s consent to the making of Placement Orders, and having regard to the children’s welfare throughout their lives I make Placement Orders in the case of both children in favour of X County Council.
38.	There will in addition be the recordings which are set out on the draft Orders before me with regard to both children.  That deals with the dispensation of consent, the recommendation by the Agency Decision-Maker, the Court’s approval of the primary Care Plan and indeed the Care Plan for contact, and an indication that the Local Authority would notify the parents if any contingency is resorted to, which is likely to be opposed by the parents, in effect triggering an application by such notice by the parents in due course for permission to apply for revocation of any Order with the Guardian’s involvement thereby being re-instituted.
39.	On that basis, a Placement Order will be made in favour of the Local Authority.  There are in addition Care Orders drafted with regard to both children and a separate General Order which has a number of recordings, including also permission by the Court to disclose within the private law proceedings involving D, the Threshold Document which has been agreed and found established now by the Court in these proceedings.  There will in addition be the agreed Threshold Document which is to be attached to the Care Order in this case.
End of judgment