IMPORTANT NOTICE
This
judgment was delivered in private. The judge has given leave for this version
of then 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.
IN THE FAMILY
COURT
SITTING AT BOURNEMOUTH
IN THE MATTER
OF C AND H (CHILDREN)
27th
May 2014
Before His Honour Judge Bond.
BETWEEN:
THE BOURNEMOUTH BOROUGH COUNCIL
Applicant
And
K
First Respondent
And
M
Second Respondent
And
N
Third Respondent
And
C and H
(By their Children’s Guardian)
Fourth Respondents
Miss Gayford for Bournemouth Borough
Council
Mr Masterson for K
Mr Reynolds for N
Miss Gillette for C and H.
JUDGMENT
This case concerns four children. This hearing however only
concerns two of them, C who was born on 31st July 2006 and H who was
born on 5th September 2013.
- The local
authority seeks care and placement orders in respect of each child. It is
proposed that they be adopted in separate adoptive homes. The guardian at
first recommended that an effort should be made to place the children
together. By the end of the hearing he accepted the local authority’s
view.
- The concerns
of the local authority have centred on what is alleged to be a worrying
history of domestic violence between the parents. The mother was injured
and the father was convicted on three occasions of assault. It is said
that the children were often witnesses of such episodes.
- The children
have not been in the same foster placements since removal from the
family. It is said that C has complex needs which arise from his
experience when cared for in his family. It is said that he will require
better than good enough parenting. It is said that H will be relatively easy
to place and given her age she does not have the same difficulties as C.
- Both parents
have parental responsibility. The father has not played any part in the
proceedings since 20th December 2013. He has not filed any
evidence or reports as directed. He has not attended this hearing. K
(the mother) and the N (maternal grandmother) accept that H should be
placed for adoption. I made the required orders un respect of H at the
conclusion of the hearing and reserved my decision in respect of C.
- The mother also
agrees that she is not able to care for C. The maternal grandmother made
a late application to be joined as a party and to seek a Child Arrangement
Order under which C would live with her. During the hearing the
grandmother altered her stance and added a request for a Special Guardianship
Order (SGO). This is supported by the mother. It is opposed by the local
authority and the guardian.
- If the court
concludes that it cannot make an SGO the grandmother asks that the
proceedings in respect of C be adjourned so that an SGO report can be
prepared. This is opposed by the local authority and the guardian. The
26 week period expired on 29th May 2014.
- There is no
dispute as to the contents of the Threshold Statement which appears in the
Preliminary documents the trial bundle.
- Law:
In respect of the application for a Care Order for C the court’s paramount
concern is C’s welfare which is more precisely determined by reference to
the welfare checklist in section 1(3) of the Children Act 1989. Further
section 32 CA has been amended by section 14 Children and Families Act
2014 which only permits extension of the timetable if the court thinks it
necessary to enable the proceedings to be resolved justly and see Re S
(A Child) [2014] EWCC B44 (Fam) at paragraph 33. The court
must also carefully consider the Care Plan.
- When
considering the application for a Placement Order the court has as its
paramount concern the welfare of C throughout his minority. The court
must also consider the matters set out in the Checklist in section 1(4) of
the Adoption and Children Act 2002 (ACA).
- The court
cannot make a placement order unless the parents with parental
responsibility for C agree or the court is able to dispense with consent
pursuant to section 52 of ACA.
- In considering
these applications the court has to operate upon the principles set out in
Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; 1
WLR 1911 and Re B-S [2013] EWCA Civ 1146. I have to consider
Article 8 ECHR and whether in C’s case nothing else but adoption will do.
- Evidence:
I have read the trial bundle and heard oral evidence from a number of
witnesses. The mother was present throughout but did not give oral
evidence. The first was the social worker Tammy Curson.
- She had prepared
a number of documents: her statements are at B1029 and B1181. The care
plans are at B1209 and 1229. She also prepared the viability assessment
of the grandmother at B1135, the split sibling assessment at B1163 and the
Annex B reports. I thought she was an impressive and fair witness.
- She was of the
view that if C, who is described as being in the hard to place category,
is placed with other children he needs to be the youngest child. The
preliminary inquiries have disclosed 15 applicants who might prove a
suitable match for C. This is the first stage in what will be process of
some months before an adoption application can be issued.
- The main
concerns about C and his situation are the volatile nature of the
relationship between the mother and grandmother; C’s closed emotional
state – he does not talk about his feelings and is too ready to fade into
the background and make no demands. He is an endearing child who is too
compliant. He has said that he would like to live with either the mother
or grandmother. It is feared that the grandmother will have difficulty in
putting C before the demands of the mother. If there were protective
orders the local authority questions whether the grandmother would enforce
them against the mother and be able to organise and deal with the problems
of contact.
- It is accepted
that the mother loves all her children and that the grandmother has a
particular fondness for C who loves her. Tammy Curson pointed out that
this was not the same as an Attachment between C and his grandmother. It
is agreed that the grandmother has a good understanding of C’s needs but
it is said that because of her own background and circumstances she will
not be able to meet C’s complex needs. Further it is pointed out that the
grandmother was on the scene during the time when the mother’s and the
children’s circumstances were so damaging. It is said that C needs what
has been described as therapeutic parenting.
- There are
also worries about the grandmother’s own mental health and general
well-being. The mother’s three siblings live with her. The eldest is 15
weeks pregnant and the youngest seems to be disruptive at school.
- Nikki
Reynolds, who was a fair and careful witness, prepared the parenting
assessments at B1146 and B1270. The parenting assessment was carried out
over two sessions one of which lasted 8 hours and the other two. The
grandmother had also been seen at the mother’s home.
- The first
session was on the day after the grandmother had undergone surgery
following serious illness after an ectopic pregnancy. The grandmother had
agreed to go ahead with the session as everyone was acting under the constraints
of the court’s timetable. I accept that it is unlikely that the
grandmother would have been able to appear at her best.
- Nikki Reynolds
agreed that the grandmother can carry out all the basic parenting
requirements but was of the view that the grandmother could not make up
the deficits in her knowledge of what was needed to care for C within his
time frame.
- As far as the
mother and grandmother were concerned, there is considerable concern about
an incident in February 2014. The mother and grandmother went to a club
and were involved in an altercation with a third party after they had both
been drinking. It is alleged that the mother had overcome the
grandmother’s reluctance to go out at all and that this is illustrative of
the way in which the grandmother gives in to the mother.
- The
grandmother said that in fact the mother had wanted to go out on the
previous weekend which was on her birthday. The grandmother successfully
resisted that but agreed to go out on the following weekend. The incident
began when the grandmother was accidentally jostled on the dance floor and
the mother became upset. The club’s security staff became involved. The
police were called. The grandmother was unable to calm the mother who had
had too much to drink. I think the grandmother agreed that it was an
unfortunate episode. I agree.
- Another worry
is the risk that the father may present if C lives with the grandmother.
- At the time
that she gave evidence Clair Burley was a trainee clinical psychologist.
Her reports are at C2002 and C2005. She has explained what in her
opinion C needs by way of parenting. Essentially it is said that C has
not had his emotional needs attended to. He does not express his needs
because he does not expect them to be met. He requires optimal parenting
in a calm and settled placement. In the absence of these two factors
Claire Burley thought that the outcome for C’s development was grim. She
fairly conceded that she was unable to comment as to whether the
grandmother could provide what C needed. While I accept Claire Burley’s
assessment of C’s needs I also have to consider whether the grandmother
can or is likely to be able to within a reasonable period of time which is
consistent with C’s timetable.
- The
grandmother’s statement is at B1239. She has been with her partner for 11
years but they do not live together. She clearly has had a very
difficult life. She suffered sexual abuse by her father as a child. I
thought that she gave evidence well. She was clear and forthright but
accepted some of the points which were made against her capacity to care
for C although I felt that she minimised the extent of the difficulties
she is experiencing with her youngest child.
- She plainly
loves C. She described him as wonderful and that she has been very close
to him since he was born. He calls her his Special Nan. C was placed with
her by the local authority for 3 months in 2008. She agreed that she has a
close but volatile relationship with the mother. She agreed that the
mother had made allegations against the grandmother to the effect that she
had not been a good mother to the mother. The mother had recently
retracted some of these. The grandmother denied that she had encouraged
the mother to drink alcohol at the age of 14.
- There are
clearly areas of legitimate concern about her plan to care for C. These
include the mother’s reaction, the risk posed by the father, her parenting
of her children and her health as appears in the letter from her GP at
C2010.
- The
grandmother felt that her parenting assessment was not as full as it might
have been. It was done upon the basis she was considering applying to
care for all four children not just C. The grandmother said that her late
arrival into the case had occurred because she had not earlier understood
that she could qualify for legal representation. She had understood the
social worker to say that if the grandmother passed her assessments she
might then consider instructing lawyers. She had earlier consulted
another firm of solicitors. The continuation of her public funding
certificate had been in doubt for the period after the first day of the
hearing. This was resolved and the certificate was continued.
- The
guardian’s reports are at E 4000 and E4007. At E4014 is a position
statement which was put in after the grandmother became a party. The
guardian has not been able to interview the grandmother. He did not
regard that as crucial. He has seen the notes of her contact.
- The guardian
was firmly of the view that there should now be a placement order in
respect of C. He was very doubtful whether a SGO would work. While it
would re-enforce the grandmother’s legal status, the guardian did not
think it would alter the volatile family dynamics. He was opposed to an
adjournment. He thought that there was sufficient material and analysis
for the court to be able properly to conclude the matter now. C would be
disappointed if a decision is delayed. C cannot wait. He requires
speedy placement with optimal parents.
- Those are all
powerful points which are made by an experienced guardian.
- Submissions:
On behalf of the local authority Miss Gayford pointed out that Threshold
is accepted. Further the mother agrees that she is not able to care for
either of the children. The father has not engaged in the proceedings but
represents a high level of risk.
- It is the
local authority’s case that although C is loved by his family, none of
them including the grandmother was able to protect C from the harmful
situation at home. It is said that the grandmother had been actively
involved in caring for C. He had stayed regularly with her at a time when
the harm to C was happening.
- It is submitted
that the grandmother’s household is chaotic. There are many calls on her
time. She has her own mental health problems. One of her children is showing
difficult behaviour. It is said that the mother’s own demands are likely
to be difficult for the grandmother to manage. The mother did not give
oral evidence but has made allegations against the grandmother in respect
of how she parented the mother. Those allegations have bee retracted but
as Miss Gayford pointed out either the mother was telling the truth
originally or she made false allegations. Both it is said show a
worrying situation. I agree.
- As to the
question of an adjournment for further assessment, it is submitted that
the existing assessments and reports are fair, balanced and are compliant
with Re B-S (Above). C it is submitted needs a decision
now.
- On behalf of
the mother Mr. Masterson pointed out that had the grandmother been earlier
involved she would have had a full psychological assessment and a SGO
Report. I think that is likely to have been so. He submitted that it is
dangerous now to take the drastic step of excluding the grandmother.
- On behalf of
the grandmother Mr. Reynolds adopted the submissions made on behalf of the
mother. He submitted that the delay in the Grandmother’s arrival into the
case was not because she had been lack of interest. She had been trying
to obtain public funding and representation. I accept that.
- It is accepted
that there are a number of questions about the grandmother which exclude
her as an immediate carer for C but she remains a realistic option for him.
He is nearly 8 and on the evidence it will take some time to find possible
adopters for him. It may not be possible. He loves his grandmother has
spent much time with her. If the grandmother can care for C this, it is
submitted, would be the best solution for him.
- In these
circumstances it is submitted that the court has insufficient evidence to
make a final decision especially as the alternative is adoption.
- On behalf of
the guardian Miss Gillette said that the Guardian is now in complete
agreement with the local authority. It is submitted that there is
sufficient material for the Guardian to come to a clear recommendation.
It is further submitted that there is no realistic prospect of the C being
properly cared for by the grandmother. Her household is a very busy one.
It is difficult to see how C would fit into that arrangement.
- Conclusion:
I agree that both the local authority and the guardian have conducted
careful and proper analyses of the position. I agree that the mother is
not in a position to care for C and that it would not be safe now to place
C in the grandmother’s care. The question therefore that I have to
answer is: is it consistent with C’s welfare to allow time for assessment
of the grandmother?
- On the one
hand such a course will import delay in coming to a decision as to what
course C’s life is to take. I bear in mind that such a delay is generally
inimical to a child’s welfare. Further the statutory 26 week time limit
expires on 29th May. That period can only be extended if the
court can properly conclude that an extension is necessary.
- I have also
considered the welfare check lists and in particular section 1(3)(f) CA 1989
and section 1(4)(f) of the ACA 2002.
- On the other
hand the only alternative for C is adoption. This imports consideration of
Article 8 ECHR. I remind myself of what was said in Re B
(Above); Re B-S (Above) and in Re S (A Child)
(Above). Has the process reached the stage where it can fairly be said
that nothing short of adoption will do? C will not be easy to place for
adoption. The evidence suggests that the process will take some months.
He is nearly 8 and has a close relationship with his grandmother. If
there is to be an SGO report in respect of grandmother it should not take
as long is generally said to be required. A significant amount of
information is already available.
- I have come to
the conclusion that this is matter which falls within that class of cases
mentioned in paragraph 33 (ii) (c) of the judgment in Re S
(Minors) (Above).
- In coming to
this view I am going against the course recommended by the guardian on
behalf of the children. In brief my reasons for doing so are:
(i)
The principals contained in the cases to which I have referred and to
which I do not think that the Local Authority or the Guardian gave sufficient
weight;
(ii)
C’s knowledge of and relationship with his grandmother;
(iii)
C’s age;
(iv)
I was impressed by the manner in which the grandmother gave her
evidence;
(v)
The grandmother is a realistic possible alternative for C and there is a
gap in the evidence as to her capacity to care for C.
- I approve the
threshold criteria but will not make a Care or Placement Order in respect
of C. If it has not already been done I shall renew the interim care
order I respect of C until conclusion of the proceedings or further order.
- I shall
consider what other directions to make when this judgment is handed down.
27th May 2014 HHJ
Bond.
