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 child and members of his 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: NE15Z00718/NE15C00082
Neutral Citation Number: [2015] EWFC B156 (Fam)
IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: T (A CHILD)
The Law Courts
The Quayside
Newcastle-upon-Tyne
NE1 3LA

Thursday, 23rd July 2015

Before:

HIS HONOUR JUDGE SIMON WOOD

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Re: T (A Child)

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Transcribed from the Official Tape Recording by
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Counsel for the Local Authority: Miss Webster
Counsel for the Mother: Miss Smith
Solicitor for the Father: Miss Boswell
Counsel for the Child: Mr McCain

Hearing dates: 23rd July 2015
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JUDGMENT
JUDGMENT
HIS HONOUR JUDGE SIMON WOOD:
1.	The court is concerned with the welfare of A, a boy, born on 13th February this year, 2015, and so who is now just 23 weeks old.  Sunderland City Council on 16th February issued proceedings seeking a care order in respect of A and now present a plan to the court for the making, in addition, of a placement order so that A’s future can be secured permanently outside his birth family.
2.	The application has throughout been opposed by A’s mother, M, who was born in 1989 and is now 26, hails from Nigeria and whose current immigration status is believed to be that she is a failed asylum seeker with no right to reside in this country.  The application is also opposed by his father, F, who was born in 1978 and is 37, also a Nigerian citizen who first came to the United Kingdom on a student visa.  The status of these parents as a couple is less than clear.  The mother has filed a statement alleging that she has nothing more to do with him; the father has very recently told the guardian that they remain a couple.  Assertions have been made that they are married.  There is no clarity around the issue at all.
3.	The orders which are sought are, however, supported by A’s guardian, Ross Duncan.  Why then does the Local Authority say that A, who has been in foster care since birth, is at risk of suffering harm and that such harm would be attributable to him not receiving the care that would reasonably be expected from a parent?
4.	The matters that the Local Authority alleges are largely accepted.  Indeed at this final hearing, which had been fixed for a very long time indeed, neither parent has attended.  There does not appear to be good reason for their non-attendance.  The mother, having said in terms to the social worker earlier this week that she did not intend to attend and although was perhaps more ambivalent yesterday, the arrangements which were very properly and responsibly made by her solicitor to ensure that she had the means to attend appear to have been ignored.  So far as the father is concerned, as I will come to, there has already been a finding by the court that he lacks capacity and it is simply unknown why it is that he has failed to attend today but given the unanimity of professional view, it does not seem to the court that the applications which were properly made, on mother’s behalf at least, to adjourn could be granted.
5.	As I say, the matters which the Local Authority allege in support of their application are largely accepted.  Indeed, there is an agreed threshold document which I would like to be annexed to the order at the conclusion of today’s hearing but it is the fact that the mother’s two oldest children, who were born to different fathers, were made the subject of both care orders and placement orders in October 2009.  Likewise, it is the fact that on 22nd May 2014 this court made a care order and placement order in respect of A’s full older brother, B, who had been born in September 2013.
6.	The parents dispute that they have not demonstrated a sufficient change in their parenting capacity since the conclusion of B’s case in May 2014, that their relationship is characterised by domestic abuse including violence which is confirmed, if by nothing else, by the convictions of the father for such.  The parents have denied that they have failed to engage with professionals.  
7.	As far as the mother is concerned, it is said that she lacks insight into the risk that the father poses, reconciling with him on several occasions despite advice to the contrary and, indeed, her obtaining a non-molestation order.  It is said that she is isolated and vulnerable with no support beyond what was offered by the refuge where she was living: she is no longer there and so just how much support has derived from that is not clear.  There is also in her case a significant history of mental health problems with a diagnosis of paranoid schizophrenia with an associated history of non-compliance with medical regimes and finally against her it is said there was a failure to engage with antenatal services until shortly before A’s birth.
8.	So far as the father is concerned, he too has significant mental health difficulties.  He has a longstanding diagnosis now of bipolar affective disorder and, as a consequence, for the second time, this court on 5th June concluded at a contested hearing that he lacked litigation capacity in respect of the care proceedings, having made a similar finding in respect of B’s case in February 2014.  Furthermore, he has continued to fail to accept the risk that he poses found by the court in the judgment of May 2014.  He is presently recently released from custody having been convicted of assaults against the mother, and harassment, as I will come to very briefly, against the key social worker and so it follows that the background is considerable.  Much of it can be gleaned from the lengthy judgments the court gave in B’s case, particularly those of 6th September 2013 in respect of an interim care application and that at the final hearing on 22nd May 2014.  I am not going to repeat what is set out there but those judgments ought to be available to anybody subsequently having to consider this judgment.
9.	Suffice it to say that having had her older boys removed from her care for reasons of mother having caused physical chastisement which resulted in her being cautioned for child neglect and then increasingly the concerns reflected by her lack of emotional availability and limited understanding of parenting, her boys’ emotional presentation and development along with the mother’s apparent inability to take on board advice and co-operate were overtaken in the event by an acute psychotic episode.  Each of those boys taken into care were found to have serious emotional and behavioural difficulties and, very sadly for each of them, not only has it not been possible for them to be adopted as had been the intention of the court in 2009 but they have had to be maintained in separate specialist foster placements because of the inability of them to be placed together.
10.	This Local Authority became aware of the mother in May 2013 on an alert from the midwife that she was living in a refuge, pregnant, having fled domestic violence and was at risk of imminent deportation.  Throughout B’s case the mother lived at the refuge of Wearside Women in Need (WWIN) who not only accommodated her but supported her emotionally and practically throughout the process and were very powerful advocates on her behalf, insisting that they could safeguard B’s welfare in his mother’s care on her living with them in the refuge where they maintained that she co-operated with the regime.  The Local Authority did not subscribe to that view and, ultimately, nor did the court. 
11.	Although the mother had had a prolonged period of stability in relation to her mental health whilst she was in the refuge, the court found that the older boys had suffered very serious harm indeed (paragraphs 64 and 65).  Further the mother lacked the capacity to meet the needs of any of her children, but particularly B, and the insight into that shortcoming, particularly evident throughout extensive detailed contact records, despite exceptional levels of help both from the Local Authority and WWIN.  It also found there to be issues of basic care which ought to have been capable of being taught, retained and applied with practice but in practice they remained (paragraphs 66 to 74).  The mother’s relationship with the father,  that despite a huge amount of work being done, particularly by WWIN, in seeking to educate her and to protect her against abusive relationships was an enduring concern despite her acceptance of having suffered significant domestic abuse and obtained court orders as a consequence.  The relationship appeared to be ongoing.  She claimed to the court that they were betrothed and she very much wanted to be married to him.  Furthermore she presented at the judgment hearing in May and announced that she was pregnant to him again simply reinforcing that concern (paragraphs 77 to 85).  Further factors have been the mother’s aggression, not just to those in authority but to others around her, including other children who were living in the refuge when she was in WWIN (paragraphs 86 to 94) and finally her dishonesty (paragraphs 95 to 96).  Although no threshold finding was made regarding the mother’s mental health, and it was not then a current issue because it was well controlled, the court questioned just how well it would be maintained in a less structured setting. 
12.	So that was the background to the arrival of A.  The Local Authority has attempted to carry out further assessment work and I am indebted to Michelle Brown, the key social worker, for the very helpful and concise evidence that she has produced to the court, all of which I have read both in her statements and in the care plan.  Her conclusions can be summarised really as follows, that: first, these parents remain in a relationship; that A was conceived whilst a non-molestation order was in place at the mother’s request designed to keep them apart; domestic abuse continued; the father’s mental health continues to be cause of considerable concern (and that was no better evidenced than at the capacity hearing in his own address to the court) quite apart from the psychiatric evidence of Dr Oyebode; the parents’ engagement with professionals remains both inconsistent and unpredictable; their status in the United Kingdom is unstable and the father, in particular, struggles to adhere to the criminal justice system, failing to attend court, failing to demonstrate by his conduct that either he or the mother could provide stable and consistent care that would reduce the risk of harm to the children.
13.	Leading up to the application, the Local Authority encouraged the parents to attend sessions arranged to enable them to be assessed; neither attended.  The parents did not attend the initial child protection conference in January.  They, at that time, reported that they did not share any of the Local Authority’s concerns and the mother asserted that she did not require a social worker in respect of her child.  Following the filing of the care plan, there was an interim care application on A’s birth which neither parent attended, it was adjourned to enable the mother to appear.  She did ultimately and did not oppose the making of an order.  
14.	At the same time the court made an order under section 34(4) of the Children Act 1989 permitting the Local Authority to refuse the father contact because of the very considerable concern that arose from the last contact that he had had with B which had led to the court making a similar order in his case where despite close supervision in contact serious anxiety arose as to the safety of B which simply could not be assured by a professional supervisor in that context.  Whilst not repeating the evidence, I note that the statement that was before the court in those proceedings in respect of B from Graham Sillett has been produced in these proceedings.  That was, in the court’s judgment, a reasonable and proportionate order to make.
15.	In addition, it was disclosed to the court in February that the social worker had been receiving threatening text messages from the father, the text of which is set out in her statement at C21, which I have read.  They are extremely alarming and threatening messages, albeit delivered in a fairly incoherent manner.  The father was subsequently convicted of an offence arising from that and received a suspended prison sentence as a consequence.  
16.	As recently as 12th March the father was convicted of assaulting the mother again and was made the subject of a restraining order.  In the middle of May the police revealed to the Local Authority that allegations had been made against the mother of threats to harm and kill a woman with whom she was living in early April, antisocial behaviour in the middle of April and allegations of a physical assault on a 21 year old roommate towards the end of April, all factors that demonstrate to the Local Authority and, indeed, to the court that the different forms of aggression which were encompassed in the finding of aggression in respect of B’s case were well founded.
17.	The mother has continued to have contact with A, albeit that was subsequently reduced to once a week for one and a half hours because of the mother’s inability to settle him and because of the questionable quality of that contact.  That was a live issue throughout B’s case where, despite enormous support and help right up until the final hearing, very concerning descriptions of basic care were still being reported.
18.	So far as the mental health aspect is concerned, there remains evidence that the mother is only intermittently compliant with treatment and I understand she receives depo injections from Royal Victoria Infirmary every two weeks and she is presently compliant but that is entirely dependent upon her and I note that since the last proceedings she has been detained at least once under the Mental Health Act in June of last year. 
19.	So far as the father is concerned, when he was arrested in February the police psychiatrist described him as paranoid and ranting and requested that both A’s mother and Miss Brown, the social worker, be offered protection as a consequence.  He denies any mental health problems at all despite the psychiatric assessments of Dr Oyebode of himself throughout these and the previous proceedings.  
20.	All I propose to say about the mother is that in her case she was found to have capacity to understand the nature of the proceedings and provide instructions but was also found not to be able fully to appreciate the risk that the father poses to the children and therefore cannot address the question of how she might protect the child from him.  The father denies that he poses any risk, that he has any mental health problems and his consistent view is that all such decisions about his son will be decided by God.  He has been described variously as erratic, irrational and incoherent and that has certainly been very much in evidence on his appearances at court.  Hence, Dr Oyebode’s finding that he did, indeed, lack capacity, a finding that the court endorsed.  I note that he has been consulted again very recently and although there has not been further assessment, it is his opinion that he is unlikely to have gained capacity because he has consistently declined to access treatment which he needs for his condition to improve. 
21.	Those, therefore, are the reasons why the Local Authority says that not only is the threshold crossed but that an order needs to be made to secure A’s welfare.  It is difficult really to do more than note that the mother has filed a statement and that the Official Solicitor has filed a statement on behalf of the father, he having accepted the invitation to act.  Mother’s advocate is without instructions today for the reasons I have indicated.  Miss Boswell on behalf of the father is, of course, instructed by the Official Solicitor who, if I may say so, appears to have taken a very pragmatic approach given the strength of the evidence which is presented. 
22.	What mother said in her statement, which she filed as recently as 3rd June, is that she would like to care for A, that she has an address in Newcastle where she could live with him, having moved out of another flat when she had fallen out with the flatmate.  She confirms she has no secure permission to remain in the United Kingdom.  She says at paragraph 5, “I am not in a relationship with the second respondent”, and she goes on to say that she had been engaged to him but was no more, she had remained loyal despite his violence but following the assault on her in March she decided she had had enough. 
23.	Just pausing there, whilst there is nothing directly from the father in relation to this, as recently as 29th June he told the children’s guardian the complete opposite:  he remains in a relationship with her, that he lived nearby and that he knew where she lived.  This has been a running issue throughout all of the litigation beginning with B, namely what is the father’s status in the mother’s life?  It remains as confused as it ever did. 
24.	She maintained she has been compliant with her medication, that she has attended contact consistently and she ends by saying this: 
“Overall, although there have been very difficult circumstances in my life, it has become more stable recently.  My mental health is good.  I am not with F and will not resume our relationship.  I believe that I have moved on since the previous proceedings and I am making changes.  I believe that I can care for A and hope that the court will give me the opportunity to prove that I can do so.”  
There really is little more that can be added to that on her behalf in her absence.
25.	The Official Solicitor has filed a detailed statement recognising the nature of the concerns.  He has investigated the case through the agency of his solicitor, Miss Boswell.  He notes the father’s view that God is the judge and the only judge who can make a decision, not the court, that the father takes his instructions from God: 
“Everything is in the hands of God and there is nothing he can do about it and he considers that A’s rightful place is with his father.”  
Faced with that, the Official Solicitor has recognised the strength of the evidence and therefore does not seek to oppose a finding in relation to threshold or in relation to the making of a care order.
26.	Likewise, Mr Duncan who is new to this case, not having been involved in B’s case, has prepared a composite report in respect of the application in which he notes, correctly it seems to the court, that the risks have escalated rather than the reverse since B’s time.  An example that he can give of the mother’s complete lack of insight is at paragraph 7 in relation to the risk that A’s father might pose to a child, the response being that he had given B coca-cola in the very difficult contact I have alluded to but was unable to advance any other reasons as to why he might be a risk. Noting that she was isolated, that she has had to move more than once because of aggressive behaviour, he indicates that there is no confidence that, first of all, there is no relationship between mother and father or that A’s needs could be met in the care of the mother.  The time that A has spent with her has not been of good quality.  There is simply no evidence, against a background of failure to work with health care professionals, with the Local Authority and so on, that A could be kept safe.
27.	It seems to the court that the threshold overwhelmingly is made out and in those circumstances I turn to the question of what order needs to be made.  Care proceedings do, of course, involve those two questions: first of all, are the threshold criteria for making a care order under section 31 of the Children Act satisfied and, secondly, if so, what order should be made?  There is no question but that the threshold criteria are satisfied.  The question then is what order needs to be made.  
28.	In answering that question, I apply well established legal principles.  I bear in mind the rights of both mother, father and A under Article 8 of the European Convention to respect for family and private life.  Under section 1 of the Children Act, A’s welfare is my paramount consideration in the care proceedings, under section 1(2) delay in making decisions concerning his future is likely to prejudice his welfare and under subsection (3) I have to have regard to the checklist of factors to be taken into account when determining where his welfare lies and what order should be made and in this case the particularly important elements are A’s needs, the capacity of the parents, either or both of them, to meet those needs and the risk that A is at of suffering harm.
29.	There is here an application for a placement order which I propose to deal with in this composite hearing.  It is unfortunate that the ruling that I gave on 5th June did not expressly encompass the placement proceedings which have gone on to result in the Official Solicitor questioning whether the court is in a position to deal with that application and I deal with it very shortly for exactly the reasons I gave on 5th June.  It seems to the court that this father, by all his conduct and by the psychiatric examination, together with the most recent advice from Dr Oyebode noting the lack of any treatment since he last saw him, lacks the capacity to make decisions in relation to A’s welfare and as to his future placement.  In those circumstances I am quite satisfied, the Official Solicitor having indicated that in those circumstances he would not oppose the making of an order, that it is appropriate that I deal with it at the same time as dealing with the other application.
30.	So in considering an application for a placement order, the court applies section 1 of the Adoption and Children Act.  Again, my paramount consideration is A’s welfare, although this is to be throughout his life.  I note that delay in coming to a decision is likely to prejudice his welfare and I have regard to the checklist, the factors to be taken into account set out in subsection (4) of section 1 and in this case the important factors are A’s needs, the likely effect on him throughout his life of having ceased to be a member of his birth family and becoming an adopted person, his background, he is the son of immigrant Nigerian nationals, any harm that he is at risk of suffering, his relationship with his birth relatives, particularly his mother, and the value of that relationship continuing and the mother’s ability and willingness to provide him with a secure environment that meets his needs. 
31.	Under section 21(3) of the 2002 Act the court cannot make a placement order unless satisfied that the parents have consented to the child being placed for adoption or that their consent should be dispensed with.  There is no consent forthcoming in this case and in those circumstances the court before making such an order has to consider its power under section 52 to dispense with parental consent providing A’s welfare requires that that consent be dispensed with.
32.	These provisions have been the subject of a good deal of scrutiny and analysis in a number of important recent decisions, in particular the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33 and the series of decisions in the Court of Appeal culminating in Re B-S [2013] EWCA Civ 1146, Re W [?] and Re: R (A Child) [2014] EWCA Civ 1625 and I have those decisions firmly in mind at all points during this hearing and judgment.  
33.	In Re B the Supreme Court reminded itself of the European jurisprudence, reiterated that the test for severing a relationship between parent and child is very strict such that it should only occur in exceptional circumstances and where motivated by an overriding requirement pertaining to the child’s welfare, in short where nothing else will do.  As Lord Neuberger observed, making a child subject to a care order with a plan for adoption should be a last resort where no other course was possible in his interests.  That interpretation was reiterated by the President in the judgment of the Court of Appeal in Re B-S which emphasised that the test is a stringent one and what must be shown is that the child’s welfare requires parental consent to adoption to be dispensed with. 
34.	The court in that decision identified two essential requirements for a court to have regard to when being asked to approve a care plan for adoption and to make a non‑consensual placement order: first, the need for proper evidence both from the Local Authority and from the guardian addressing all of the options which are realistically possible and containing an analysis of the arguments for and against each and the second thing that was identified as essential was an adequately reasoned judgment, citing with approval the observations of Lord Justice McFarlane in Re G (A Child) [2013] EWCA Civ 965 of the need to approach this question as a global, holistic evaluation where the options are considered against each other in deciding which best meets the duty to afford paramount consideration to the welfare of the child.
35.	In this case the options are starkly limited.  Both parents have been ruled out as potential carers for the very reasons which give rise to the threshold findings.  The father’s mental health for the foreseeable future, quite apart from his other behaviours, rules out any possibility of him caring for the child and there is no evidence that it is likely to ameliorate at any time in the foreseeable future, certainly not within a time scale that would meet A’s needs.
36.	So far as the mother is concerned, she has demonstrated over a long period of time her inability consistently to co-operate with the authorities and to demonstrate that she can meet such matters as basic care needs as well as meeting the emotional needs of her children as the harm that had been done certainly to her two older children demonstrated and as prolonged assessment and scrutiny in relation to B in particular confirmed.  There is nothing that has arisen in respect of A that gives the court any greater confidence than it had previously and so, again in her case, there is no evidence that would lead the court to consider that even with a great deal of help that this mother could meet A’s needs within any time scale, let alone within a time scale that meets his needs.  
37.	Because of their position in the United Kingdom, their lack of family here, their lack of social ties and connections, neither has put forward any other person who could care for A and therefore the only alternative in the court judgment which is available for consideration in those circumstances is one of adoption.  Adoption, of course, comes at a very high price but I am quite satisfied that not only is there no reasonable prospect of A being cared for by either of his parents but that the whole question of the analysis of the realistic options for the future care of A have been carefully considered, not just by the Local Authority but by A’s guardian in his very thoughtful but ultimately frank report.  There is simply no evidence of change and no evidence of any prospect of change and A needs a permanent home as soon as possible to give him the best opportunity to grow up as an emotionally secure and safe boy, adolescent and then adult.
38.	The Supreme Court reminds us that adoption is a last resort and that wherever possible children should be brought up by their natural parents.  I fully accept that adoption is not a panacea, it has with it advantages and disadvantages as the Local Authority and the guardian have both recognised but in this case, having considered the balancing exercise, I unhesitatingly conclude that there is no realistic prospect of A being safely returned to the care of either his mother or his father or his parents together and that his needs for stability and permanence can only be met in an adoptive placement.  
39.	In those circumstances I make a care order and having concluded, as I do, that A’s welfare requires me to dispense with the parents’ consent to placing him for adoption, I make a placement order authorising the Local Authority to place A for adoption.  In making those orders I have paid full regard to the Article 8 rights of the family members as well as the checklist and have acutely in mind that the order that I make is one that affects A throughout his lifetime but I am satisfied that this is one of those exceptional cases where proportionality points clearly to the need for such an order being made.  
40.	This is desperately sad.  There is very little that one could offer the parents by way of consolation even if they were here, only that the court is satisfied that this order is such that it gives A the best prospect of being able to grow up in a safe and secure way which, sadly, neither parent can offer him.  So in those circumstances I make a care order.  I approve the Local Authority care plan.  I make a placement order while dispensing with parental consent and I would invite Miss Webster in due course to draw up an order reflecting that fact and annexing, as I say, the agreed threshold to that document.
[Discussion re order follows]