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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> N (A Child: Care & Placement Orders - Mother Lacking Capacity) [2015] EWFC B27 (06 March 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B27.html Cite as: [2015] EWFC B27

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IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: N (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		6th March 2015

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

1. The court is concerned with the welfare of N, a boy, born on 9^th October 2014. He is still only 5 months old. This court made an interim care order in respect of him on 13^th October because there were concerns as to his mother's capacity to consent to him being accommodated when he was discharged from hospital, which actually happened on 22^nd October. Gateshead Council made an application at the same time for a care order and now presents to the court a final plan whereby N should be the subject of a permanent arrangement to be achieved by the making of a care and placement orders.
2. So far as N's mother is concerned, she has consistently been found to lack capacity in relation to this litigation, the care proceedings and the placement proceedings and so the Official Solicitor accepted the court's invitation to act on her behalf and does not seek to oppose either the threshold findings that are proposed by the Local Authority or its care plan, with a possible issue only about contact. I am required to give a judgment but it will be a short judgment in the circumstances. I appreciate this is a very distressing matter for N's mother who ultimately felt unable to come to court today but it is right for her benefit and also for N's benefit in the long term that it is understood that the court made this decision and the reasons for it.
3. The mother was born in Angola in about 1990. She came to this country in 2000 or thereabouts with a couple called Z and Y from Angola and was almost immediately removed for the first time from that couple, whom she believed to be her parents, by virtue of domestic violence that existed within the relationship, by virtue of violence directed by Y towards the children she believed to be her siblings and by reason of drink. Y, was eventually deported from this country back to Angola in 2008. Z is believed to live in London. M came with four other children whom she believed to be her siblings. They no longer play any part in her life. What happened was the beginning of a pattern of her being removed from and returned to family care, being received back into care because of concerns about domestic violence, because of concerns of assault on the other children in the family and because of repeated separations and reconciliations.
4. In proceedings in 2004 it was found that the people that the mother believed to be her parents were, in fact, not. Indeed, she is not related to the other children in the family, whom she believed to be her siblings and who, sadly, want no contact with her. She continued to follow the pattern of being in and out of foster care and family placements until she was 18 and eventually, after living with a boyfriend for a while, she was offered her own property. She came into contact at a relatively early stage with the criminal justice system in relation to offences of dishonesty and violence and on many occasions she has gone missing, having absconded from wherever she was meant to be living. She was first sentenced to a custodial sentence in September 2013 for an offence of assault.
5. In March 2014 M was admitted to Cherry Knowle Hospital and she eventually received a diagnosis of a type of schizophrenia. She has, sadly, experienced instability of the most extreme kind for all of her life, having been brought to this country by people who she thought but were not, in fact, her parents. By the time she reached the age of 18, she had experienced 14 failed foster placements and two failed residential placements. It goes without saying that she had no positive role models, certainly not from the people she believed to be her parents, and I suspect that the length of time that she spent with any foster carers was insufficient for them to bring about any enduring change and the evidence would suggest that she believes that her own experience of being parented, in fact, worked well. That is plainly not the case.
6. A pre-birth assessment highlighted that instability, her offending behaviour, her mental health issues, her lack of awareness of her own safety needs and having no knowledge of the pregnancy. Indeed, at the first hearing, it was said that she denied having had sexual intercourse with anyone. Even on the pregnancy being confirmed she was either unable or unwilling to develop any kind of attachment to her unborn baby. She has never identified N's father. It is not clear whether she is unable or unwilling so to do. The pre-birth assessment was that she could not meet the basic care needs of any baby who would be at risk of significant harm. Following his birth she continued to live in the Tranwell unit. Continued assessment revealed poor insight into general care needs and no protective factors in place that would safeguard N's well-being. She rejected the idea of a mother and baby foster placement. She did not, in fact, oppose N being received into foster care, although I have explained why ultimately the court made an order.
7. With the passage of time, it is quite clear on all of the evidence that she has been unable to demonstrate the ability to care for herself. She has denied the need for medication to control her own mental state and she continues to have very little awareness of her own safety needs. Likewise, she has had little insight into N's needs and assessment concluded that she could not provide N with good enough care. That has been apparent in contact where she has needed intensive support. She remains extremely vulnerable by virtue of her lifestyle. Substance misuse has continued to cause concern. It is feared that she is a young person who was subject to possible sexual exploitation. Thus the Local Authority has concluded on all of the evidence that the only placement that could meet N's needs was an adoptive placement. On mother being told, she responded in a manner that perhaps suggested indifference but all along the issues of basic care as well as lack of affection and warmth, although demonstrated on occasion, have been apparent.
8. Dr Rippon confirmed the diagnosis of schizophrenia as well as noting evidence of some cognitive impairment. She said that M's chaotic and abusive upbringing would have adversely affected her emotional well-being and increased her vulnerability. This combination with the schizophrenia has adversely affected her ability to function as an individual, let alone as a parent. She confirmed the very limited insight that she has and indicates she would struggle to run any kind of household. That diagnosis obviously brings with it a variety of risks including self harm and harm to others. The prognosis is uncertain. Whilst the mother is compliant in a structured setting, Dr Rippon had doubts as to whether she would be if not in such a placement.
9. The Official Solicitor, as I say, has not opposed the threshold findings. He was satisfied that the welfare assessment that the Local Authority had carried out was compliant with the guidance given by the Court of Appeal in the leading case of Re: B-S (Children) [2013] EWCA Civ 1146. He could not oppose the making of a care order. He accepted that the mother lacked the capacity to consent to the making of a placement order and he felt he could not oppose such an order being made. The threshold findings are set out in the application itself. I am not going to repeat them here but they simply reflect the concerns that I have summarised. It is not disputed that they open the gateway to the making of a public order and the order which is proposed is supported by N's guardian, Mrs Carol Mordue.
10. I am going to deal with the law very briefly. Care proceedings obviously involve two principal questions: first of all, is the threshold for making a care order under section 31 of the Children Act satisfied? Secondly, if so, what order should the court make? The court can only make a care order under section 31 if it is satisfied that the child was likely to suffer significant harm and that the likelihood of that harm was attributable to the care that would be likely to be given to N if an order were not made. It is not disputed that the threshold criteria are satisfied and the second question, therefore, is determination of what order I should make.
11. In answering that question I apply the well established legal principles. I bear in mind the rights of the mother and N under Article 8 of the European Convention in respect of family and private life. There is an application for a placement order so my paramount concern under section 1 of the Adoption and Children Act 2002 is consideration of N's welfare throughout his life. I may not make a placement order unless satisfied that the parent consents or by dispensing with consent. In this case she cannot consent because of her lack of capacity to do so and the Official Solicitor on her behalf does not oppose the making of a placement order provided the court is satisfied that the welfare of N requires that the consent be dispensed with.
12. These provisions have obviously been subject to a great deal of analysis in a number of important decisions by the high court, by the Supreme Court in Re B (A Child) [2013] UKSC 33, by the Court of Appeal in Re: B-S (Children) [2013] EWCA Civ 1146, then Re W (A Child) [2013] EWHC Civ 1957 that followed and more recently still Re R (A Child) [2014] EWCA Civ 1625. I have had those decisions firmly in mind at all points in considering N's case. In particular I can only make the order that the Local Authority seeks in exceptional circumstances where motivated by overriding requirements pertaining to N's welfare, as Baroness Hale said in Re B, "where nothing else will do". That interpretation is obviously endorsed by the Court of Appeal in B-S where the President acknowledged how stringent a test it was and set out the requirement that there be proper evidence both from the Local Authority and from the guardian before making such an order, evidence addressing all the options realistically possible and containing analysis of the argument for and against. I have those matters firmly in mind.
13. The realistic option in this case is I am afraid only one. Sadly, there is no prospect of M being able to care for N in the foreseeable future. There is no family member who is identified, there is no blood relation identified at all, and even those whom she considered to be her family have indicated that they want no involvement with her or in these proceedings. N is a small child who needs permanency and security and the opportunity to form lifelong attachments so that he can fulfil his potential in a secure environment, whatever that potential might be, and there is simply no other order that will meet his welfare needs in the terms that I have described by reference to the law.
14. It is plainly not appropriate for a child of N's age to remain in foster care indefinitely. Having considered all of those factors, notwithstanding the fact that the order that I am asked to make comes at the high price of separation from the birth family, the welfare reasons why N should have the opportunity to form a permanent attachment with parents who will claim him forever, in this case, I am afraid overwhelmingly outweigh the disadvantage of separation from his birth family, however hard that is for his mother.
15. It will, of course, be a loss for N as well. It will be met by means of life story work and I am pleased that the Local Authority has committed to that work as requested by the Official Solicitor but I am quite satisfied that this is a case where nothing else will do and, therefore, I make a placement order and I dispense with the consent of the mother on the basis that she lacks capacity to consent and N's welfare requires that I make this order so the court therefore makes an appropriate direction under section 52 of the 2002 Act.
16. There remains one outstanding issue and that relates to ongoing contact. The Local Authority plan is for it to finish after four weeks from today with one contact a week until then so that N can start to be prepared for his move to his new permanent home, whenever that may happen, no adopter having been identified. They do point to the issues in relation to the quality of contact as being further reason to support that and their position is supported by the guardian. The Official Solicitor has taken a rather different view and suggests that instead contact should continue until such time as, he says, 'final determination'. I take that as being matching, that is N is matched with some prospective adopters. He plainly, in making that submission in paragraph 28 of his statement, suggests that it would be for the long term benefit of both N and his mother, certainly for his mother, to continue to have that contact and, insofar as Miss Thomson has been able to find out, that is something that mother would welcome.
17. One is, of course, extremely sympathetic to the mother's position but my priority at this stage has to be N's welfare and whilst I accept, as Miss Thomson says, that there are loving actions within contact, that is also within the context of contact where prompting is required and where mother is not able to meet his needs. I accept it may not be for very long but looking at it from N's point of view, I cannot see any advantage to contact continuing beyond the period that the Local Authority has determined as supported by the guardian and so in the circumstances I approve the care plan in the form that it is put before the court. It seems to me, looking at N's welfare, it is appropriate that a line can be drawn under this and that he can be prepared for moving on.
18. I have regard to Miss Thomson's argument that it is, of course, part of his life story that he has continued to have that contact and when he is older he will be able to understand that. Certainly he should never be told anything that suggested that his mother did not want to go on having contact with him but simply that the court determined that his welfare was such that the time had to come when that drew to a close. I very much hope she will engage in the life story work and that N will be made fully aware in due course of the circumstances of his birth and then subsequent placement with different parents but it seems to me that that life story work will more than meet his needs and that further contact beyond four weeks will not add in a positive way to that life story work.
19. This is, as everybody acknowledges, a desperately sad case. It really makes the most distressing reading to hear of the circumstances of this mother since she came to the United Kingdom and one knows not really what happened before she came to the United Kingdom but she has had the most sad life. I only hope that insofar as she is able to understand this now or at some point in the future, that there will be some consolation for her in the fact that N, by virtue of the orders that are being made today, will not experience the type of hardships that she has had to endure, that he will be claimed and loved and given every support to achieve his potential in due course and, on that happening, that that will in the long run be of some consolation to her.
[Judgment ends]