X (A Child: Profound Needs) [2016] EWFC B36 (22 April 2016)

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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: NE15C00084

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: X (A CHILD: PROFOUND NEEDS)

The Law Courts
The Quayside
Newcastle-Upon-Tyne
NE1 3LA

Friday, 22nd April 2016

B e f o r e :

HIS HONOUR JUDGE SIMON WOOD
____________________

Re: X (A Child: Profound Needs)

____________________

Counsel for the Local Authority: Miss P Moulder
Counsel for the Mother: Miss C Middleton
Counsel for the Father: Miss N Choudhury
Counsel for the Child: Mr K Armstrong

Hearing dates: 11-14, 22 April 2016
____________________

HTML VERSION OF JUDGMENT
____________________

HIS HONOUR JUDGE SIMON WOOD:

Introduction

The court is concerned with the welfare of X, who was born on 22^nd April 2011 and therefore today celebrates his fifth birthday. He is the only son of the relationship between M and F, a separated couple, albeit he is the second and younger son of his mother and separately his father.

On 13^th February 2015, 14 months ago, itself eight months after X was first accommodated by the local authority which issued proceedings seeking a care order and now seeks a care order and placement order, orders supported by X's children's guardian, Laura Grundy, but opposed by X's parents. His mother seeks the return of X to her care, a plan now supported by X's father who, having sought to care for X himself, simply seeks contact for himself, which he accepts will have to be supervised for the foreseeable future.

The Law

Before turning to the facts in any more detail, I should state that there has been no dispute as to the legal principles that have to be applied to this application. It is for the local authority to prove on the balance of probability the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have X adopted, to establish that nothing else will do following the principles in the Supreme Court case of Re: B (A Child) [2013] UKSC 33 and the litigation in the Court of Appeal of which Re: B-S (Children) [2013] EWCA Civ 1146 is the most prominent example.

I remind myself that, as Baroness Hale said in Re: B:

"The test for severing the relationship between parent and child is very strict – only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do."

That was a reflection of what the European Court had said in Y v The United Kingdom:

"Family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and where appropriate to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development a parent is not entitled under Article 8 to insist that such ties be maintained."

In considering the local authority's application for a care order, I must have regard to the welfare checklist in section 1(3) of the Children Act 1989 and, since the plan is for adoption also, to the welfare checklist in section 1(4) of the Adoption and Children Act 2002. Likewise I am obliged to treat as my paramount consideration in accordance with section 1(2) of the 2002 Act, X's welfare throughout his life and in deciding whether or not to dispense with the parents' consent, I must apply section 52(1)(b) of the 2002 Act in accordance with the principles spelled out in Re: P [2008].

The litigation

The history of this litigation is formidable and something for which no credit can be taken. It was allocated to District Judge Malik on issue and he managed it to a final hearing, itself listed very late in December 2015, when he allowed an unopposed application for an independent social work assessment of X's maternal grandparents, MGM and MGF, and adjourned the final hearing another four months to me to try commencing on 11^th April with an issues resolution hearing, also conducted by me, on 22^nd March. I have therefore come to this very old case, very late indeed, at a point where the issues had gone through a number of transformations.

The local authority case

Why does the local authority say that at the time protective measures were taken X was suffering, or likely to suffer, significant harm and that the harm, or its likelihood, was because X was not receiving the care that would be reasonably expected from a parent? There was at a much earlier stage an agreement as to the threshold findings drawn up between the local authority and the parents. It was acknowledged at the outset that the threshold for the making of an order was indeed crossed. The mother accepted the following particular matters.

First of all, that her relationship with the father had been a volatile one in which domestic violence was a significant feature in which the police had been involved, particularly an unpleasant incident in February 2013, when she was assaulted whilst holding X.

Secondly, whilst in a relationship with the father he sent her a number of threatening and abusive texts and messages.

Thirdly, when the relationship ended the mother continued to meet with him, despite risks that had been identified to her that were posed by the father and thus X and she did not disclose to professionals the fact of her meeting with the father.

Fourthly, the father misused alcohol during the relationship and his use of alcohol led to incidents of domestic violence. There was another occasion when the mother accepts that she too was under the influence of alcohol when the police became involved in an incident between the parents.

Fifthly, the mother accepted that whilst in a relationship with the father, particularly towards the end of it, X's needs were neglected on occasion, that X was at times under stimulated and that she had failed to obtain timely support in relation to issues concerning his bowels, feeding and storing of food in his mouth.

Sixthly, on two occasions in June 2014 X attended nursery with injuries in respect of which appropriate medical advice had not been sought.

Seventhly, although the mother engaged with [a charity which helps women the subject of domestic abuse], she was unable to understand what she was being taught and thereby implement the guidance she had been given. She was now working with Mind as recommended by the psychologist and it was accepted she had not resumed her relationship with the father, having now appreciated just how harmful that was.

Finally, the mother accepted that the local authority was right to be concerned in June 2014 when X was removed from her care and protective measures taken.

So far as the father was concerned he accepted that his relationship with the mother was volatile and resulted in police call outs and he also accepted that he drank excessively on occasion.

As I say, although the local authority at the time that this was drawn up suggested that there were further findings that might be sought, in the event the case has proceeded on the basis of that threshold.

The subject child: X

So without enlarging on that at present there are, however, other very important factors that need to be set out at this stage. The first relates to X himself. Whilst X is described as an absolutely delightful boy, always smiling, seeing him "makes your heart melt" was one observation, he is a little boy who has severe and complex difficulties. He suffers from global developmental delay, first noted when he was less than a year old, and is probably attributable to deletion of chromosome 15Q11.1, as well as a diagnosis of autistic spectrum disorder diagnosed in August 2013. Much more recently, in May 2015, X was diagnosed with Spina Bifida Occulta, which is not considered to be a contributory factor to his general presentation albeit he has had mobility issues and wears special boots to assist him.

X attends a special school which primarily focuses on children with speech and language difficulties as well as communication difficulties associated with autism. There is a question mark at the present time as to whether the major cause of his presentation is not the autism as such but his global developmental delay and that is a matter that will have to be addressed in the future in terms of the schooling provision that is made available to him.

However, a consequence, whatever the cause, of these severe and complex difficulties is that his day to day presentation is described as follows. First, his current level of functioning is about 18 months. Secondly, he is largely non-verbal although has a handful of single words and communicates by gestures and noises which his foster carer, at any rate, has learned to interpret. Thirdly, he cannot effectively feed himself. Since in placement he has been weaned to a degree and can cope with finger foods. He can manipulate a spoon but cannot get the food onto the spoon. He also has poor oral motor skills which cause him to dribble and spit when he eats. He cannot self-limit his eating and is dependent on adults around him to place reasonable limits on his food intake. Fourthly, he is not potty trained and he may never be and there is a history of bowel problems which require regular monitoring and medication. Fifthly, he can experience disturbed sleep patterns. If he wakes, though, he needs to be monitored until such time as he goes back to sleep. Sixthly, he has significant sensory processing difficulties in all areas. Seventhly, his method of gaining attention is to lash out, slap, push, kick, smack or bite. Sometimes he uses those behaviours, or a combination of them, to indicate that he is unhappy. There has been a pattern throughout the life of the litigation of a deterioration in behaviour and an increase in frequency in some of these matters.

The next point is that he shows tactile defensiveness, albeit that has become less pronounced. He still, however, dislikes getting undressed and having his hair washed. It is said that he functions more efficiently when strict routines are in place. On a day to day practical level, however, he requires constant supervision. He has no sense of danger. As a consequence he is totally demanding of adult attention and is unable to occupy himself for more than minutes at a time. Any carer therefore has to anticipate potential risks. As I will come to, he wakes early in the morning, six, six-thirty, goes to bed seven, seven-thirty. He is described as on the go throughout that time.

Tenth, he is unable to dress or undress himself. He has not developed the ability to play or focus on any activity for more than a few minutes. As a consequence, eleventh, caring for him is intense and lasts all day, every day. It is described as extremely challenging, mentally and physically exhausting and whilst there are, as I heard, many moments of great satisfaction, pride and joy, it is in many ways frustrating.

What was clear, again as I will come to, by the time we reached this final hearing was that the complexity and severity of X's difficulties are sadly much greater than had been originally thought. As I have said, despite all of this, and I repeat this, X is a delightful little boy who appears happy all of the time, smiles a great deal, enjoys the warmth of his contact and affection from his family and foster carer alike. Indeed he shows great joy at the opportunities he has had to meet with his family, being particularly pleased to see his mother, his grandfather and his older half-brother, B.

During the course of this hearing, as I have said, it became clear that the full extent of X's presenting difficulties really only became apparent during the course of this year. The court was presented with graphic and moving evidence of the ways in which these difficulties impact not just on the life of this little boy but on his carer, a quite remarkable foster carer, FC, who has now cared for X for these past 22 months. I will refer further to that evidence, but it is common ground that X's needs are exceptionally complex and demanding of any carer, necessitating full time waking care in the literal sense of that expression.

The mother

The second factor to mention at this stage relates to M, X's mother. She is 40 this summer. Her cognitive difficulties were such that a question was raised as to her capacity to litigate at all, resolved in the affirmative, but, in a very thorough psychological assessment by Dr Swart, the extent of her cognitive functioning difficulties was explored. That assessment identified her as experiencing in addition anxiety of sufficient severity to meet the diagnostic criteria for generalised anxiety disorder and social phobia as well as a depressive disorder. Her overall IQ is 69, suggesting mild learning difficulties. Her intellectual difficulties and psycho-social problems, which include poor self-esteem and social difficulties, combine to impact significantly on her social relationships and general functioning. Her confidence is poor. She has a vulnerable personality falling short of a personality disorder. That vulnerability makes her particularly susceptible to exploitation by her partners and her lack of confidence makes it difficult for her to separate from such a partner.

Whilst her mental health was not associated with a direct risk to X, her vulnerability made it more difficult to treat. However, her intellectual functioning renders her general problem solving abilities poor. Her intellectual limitations impact on her insight into X's needs, albeit this must not be confused with her limited verbal expression as Dr Swart explained, but it affects her ability to be pro-active in managing unexpected situations, it renders her slow to react to situations and she may not react until she has sought advice from someone else. So her failure to seek treatment for X, conceded in the threshold, is an example of this.

Set against that it has to be said she has held down a job as a dinner lady for twelve years, indicating that within boundaries she can function well enough. She maintains her home to an acceptable standard and she has attended routine appointments for X without apparent difficulty and engaged to the best of her ability in appropriate therapies.

The wider maternal family

The third factor relates to the maternal family more generally. Along with the father no one doubts their unqualified love for and commitment to X. They have throughout presented in an open and honest way and done more or less everything asked of them. The mother, her son, B, and her father, MGF, have shown an unwavering commitment to contact. Taken to some of the records in the hearing, I was asked to read all the contact records for this year, and I have, and they confirm that contact is a happy, warm, meaningful and appropriate experience for X, who plainly welcomes it, shows his excitement at its prospect and is visibly happy to see his family, who reciprocate in full.

MGM has been a less frequent attender at contact, but she works and when not at work, for example, when injured and when on school holidays – she too works in a school – she has also attended contact. If there is a criticism it is of her not taking up an opportunity to learn more about X and therefore render her better able to meet his needs as well as to make herself more available for contact, particularly after the hearing in December 2015. Ultimately she felt unable to give evidence to the court and despite encouragement that I am sure that she was given from her husband, which was renewed at my instigation stressing how helpful it might be to the court to be able to hear from her and form its own view of her, she could not be persuaded otherwise. Like her daughter she has certain limitations which emerged from Dr Swart's assessment of her, which placed her within the borderline low average range. This may well have played its part in her approach, despite her having otherwise developed good strategies for managing her life. But it has been another factor to take into account in considering the family proposal which placed her at the core of any support around the mother for X.

Background history

So before turning to the real issues I just need to fill in some more of the history. M gave birth to B in October 1995 when she was 19. Without a father playing any part in his life and with the support from the mother's parents, which at times was considerable, she has brought B up very successfully to be a delightful, charming, well adjusted and emotionally secure young man who would be a credit to any parent and is particularly so to this mother. Having had ambitions to join the Royal Air Force, he has in fact found that his college studies to become a gas engineer are congenial to him and, providing he can get the chance to put in the hours in the practical side by way of placement, he hopes to qualify as such in September. Rightly described as having maturity beyond his years, neither he nor his care has attracted any criticism, still less intervention or scrutiny by any authority.

The mother met X's father, who is almost 36, about eight years ago, in about 2008. It is clear that the difficulties described by Dr Swart aside, this was a particularly problematic relationship, as reflected by the threshold concessions. It was the impact of that relationship that resulted in X first being referred to the local authority in September 2012, then again in February 2013, when the mother reported that the relationship which she disclosed was acrimonious and violent, fuelled by drink, was over. In fact, despite a child in need plan formulated in February 2013, later that year it came to the attention of the local authority that the mother was permitting the father contact to X in circumstances that put X and her at risk and so a child protection plan was devised under the category of neglect.

There was a recurring pattern of issues, drink, contact being suspended, jealousy, threatening messages via social media and that was all despite referrals for the mother to [the charity] to work with her to protect her against domestic abuse. Then in June 2014 twice X presented with injuries and all matters came together with the agreement that X should be received into care, which happened by agreement on 10^th June 2014.

Putting aside the unconscionable delay that has ensued, to which I will have to return, another factor that caused concern was the estrangement that the mother's relationship with the father caused from her parents, a considerable protective factor hitherto. Her father told me of the measures that they had taken long before all of this to set up their daughter in a home to enable her to live independently but very close to them so that they could be on call, "just a couple of minutes away" as he put it. Whatever the immediate cause he accepted, as did the mother, that she had not liked being told what to do and that she had concealed from her parents the bad things that were happening in her home.

So there was a coming together of the consequences of a bad relationship, the rejection of the hitherto successful support structure of her family and the mother's own limitations. It is not in issue that the relationship with X's father is over. He has moved on and has a new partner. The relationship between the mother and her parents has been restored.

The third factor, however, is the enduring one and it falls to be considered directly alongside what is known of X now. Not only had the thinking about X moved on from the time when he was first accommodated to the date of the issue of proceedings, then to the first listed final hearing in December, the very recent work done by the current social worker, the third to have been the key worker, shows it has moved on substantially since then still. This dynamic situation has affected the plans as they have been formulated and renders much of the earlier work potentially out of date because of the limited assistance it provides in determining X's future.

The history of assessment

In June 2014 SW1 did a parenting assessment of the mother. It raised various concerns. It made certain recommendations, which included work to be done with the mother and to include her remaining separated from the father. Then in August 2014 SW2 did a kinship assessment of the maternal grandparents. Despite noting many good things it was negative, pointing to their inability to act at a time when they were, or should have been, aware of the problems that the mother was experiencing as well as a lack of insight into X's needs. In December 2014 SW2 carried out an assessment of the father, again noting positives. They did not outweigh the local authority concerns about his ability to meet X's needs and the relatively early stage in his bringing his drink under control, but again it gave a list of steps that he needed to take, including undertaking a perpetrator's programme.

A further assessment of the mother by SW2 in May 2015 that followed the issue of proceedings was negative. Some of the conclusions are controversial but need not be dwelt on at this stage. The continuing concerns related to her ability to meet more than just basic needs for a boy whose needs were very significantly in excess of other boys of his age and the concern that despite the work that had been done with the mother, such as it was, it was not possible greatly to increase her understanding. That obviously ran alongside other concerns, notably the ability to keep X safe from a violent relationship in future.

Further assessments of the father by the current social worker, SW3, and of the father supported by his parents, ultimately came to nothing because in November 2015 the father withdrew his request to be considered a carer and his parents were unable to undertake X's care or assist as support for their son.

In August 2015, however, the maternal grandparents, who had by then offered to be a support for their daughter, reached the conclusion that it would be better if they put themselves forward as primary carers although there is a good deal of confusion around that because it is the fact that they asked to be assessed as supporters and despite the circumstances in which that came about and indeed the assessment took place, which was highly controversial, an assessment was completed which concluded that the concerns that had been formally identified were enduring concerns and that as the level of X's needs was noting to increase the outcome was negative.

I have recited all of this primarily to set out plainly the evolution of thinking rather than look at the detail of assessment. This was the state of play at the final hearing listed in December and it set the scene for the application made to that judge, which was to permit an independent social worker, Mrs Debbie Gaskin, to carry out an assessment of the maternal grandparents as primary carers for X. It is in the circumstances not surprising that that application was supported by all, not least because of the very considerable positives that the maternal family present that I have already alluded to. Save for the concerns arising from the relationship that the mother had with the father there is simply nothing known against this family. They are of positively good character. None have criminal convictions. They have never needed services. Everyone, grandfather, grandmother, mother and soon, I expect, B, works and has done so consistently. So it goes without saying, but I will say it anyway, that everyone would like this family to be kept together if at all possible.

Events following that order in December did not follow the expected course. About a week before Mrs Gaskin's assessment was due, on 1^st February, the maternal grandparents withdrew as candidates for primary carers and reverted to being supporters for their daughter. MGF explained it thus. He had seen the effect of all of this on his wife which had been, as he put it, disastrous. She was not eating, sleeping and was a bag of nerves. Despite his own personal wish and instinct to proceed he took the decision to withdraw. His wife cited her concern that as X gets bigger and stronger, managing him will be more difficult as well as noting the poor history of longevity of the males in MGF's family. He said that in making the decision which he did "I would not want to think of her struggling" and he made it clear that he was deeply fearful of his premature demise and leaving his wife, then widow, to care for X in circumstances where it would be beyond her.

So Mrs Gaskin's instructions changed and she carried out an assessment over three hours with the mother, her parents and B and concluded in her report on 17^th February that they could create a team around both the mother and X and, with professional support and services, they were equipped and motivated to provide the necessary support which would ensure X's place within his birth family as a much better alternative to any other kind of permanence.

The local authority and the guardian challenged that conclusion and I gave the mother permission to call Mrs Gaskin. By then the local authority had filed further up to date evidence relating to X's needs which, very properly, the mother's counsel sought to put to Mrs Gaskin before she came to court to give her evidence. What I do not think anyone anticipated was an addendum report of substance in which Mrs Gaskin retreated from her original opinion, which retreat she attributed to the increasing clarity around the severity of X's difficulties and the impact that this had in terms of caring for him. So, just summarising those, which she set out very clearly in her report, noting that the problems are more severe than she initially appreciated she highlighted the global developmental delay and developmental difficulties which were becoming more and more challenging for a carer to meet, she noted X's more challenging behaviours which would be difficult for any carer to meet. Indeed, even extremely experienced staff in school and in foster care were finding it increasingly difficult to keep X safe. She noted the risk that X may harm others by reason of the behaviours that I have already mentioned and she gave examples, and she indicated that X was going to require, as she put it, far better than good enough parenting to keep him safe and to help him within his limitations, and with his mother's limitations, to develop.

She drew from Dr Swart's observations that making small developmental gains in terms of mastering basic functional skills were likely to require disproportionate effort from both carers and parents and that either the grandparents or B "would again have to walk each step with M in order to maximise X's potential and life chances" and commented that the challenges in doing so should not be underestimated. She obviously emphasised the importance of understanding X's behaviours and, whilst not for a moment doubting the commitment that the family have to X, she was of the view that there would need to be a high degree of commitment to learning and developing skills and understanding and she questioned whether, practically, that was possible. She noted that MGM was very worried about formal training and becoming involved in local authority assessment, that the learning required to support the mother and X would exceed that required of a connected person's assessment and she doubted whether MGM could in fact complete that process. Whilst also not doubting B's commitment to his half-brother she really took the view that it would prevent B from fulfilling his own potential as a young person to impose this on him, however willing a challenge he is prepared to take on.

As I have mentioned, one of the documents that Mrs Gaskin took into account was Dr Swart's final addendum in which he too recognised that X's needs were more complex than he had appreciated and I need to quote from his report, paragraph 16:

"In my opinion X's complex but also very severe difficulties, especially his now more apparent challenging behaviour, require parenting that I do not think mother would be able to provide even with support. It seems clear from the foster carer's recent information that X cannot be left alone for a minute. This is especially important to hold in mind given that there were historical concerns about M's supervision of X. In my view X's needs are severe and so much so that nothing can be taken for granted.

The demands that a child with X's needs would make on a parent are huge and in my clinical experience parental burnout is common. In my opinion X's slow development progress in the context of high quality schooling and excellent foster care highlight the severity of his global delay and challenging behaviour.

It is quite common for children who have been neglected to demonstrate rapid developmental gains, for example, in speech and language and toileting, when they go into foster care. This was not the case for X. This indicates that his difficulties are not environmental in origin. In X's case his developmental problems are becoming more pronounced and more challenging to meet. X still needs to achieve some degree of mastery of many basic functional skills, for example, bladder and bowel control. This alone can be extremely stressful for parents to deal with. X is unlikely to respond to approaches that work for typically developing or less developmentally delayed children. Making small development gains will require disproportionate input.

Similarly, in order for his speech to develop he will require daily, constant and persistent prompts and teaching. He will, in all likelihood, need to be taught alternative means for communication. Understanding his behaviour is also going to be very demanding. His behaviour is a clue as to what is going on for him emotionally."

He goes on to emphasise that the complexity and severity of X's needs are such that even professionals would struggle properly to understand them. He pointed out that everybody, but particularly parents, need to understand that these are difficulties that are not going to go away, that the demands will be heavy and that skills will have to be developed to care for him. Having insight into the nature of intellectual disability and autism is something that would help.

He concluded this part of his opinion thus:

"In M's case I do not think she is capable of understanding the complexity and severity of X's needs, but more importantly I do not think she has the ability to develop an appropriate repertoire of skills to meet X's needs."

That was therefore the state of play at the outset of this hearing. It is quite clear from what I have said that it has been a very considerable rollercoaster. Before turning to the evidence I want to make clear that there is very considerable criticism, as may be anticipated from the history, of the local authority, the adequacy and accuracy of its assessment, the extent to which the local authority really engaged with the family, appreciated, still less met, the mother's needs. The criticism extends beyond those fundamental matters which are relevant to the robustness of the local authority's plans and its evidential support and the fairness of the process itself. An obvious example is the failure to show the maternal grandparents the assessment of them for almost a year. The court was presented with and spent a good deal of time considering a child permanence report which it was said was presented to the agency decision maker to obtain the endorsement of the plan for permanence in which its patent inadequacies were worryingly apparent, with consequences not just for the decision of the agency decision maker but its implementation if approved, only to discover that the court had in fact been given the wrong document, discovered literally at the last moment. It was in the circumstances relatively slight comfort to discover that the child permanence report submitted to the agency decision maker was comprehensive and accurate and although he did reconsider but confirmed his decision, and I am indebted to him for producing at short notice an addendum to his decision, having satisfied himself that he had in fact seen all the evidence that the court had seen.

I will have to address these criticisms more generally at the end of this judgment, but it is important to flag them up at the outset because they have pervaded the case. They have added unnecessarily to the enormous anguish that this family has already, quite understandably, suffered, but it is important that the parties, particularly the parents, know that I have these criticisms very much in mind and likewise anyone considering this judgment needs to know that the court has been aware of them throughout and maintained them at the forefront of its considerations, particularly having regard to the Court of Appeal's strictures in Re: B-S, namely the importance of satisfying itself that it does have comprehensive and reasonable analyses weighing up the pros and cons of the realistic expectation, the three that all parties accept are open to the court to consider.

The oral evidence

To that end the court heard from SW3, the current social worker since July 2015, FC, X's foster carer since June 2014, AO, the local authority principal adoption officer, Debbie Gaskin, the independent social worker. It also heard from the mother, from B, from MGF and the children's guardian, Laura Grundy.

The court did not hear from SW2, previous social worker and author of several assessments, who is no longer employed by the local authority, who was certified medically unfit to attend and although I know Miss Middleton would have liked the opportunity to cross-examine her was denied by that reason.

I did not hear from Dr Swart, the psychologist. He originally was required to give evidence by the local authority, but on it being discovered that he was on leave abroad the local authority agreed simply to proceed on the basis that it would comment on his evidence. In the event his final addendum, which post dated the issues resolution hearing, created greater difficulties for the mother than the local authority, but no application was made for him to attend which, if granted, would have resulted in an inevitable further adjournment.

The court did not hear from the father. He was present throughout most of the hearing, albeit at times he withdrew from the courtroom itself finding the process very difficult. In the circumstances that the case was presented there was nothing that in fact he could add to his written evidence in which he sought contact with X on him being placed with his mother or in long term foster care and he too opposed the plan for adoption. Nobody required him to give evidence. Finally the court did not hear from MGM for the reasons already identified.

It is not necessary to repeat the evidence in detail here, not least because much of it was properly taken up with the criticism of the local authority which, if the court accepts the evidence of Mrs Gaskin, Dr Swart and the guardian, whilst the subject of necessary comment does not ultimately assist the court in making the decision that is here required.

SW3 is in many ways the one person who has got to grips with the extent of X's needs, an emerging issue that the prodigious delay in this case frankly should have resulted in being picked up far earlier. This emerges very much from her second statement of 11^th March 2016, the diagnosis of autism and global developmental delay in August 2015 is significantly explained by the chromosome 15 deletion identified in September of that year, the speech and language therapist's assessment in March 2016 which identifies the severity of X's communication problems, including the inability to understand spoken language, and the occupational assessment in February 2016 of X's sensory processing difficulties and delay in both his gross and fine motor skills which contribute to behavioural issues, particularly the lack of sense of danger, the lack of self-regulation and his foundation movement skills.

Noting the mother's limitations as identified by Dr Swart, as well as the local authority's own assessment, SW3 did not consider that the mother had the necessary skills to meet X's needs despite having met those of B with success, albeit supported by her parents. Although there was challenge to her understanding of what the maternal grandparents were offering she questioned their ability to provide support at a level and with the understanding necessary to ensure that X's needs were met. B's commitment to X was fully recognised, but she felt that at his age and his stage of life he could not and should not be relied upon as a lifelong source of support.

In her oral evidence SW3 confirmed that it was not the local authority's case that any of X's difficulties were attributable to neglect, a suggestion which had crept into the evidence albeit it was firmly rejected by Dr Swart. She accepted that in X's case the stigma of being a looked after child was not really a factor to consider because he would have no concept of it. In advocating a twin track approach she said that were a good foster carer to be identified first that would be likely to take precedence over the adoptive search, but justifying adoption, which had only been advocated since November 2015, she said that X deserved the same chance of being claimed lifelong as any other child who could not be returned to his family would be given, hence her advocating that plan.

Cross-examined at considerable but justifiable length the important factors that emerged were the evolution of her concerns regarding X and how his needs had not been fully considered, the positive nature of the maternal contact with X, his excitement on seeing the family, the encouragement that he was offered, the attempts to impose boundaries which were only thwarted because of X's inability to respond, the meeting of X's needs in contact and the generally good quality contact. Nevertheless, however, she said that X's behaviour was still very hard even for the professionals to understand. The kicking, hitting, spitting, biting and throwing of things appears almost random but may not be so to X. She emphasised the difficulty of managing it, how it was particularly hard for the mother to manage it when it was less obvious and it had now deteriorated.

Acknowledging that Dr Swart found that the mother does not easily verbalise her thoughts and can take advice on board she also pointed to her inability to pick up cues from X, for example, when he is tired, and not being attuned to those and other presentations of X more generally.

Surprisingly, pointing to the lack of support outside school that the foster carer had been offered, which included no respite at all, she was unable to identify any services over and above school that could be offered to the mother, pointing to the complete lack of resources available. Pressed later about this, however, she said that she agreed with the guardian that there was no feasibly possible support that could be offered that could be sufficiently consistent to meet X's needs to keep him safe. Any such package that could be identified was likely to be limited in time in a child whose needs were not going to be thus limited.

Set against the fact that X is very loveable, commands a great deal of affection from all who know him, including his foster carer who had considered caring for him, only rejecting it because of her commitment to her other foster child, she said that there were formidable problems. X, for a 5 year old, is very petite. Despite that he presents very challenging physical behaviours. It has to be anticipated that as he grows up and gets bigger and stronger this is potentially a very serious issue. X is a child who needs carers with very special qualities, which include very high levels of intuition, not least because of the obscurity of his needs sometimes, vigilance and the ability to anticipate, the ability to work closely with professionals and following advice as well as personal resilience to counter the extremely wearing effect of caring and the need always to place his needs first.

In addition there would need to be a support network and there needed to be a good deal of adaptability to meet needs which would change with development. She said that in her assessment the mother would struggle with this. Her shortcomings were not capable of being made good by her parents. Even if MGM gave up work her inability to engage in this process, as she put it, in a whole hearted way, quite possibly due to her own limitations, would be a serious shortcoming.

The social worker's later evidence in fact followed that of the foster carer who was interposed. In her evidence the scale of the task of caring for X was laid bare and given an immediacy which no report can so completely convey as I myself told her. FC's evidence was simultaneously deeply moving and humbling. Unique in my experience, her evidence concluded with a spontaneous round of applause from the family. She did not need to talk of her pride of X because it was so obvious. A very loving, happy little boy, always smiling. But the level of attention that X requires is complete. She said from waking in the morning he is up and on the go. If you are not ready for him he will pull his bedroom to bits, the mattress off the bed and the wardrobe emptied. He can do that in five minutes. You cannot leave him, she said, in a room on his own. If he can get onto something to climb he will. She has had to remove, for example, dining chairs because he was able to use those to get to the window. She said if he can get the wire off a lamp he will do so. If he does find a toy he will play with it for a couple of minutes only and then move on. He cannot be left in a room alone even with a safety gate because he will find a way of climbing.

Asked about when she did her household chores she said when he is in bed or at school, unless her mother is there. It is not possible to do household chores when he is up. She said he will climb on anything. His recent thing he has found his feet and he is pushing boundaries, like all children, but it is dangerous what he is doing. She said: "I tell him that but I don't think he has any understanding". She gave an example of something that had happened at school where he had stood at the top of the slide and said, no hands, and was ready to launch himself down it. She said: "If I sit down for a cuppa he would be on top of you, so I don't allow hot drinks. He wants to touch them and he has no sense of danger."

She said that before Christmas hitting out started, so she developed a strategy of grabbing his hands. She said as he gets older and stronger if he catches you unawares it hurts. He is quite strong for his age. She said he does not like being told no and that can be the reaction. She said sometimes it produces a crying noise but there are no tears and that is when he starts hitting out.

In respect of communication she said he has his own language and he will make happy or less than content noises, but he will shout and point and you have to guess what he is after. He gets upset if you do not get what he wants and that is when the hitting starts. She said his only words were "mamma" and "nanna". Nanna is the name she uses for herself. She said he has had them for about 18 months and although he tries to use different sounds they are not sounds that are recognisable unless you are tuned into them. Vocabulary, she said, had not increased.

Of strategies to get things done she said everything has to be turned into a game. She described the efforts that she had made at potty training. He had an understanding of signs such as thumbs up or clapping. He responds to saying no by frowning but she now is able to receive and give him a hug, but she said even that took a year to learn. She described difficulties I have already mentioned regarding feeding, the importance also of routines, but she said this. He is used to having what he wants and he needs to have it there and then.

Taken to her witness statement at paragraph 17 in which she said:

"Caring for X is extremely challenging. It is physically and mentally exhausting and can be very frustrating. He requires structure and a high level of supervision to ensure he does not injure himself as he has absolutely no sense of danger,"

she said it was entirely accurate.

She confirmed she would never leave him on his own. She said if the other child and he are both there and she needs to go to the bathroom to go the lavatory she telephones her mother. Otherwise, if she cannot do that, she has to put X in the room behind the safety gate, but by the time that she has been to the bathroom she would have to put the bedroom back together again. She emphasised how much she relied on her mother and brother who live nearby and came and helped very frequently.

It is convenient to consider the evidence of Mrs Gaskin next. A vastly experienced social worker and well known to the lawyers and this court, she commands very considerable respect. The criticisms of her initial report were in a sense unfair because she did not have all the information that she needed about X, but it is right to record that it was her view that X had a family who were both equipped and motivated to provide support to enable him to remain in the family in circumstances that he would need ongoing and extensive professional support for the rest of his minority and beyond. She felt that was the best way of achieving stability and permanence as against a plan of adoption or long term foster care, which she felt was fraught with risk for a boy such as X.

I have already summarised her revised opinion having been brought up to date about his needs, but in the circumstances, although she was the mother's expert, I was invited to and I did call her.

In concluding that MGM was not lacking commitment as such she described her as realistic in feeling that as X grew and became stronger and more demanding with the issue about longevity in her husband's family, as well as her enormous concern about the need to undergo training and attend many meetings, she felt that all of those factors had contributed to the decision to withdraw as a primary carer. She said that whilst family support tends to be the most reliable because of the commitment to kith and kin it brings she said that:

"I almost feel that the mother would have to have someone walking alongside her in every aspect of her parenting so that X's needs could adequately be met and X safeguarded in terms of anticipating his behaviour."

She agreed there was no likelihood of intentional harm being suffered. I will revert to her views about the competing merits of adoption and long-term foster care a little later.

I heard from the mother quite briefly: nervous, pleasant, entirely cooperative. She was very much as I had been led to expect, a very nice, warm person. Her devotion to her sons is complete and not in question. More nuanced questions raised the concern that she was agreeing with everything that was put to her, something that the advocates tried hard to highlight and avoid, albeit not wholly without success.

She has a very unsophisticated view of the matter. That is not a criticism. She accepts that the local authority was rightly worried about her but said that things were different now. Her relationship with her parents is mended. Save when he is at college on a Monday morning B is there to help. She said she knows how hard it will be to look after X, but she would be able to do it. She would work with professionals just as she had worked with Portage before, had learned, for example, brush and ball therapy that she could explain to me, and that she had sought help from and worked with Mind, as Dr Swart had recommended. She said that from that she had learned not to be scared or anxious as well as not to be exposed to domestic abuse.

Having said in her witness statement that the local authority was exaggerating how hard it would be to look after X she said that having listened to the foster carer that had changed her mind. Although she said that she had previously had quite a lot of support, she accepted that she had struggled with supervision, with feeding X, keeping him clean and keeping him occupied. She accepted that she would find it quite hard to anticipate his behaviours but thought that she would not find it difficult to remove dangers to him. Having heard from the foster carer, she was satisfied that she could do it with her parents and B.

She said that her father wanted to carry on working full time, that her mother had two jobs but would be the major support and would give up her job. Although B is around for much of the time, she did say that she wanted him to get a job, to live independently in due course, find a partner and have his own family, and so she acknowledged that he could not support her forever. But she emphasised, and rightly so, that she had brought B up herself, had managed danger for him and said that she had learned in contact how to manage it for X.

B was called by the mother who, again, was exactly as I anticipated. By agreement he, along with his grandfather, sat through the entire hearing. A thoroughly decent, well meaning young man of whom any parent would be proud. His pride in his younger brother was palpable. He described X's delight at seeing him, always happy, always on the go. He acknowledged he is climbing more, albeit he did not take particular notice of instructions to the contrary. He said his mother was willing to take his advice and that did not create a source of tension. He thought that she would cope quite well with X with help: "She raised me and I think she'll be able to cope with X. If not, we will cope."

He described his own plans and ambitions to become a gas fitter. Provided he can get a placement to complete the hours he needs to put in he is hopeful of qualifying later this year whereupon he wants to work thereafter. At some point, as he put it, he imagined living independently and still later having his own family.

MGF gave evidence at some length. He had, as I say, not only sat through the hearing but very noticeably supported his daughter as well as paying close attention to the evidence. Again a completely open and thoroughly decent man, his intentions are not in doubt. He could not have been more straightforward. His wife was not here because she was a bag of nerves at the prospect of giving evidence, but also the nature of the work that the local authority would want her to do, but he emphasised her commitment was not in question and she would give up her work to help her daughter.

He accepted that he and she had not appreciated just how bad things had been in X's family home until X went into care. He described, as I have already mentioned, how they had set her up in her home, but that it had all gone wrong when she met X's father. Things went downhill from them: "She told me not to come to her house. The worst thing I ever did was not going."

He described his anger at SW2's assessment withheld from him and his wife for ten months. He said his first meeting with SW3 was like a breath of fresh air, but his expectation of a reassessment with a new pair of eyes and ideas was ultimately dashed: "I don't feel we got a fair chance to explain what was on offer from the family." By contrast Mrs Gaskin gave them every opportunity, but their decision not to proceed as primary carers was nevertheless taken by him for the reasons I have given.

He saw the future thus. Whilst X was at school the mother would get on with her daily chores. Meals could be at their home or at her home. X would sleep at the mother's home, but the rest of the care would fall to them. MGM would retire and so would be able to do, as he put it, the pleasurable things: "I do believe we can develop X. We are here to get the best for him."

Like his daughter he wants B to fulfil his potential and have his own life with X, but not put his life on hold. He seemed to acknowledge that MGM's decision not to go to X's school and meet his foster carer may not have been wise, as he put it, but said it was made when they decided not to put themselves forward as carers.

Mr Armstrong, for X, explored that with him because MGF had made several references to his wife's resistance to what he called "red tape". It was not really what he meant in the conventional sense of bureaucracy, but it was his shorthand for the need to learn, to attend meetings and to understand. He accepted that his wife had been offered the chance to undergo valuable education, to learn and understand and it would have been helpful, he conceded, had she taken it up and he was not sure whether his wife had really appreciated that fully.

He told me that he had not appreciated the scale of difficulties faced by the foster carer until he had heard from her: "I thought that we would need to give that extra help more than I had envisaged earlier on", but he still thought that his daughter could manage. He accepted that at times she had not liked being told what to do, but because of this litigation he said they had all developed different and better skills and his daughter had a better understanding. There would be stress and worry, but at least the bickering that had existed between the parents was removed from the equation and he thought that his daughter would be more forthcoming now with problems.

The final witness was the hugely experienced children's guardian, Laura Grundy. In her three thoughtful reports she had reached the view consistently that the difficulties presenting M in the management of X were insuperable. Generous in her praise of the mother – polite, warm, affectionate in contact, trying very hard – from the beginning she worried how M could meet such complex needs. Like Miss Moulder and the court, she was concerned that the mother seemed to agree with everything that was put to her, a view reinforced by the mother's evidence which also confirmed the guardian's opinion of the mother's vulnerability. That was overtly apparent from her relationship with the father, but also apparent from what she delicately called the mother's recent poor decision making, a reference to the mother's acceptance that she was recently found at a party in a bedroom with a 19-year-old boy.

The mother and her family's commitment were not in doubt. The grandmother's presentation, she said, raised somewhat similar concerns, but support was not, in her view, the solution. She described the evolution of the grandparents' position which has, in fact, as Mr Armstrong said, gone full circle, but her concern was the lack of "attunement" on the mother and her mother's part, her ability to work with professionals to accept and act on advice. Indeed, she described how she and the social worker went through a list of resources with MGM to help the family but that ultimately they had not felt able to engage.

Addressing directly the criticisms of past assessment she was clear that the outcome would not in fact have been different. She was critical of the care planning, had herself queried why adoption was not being considered, but she did not underestimate the challenge of finding any carer, but an adopter would be a carer for far beyond childhood and for that reason X should be given that chance.

She did not disagree with Miss Middleton's characterisation of the monstrously difficult journey that this family has experienced, who trustingly had felt that professionals would get to grips with the issues and the issue come out all right in the end. She agreed there was a lack of evidence as to what assistance would be available, but she said that she considered the ideal world herself and had concluded that: "It would have to be so extensive it would not support a family placement."

Acknowledging that the commitment of a birth family is an important factor she said that for X his status would not be a relevant factor but long term foster carers can and do change their own personal plans, hence adoption was the better option if achievable. She said that if it had to be long term foster care that she very much hoped it would be a carer who would be able to commit beyond X's eighteenth birthday.

She concluded by telling me that despite all that had been criticised, all the deficits in the local authority case, that the shortcomings presented by the mother and with the support of the grandmother was such that a family placement was not viable.

Submissions

In arguing against the local authority plan Miss Middleton accepts that this case falls to be considered entirely on welfare principles, noting that threshold is fully accepted in her submission with no minimisation. She invites me to the context by way of background of no significant local authority involvement prior to removal and none before those initial concerns I highlighted, the difficult situation that the mother was in in her relationship with the father, but her ready cooperation from the time when X was accommodated onwards.

She reminds me that there were serious shortcomings in the process:

(i) The failure to act on the initial recommendation in the parenting assessments, an assessment that was conducted before proceedings were even issued;

(ii) In particular there was a failure to refer this mother to the learning disability team. She reminded me of the President's endorsement of the comprehensive guidance of Mr Justice Gillen in a Northern Irish case as to the approach necessary for parents with learning difficulties to which I will return;

(iii) There was the failure to act on the recommendations of Dr Swart, or indeed of [the charity], to identify a specialist provider to work with the mother in respect of domestic abuse and to note that the mother herself referred herself to Mind without any assistance from the local authority;

(iv) There was then a failure to work with the mother in a meaningful way during the period of X's pre-issue accommodation, a period of eight months;

(v) There was the failure of the local authority to share the parenting assessment with the grandparents for ten months;

(vi) There was the failure of the local authority to carry out what would be recognised as a proper parenting assessment of the maternal grandparents after directed so to do in August 2015;

(vii) There was the lack of any evidence of support that the local authority was prepared to offer;

(viii) There was a very late change in plan from long term foster care to adoption, not evidenced by any minutes justifying the change.

Miss Middleton nevertheless had to confront the sad facts that:

(i) After an initially relatively positive assessment of the mother by Dr Swart he ultimately felt that X's needs were beyond her and the family; and

(ii) After an initially wholly positive assessment of the maternal grandparents as supporters for the mother Mrs Gaskin did an about turn for the self same reasons

In acknowledging the difficulty in which this places the mother and her parents Miss Middleton argued that nevertheless the best option is for placement within his family for these reasons:

(i) Their commitment has never wavered;

(ii) As flesh and blood it never will in a way that it might with alternative carers;

(iii) They are there for X in the long term in the way that no foster carer or even an adopter might be, acknowledging the lack of alternatives;

(iv) X will have to move because FC cannot keep him but, in addition to that very real loss, X will also lose his family and his school which, on the evidence, may well have to change on a needs basis rather than for geographical reasons in any event.

Thus she submitted that if X cannot be returned to the family not only have the family supported X in foster care without any hint of disruption, they could be guaranteed to behave similarly towards an adoptive placement because they will support whatever plan the court determines is the correct one.

Both she and Miss Choudhury for the father, who really echoed all that Miss Middleton said, urged the court to conclude, absent a return to the family, that this is not a case where nothing else will do for these reasons:

(i) The likelihood of finding an adopter is remote;

(ii) X has no sense of his status;

(iii) The promise of continued contact with his family, which is meaningful to X, dictates that long term foster care is the best welfare option; and

(iv) In so arguing the care plan needs to be amended to identify that twin tracking means just that, so that if a foster carer is found first it should take precedence and the local authority must commit to returning promptly to court to seek a revocation of the placement order.

In supporting the local authority Mr Armstrong invited the court to the conclusion that the avenues that were properly the subject of criticism for not being properly explored by the local authority had in fact now been exhausted and, whatever criticism could be laid at the door of the local authority, there was a clear and evolving picture of a level of difficulty that despite best intentions it was both unrealistic and unkind to place on the mother with the grandparents the responsibility of delivering that which X needed. The guardian had, of course, concluded that there was no level of support that could make up the deficit.

Discussion

I have found this a very difficult and distressing case. The sheer goodness and dignity of this family who, as Mr Armstrong said, have shown a remarkable generosity to professionals with whose views they disagree, MGF pointedly thanking the guardian for her kindness at the end of her evidence, set against what had been serial failures and mismanagement by the local authority, make the position of the parents and the family almost unbearably painful.

But there are only three realistic options argued for: rehabilitation of X with his mother or permanence outside the family, on the one hand either by way of adoption or long term foster care. I therefore need to consider each in the holistic way identified by the Court of Appeal in Re: G, considering whether there is proper evidence before the court from the local authority, guardian and here other sources addressing all the options realistically possible, with an analysis of the arguments for and against each.

The option of a return to the mother

In respect of the first option, a return to the mother, it is in so many ways the most desirable option. The mother and her family present themselves in an attractive and moving way, seeking to reassure the court that whatever went wrong in the past will not go wrong again in the future. Acknowledging that the local authority has in fact not exaggerated X's difficulties they nevertheless maintain that they can pull together to meet his needs. Not only has the mother cooperated, her own difficulties are much better understood by reference to the evidence of Dr Swart. It ought, therefore, to be possible to offer her support and care that can be focussed and targeted on her shortcomings as much as driven by X's needs. The local authority has failed to give any, or certainly any sufficient, consideration to the type of support that could be given to enable this mother to care for X. MGM's obvious nervousness and her own difficulties should not detract from the help that she was able to give the mother to bring B up so successfully.

Without repeating the evidence, and with very little credit to the local authority, the court is reminded of the powerful combination of the evidence of Dr Swart, Mrs Gaskin and the guardian which all, in the final analysis, driven by the extent of X's needs so graphically described by FC, point to the deficit between the enormity of the task and the care available from the mother and her family even with support.

Drawing all these factors together and as developed in the evidence it seems to the court that the advantages of X being returned to his mother are clear and are these:

(i) He would be cared for by his mother;

(ii) He would be able to maintain his link with his birth family, particularly B and his grandparents, as well as being able to see his father;

(iii) The love and affection as well as the commitment on offer are not in doubt; and

(iv) Ongoing cooperation can reasonably be anticipated.

Set against that though there are concerns:

(i) The enormity of X's needs now graphically spelled out;

(ii) The mother's parenting capacity arising from both historic and current concerns as to her ability to meet such comprehensively required needs throughout X's minority;

(iii) The risk to X's safety were he to be in her care, not by reason of any deliberate harm but by reference to the sheer task of constant monitoring, the need to anticipate and the need to avoid making risky decisions;

(iv) The concern that neither the mother nor her principal support, MGM, have the insight into the scale of the task or the level of care required.

The options of permanence outside the family

The second and third options are, of course, both of permanence, albeit with very different legal outcomes with the former carrying lifelong consequences. Adoption too would carry advantages and disadvantages. In its favour:

(i) In all likelihood X's emotional and physical needs would be met in an adoptive placement by a carer or carers who would by virtue of adopting him claim him lifelong;

(ii) X would be placed with carers who would have been comprehensively assessed as having capacity to look after a child with X's needs and specifically matched as suitable to meet his very particular needs;

(iii) There is no likelihood that X would suffer significant harm in the care of adopters. He would be safe and secure and not exposed to the degree of risk of harm that would exist through unintentional neglect;

(iv) As a consequence he would have the chance of leading as normal a life as would be possible for a child with his needs. In particular it would not be a relationship that ended on X achieving his majority, it would be a lifelong commitment in a secure environment in which he would have the best chance of growing up as safe as possible;

(v) Whatever pleasure he derives from the time he spends with his family there is in fact no evidence that X has the capacity to form attachments as they would ordinarily be understood. There will have to be a transition. X could make that as well or less well as would apply to any other carer.

Set against that there are these factors:

(i) There is obviously the likelihood of the loss of the direct relationship with his mother, who loves X very much;

(ii) There is further the likelihood of the loss of relationships with his brother, B, his grandparents and his father and other extended family members which are of value to X and enjoyed by him;

(iii) There is clearly an identified risk of adoption breaking down in X's case, which plainly runs the risk of causing him further harm and disruption.

By contrast with most cases I do consider that the sense of identity in X's case is not a factor that really plays either way with him because there is no evidence that he has any sense of identity at all.

Whilst the factors for and against long term foster care are in this case very similar the additional advantages, on top of careful matching, his needs being met and the avoidance of harm would be the guaranteed ability to maintain family relationships. Set against that are not just the risk of placement breakdown but of premature termination of placement due to changes in the foster carer's circumstances and the fact that the commitment is not lifelong with consequences that on achieving his majority X's prospects will be very uncertain in circumstances where one can be certain that he will still need very high levels of care and almost certainly lack the capacity to make decisions for himself.

Although the route by which this case has proceeded does not inspire confidence I am ultimately satisfied that the case does fully comply with the requirements of the Court of Appeal identified in Re: B-S. As Mr Armstrong submitted, all options have ultimately been considered and exhausted. The mother's position was fully explored in the hearing.

So I am satisfied:

(i) That in the time since X was received into care the extent to which his needs have become understood has increased to the point that he needs complete and comprehensive care from either a specialist carer or carers, or those with the capacity to acquire such skills such as FC plainly did;

(ii) Whilst I do not criticise the mother for seeking to argue in her witness statement that the local authority had exaggerated X's needs and I consider that she has acquired a much better understanding during the course of this hearing leading to the concession that the local authority has not overstated them, having seen, watched and listened to her, I am quite satisfied that with the limitations identified particularly by Dr Swart, Mrs Gaskin and the guardian, it is a task beyond her;

(iii) Furthermore, her proposed support structure will simply not be able to make good the deficit notwithstanding the very best of intentions. The principal proposed support is MGM who, whether because of her own limitations or her own anxiety or a combination of those and other factors, has not felt able to engage in this case, to sit through the court hearing or to give evidence. Even more seriously she turned down sensible offers of meetings that would have educated and informed her, thereby depriving herself of valuable information she needed as a prospective support. By not giving evidence the court was denied the opportunity to make its own assessment, such as it could, and I do believe that she is reluctant to give up the job that she likes. She had not told the independent social worker that it was her plan, but even if she did the shortcomings identified are important. MGF works full time and has no particular wish to retire. I do not doubt that together they will help to a significant degree, but it will still fall short of the exceptionally high level of care that X needs, quite apart from the risk that frequent moves between the two homes would simply reduce the predictability of routines that X needs;

(iv) B desires special mention. His intentions are wholly good and not in question. There is evidence that he may already have compromised his career options by keeping himself available for X, but I agree with the local authority, the guardian and ultimately his mother, grandfather and B himself that he is a young man on the brink of adult life, close to completing his training and with his own life to lead. He neither could nor should sacrifice his prospects in these very sad circumstances;

(v) There is no additional package of support. Putting to one side the gaps in the local authority evidence the guardian really put her finger on it in explaining her inability to devise a package which did not in effect amount to a full time care package of both mother and X. Even if that is wrong, it would not be a sustainable level of care over X's minority;

(vi) That brings me to the final point about such a care package. Would it ultimately be in X's interests, because the reality of X's parenting would be that it would be by professionals and others and not by the family however much they were present and it would not be a substitute for a devoted and dedicated carer who knows X's routines, has developed the skills that X's needs would require and respond to them as well as anticipating signs of danger.

Drawing all of these matters together I have therefore come to the reluctant conclusion that this is a case where family care, very sadly, is not a realistic option. The change of plan from long term foster care to adoption was deeply unfortunate on two levels:

(i) To the family it was a late and seemingly inexplicably and inadequately explained change of plan on a matter of the utmost sensitivity; and

(ii) The finality of the plan, permanent separation from the family, has added an extra dimension to an already emotionally charged hearing that has not been helpful.

The explanation for the late change of plan is in fact a simple one. The current social worker could not understand why her predecessors appeared not to have given any thought to the possibility of an adoptive placement because the view was taken that his needs were such that it was not possible. It is clear that this is not a case of the professionals having properly thought about it and rejected it. It seems to the court that the reality is they did not think about it at all. In reaching the view that she did the social worker's view in fact coincided with both the independent reviewing officer and the guardian, who plainly had had it in mind from the outset, as can be seen from her initial analysis in February 2015.

Whilst I accept it is highly unfortunate, if the local authority earlier decision was wrong and if it is the best plan for X then, of course, it ought to be considered. There was much evidence about this plan and how realistic it is. There was in fact a high degree of unanimity in the social work professionals. So, first, SW3 said that X needs the best chance to be claimed lifelong, as would any other child of his age. She had discussed it with the independent reviewing officer, she had discussed it with the permanence team and she had invited the principal adoption officer to the looked after child review and considered her evidence as to this local authority's success rate in placing "hard to place" children and acted on the independent reviewing officer's view that a time limited search should be carried out.

Next, the principal adoption officer, AO, confirmed that it would be hard work to find an adopter, but it was not unachievable and she described what she called the creative steps necessary to promote X and expressed herself as "quite confident" that she could achieve adoption for him and described what she would be looking for in particular. There is nobody presently on this local authority's books, but a national search has already revealed the possibility of maybe nine families who at the present time are worth investigating.

Next, the independent social worker, Mrs Gaskin, who worked very heavily in adoption as an assistant director for Barnardo's for ten years, in acknowledging that X's age and difficulties would reduce the potential pool, said it was such that it was questionable as to whether a placement could be identified and she recognised that the incidence of breakdown increases in such cases. But she also agreed that adoption offers better stability and greater long term commitment than does long term foster care, so if X could not stay with his family it was a plan that best met his needs.

Finally, the guardian in supporting her view pointed to the fact of an adopter being a carer beyond childhood, something X plainly needs and he should be given that chance.

The stand out disadvantage of adoption for this family is contact post-adoption and that too was explored. As Mrs Gaskin said, although open adoption has long been mooted by professionals at large the reality of it happening is something else. The very strong view expressed by all professionals was that however desirable in X's case it should not be a pre-requisite for potential adopters as it would reduce the potential pool even further. But that said, it was agreed that because of the very positive features already identified regarding the mother and maternal family in particular it was something that could and should be the subject of active discussion with any prospective adopter identified. The local authority agreed that this too should be written into the care plan.

Conclusion

The court has to consider what is best for X and can only consider adoption if nothing else will do. The fact of twin tracking does not mean that something else will do, but the fact that ongoing contact could be guaranteed does not mean that adoption may not be the best option for X. Without underestimating the difficulty of finding any long term carer for X the advantages of adoption do overwhelming point to the benefit of X lifelong, if it can be achieved, because if an adopter, or adopters, can be found it offers the prospect of him being claimed lifelong which would be an inestimable benefit to X despite ceasing to be a member of his birth family. The risk of foster carer disruption, possibly on multiple occasions, with complete uncertainty as to what happens to him when he is 18, is in the court's judgment something which points obviously to adoption as a better outcome whilst at the same time by time limiting the search it recognises the need for a long term solution to be found soon and the reality that finding any carer lifelong as X achieves his sixth birthday will be likely a diminishing prospect.

I strongly therefore urge the local authority to invite any prospective adopter to consider contact. They ought to be able to have access to this judgment and the positive remarks that I hope it reflects. I do suspect that the type of carer who would consider adopting a boy like X, knowing all that I know, and they will know of this mother and her family, would in time consider contact as a possibility and I very much hope that that is the case.

I realise the heartache that this causes X's mother, brother, father and all the family who have been conspicuously well represented, particularly by Miss Middleton who has pursued every point that she properly could, exposing the many unsatisfactory features of the course that this case has taken. She really has said everything that could properly have been said on behalf of her client. But I am driven to the conclusion that X's welfare now and into the future, throughout his life, requires that I grant the local authority a placement order in addition to the care order it seeks. I am satisfied that nothing else will do and that there is no other outcome that is capable of offering X the stability and care he needs.

For the same reason I am satisfied that X's welfare requires me to dispense with his parents' consent to adoption notwithstanding the very high price of permanent separation. This is, I am satisfied, an Article 8 proportionate order.

I therefore approve the local authority plan in accordance with the proposed amendments which I have not seen and I gather may be the subject of some further discussion.

In addition I direct the solicitor for the local authority to write to me, no later than 26^th February 2017, to tell me either that the adoptive search has been successful and is being progressed or of the issue of an application to discharge the placement order.

Before I leave this part of the case I want to repeat my tribute to the enormous dignity shown by the mother, M, B, MGF in particular, in the most distressing circumstances. They, like everyone here, want the best for X and it is unfortunate, to say the least, that their view of what is best for him does not coincide with that of the professionals. The generosity of spirit that they have shown to the professionals in circumstances where in some instances it could not reasonably have been sought has already been commented upon, but it is remarkable nonetheless. I wish them well. I am confident that they will support the plan, however much it hurts, and I hope that they will be rewarded by an equal generosity in due course in the event that adopters for X are found.

Lessons to be learned

I want to leave this case by highlighting the criticisms that have rightly been made of the local authority and the course that this case has taken. They have all been touched upon but it is critical that the local authority is in no doubt as to the seriousness of them and clear as to the action required to avoid repetition. I am going to list them:

(i) The section 20 accommodation in this case was abused for all of the reasons spelled out by the President in Re: N (Children)(Adoption: Jurisdiction) [2015] EWCA Civ 1112:

(ii) X was accommodated for eight months. As a consequence the case should have been all but trial ready on issue;

(iii) It was anything but. Although the mother had been assessed, no steps had been taken to address her limitations or work with her. As the President endorsed in Re: D (A Child)(No.3) [2016] EWFC1: "People with learning difficulties are individuals first and foremost and each has a right to be treated as an equal citizen." The court accepts fully that parents with learning difficulties can often be good enough parents provided with appropriate support. B is the living embodiment of that. This was a serious dereliction and the local authority needs to familiarise itself with the Re: D guidelines as a matter of urgency;

(iv) Although the maternal grandparents were assessed, inexplicably the assessment was kept from them and the mother for ten months. I do not know if the existence of that assessment was even drawn to the court's attention. As early as 2^nd February last year it was recorded that the mother wished them to be assessed and it took a further four months for the assessment already in existence to be disclosed;

(v) Likewise, despite very early assessment of the mother by Dr Swart on 7^th May, who in his capacity assessment on 20^th March had described the mother as "painfully shy, poor self-esteem, quite literal in her understanding", as well as warning of the need to deliver verbal information carefully and then for it to be checked for understanding, that advice seems largely to have been ignored;

(vi) Equally absent until after the first final hearing appears to have been any proper effort to obtain the evidence that the court required to understand what X's issues and needs are. It is to the credit of the current social worker that she did recognise that gap and addressed it so comprehensively;

(vii) Set against that, whatever confusion there may have been in August about what the maternal grandparents were offering, they were not in the court's judgment reassessed as they should have been. Brief meetings at court and dipping into contact does not begin to amount to an assessment, particularly when what was central was the understanding of what this very particular boy needs and the extent to which his mother could not meet that;

(viii) If the social worker's evidence is correct that services can offer nothing over and above that which comes by education, that is the most serious indictment of a local authority which is at odds with the requirement to provide assistance and support set out so clearly in Re: B and re-emphasised in Re: B-S. It may be, as the court ultimately found, that there was no assistance and support that fell short of a form of substitute parenting, but the social worker was unable to identify any service even to dismiss it as inadequate to meet X's needs. That the foster carer had never even been offered respite care was a working example of the same issue. That she told me that she would not have taken it because of the break in routine is neither here nor there;

(ix) I have endorsed the plan for adoption, but its evolution was poor and insensitively handled. The guardian recognised it from the outset. The local authority did not consider it until nine months had elapsed since issue, long after the case should have been resolved.

Each of these failures is serious. They have contributed to the inordinate delay that was apparent to me when the case first came to me on 22^nd March this year, more than 13 months after issue and 21 months after X had been accommodated, with potentially very serious consequences for X's future placement.

The history of the litigation is not beyond criticism either. Having started so late an issues resolution hearing in July, which was ultimately ineffective, was not indicative of any sense of urgency, and having decided that a final hearing could not proceed, re-timetabling on 2^nd July to a final hearing on 7^th December, five months later, suggests all control was lost. Here we are now in April 2016. I am afraid it really is an example of how a care case in 2015 or 2016 ought not to be conducted and I expect my remarks to be drawn to the attention of senior management. I appreciate some of them concern the court, but I expect them to be drawn to the attention of senior management so that lessons can be learned.

[Judgment ends]

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> X (A Child: Profound Needs) [2016] EWFC B36 (22 April 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B36.html Cite as: [2016] EWFC B36

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		Friday, 22nd April 2016