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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) >> A Child, Re [2016] EWFC B41 (09 May 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B41.html Cite as: [2016] EWFC B41

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IN THE FAMILY COURT SITTING AT LEEDS

		Leeds Civil Hearing Centre Coverdale House 13-15 East Parade Leeds LS1 2BH
		09/05/2016

Introduction

1. In these proceedings I am concerned for Z aged six months old. Her mother is M. The identity of her father is unknown, the two men who have been tested in these proceedings both having been ruled out. Z has a half-sibling who lives with his father. That man was named as Z's father on her birth certificate but DNA testing proved he was not and a declaration of non-parentage was made on 11 March to enable Z's birth certificate to be corrected.
2. The local authority issued an application for a care order in respect of Z on 10 November 2015. There were concerns regarding Z's welfare as M had a long standing heroin addiction. On 19 October 2015 M was admitted to hospital with a very serious infection, resulting in a decision that in order to safeguard Z M would have to give birth via emergency C-Section. This happened the following day and Z was born exhibiting withdrawal symptoms.
3. At the first hearing of this matter before me on 17 November an interim care order was made and directions given for the filing of evidence including assessments. There have been some minor changes to the timetable since then and at the issues resolution hearing on 6 April this final hearing was listed.
4. Early in this case her half-sibling's father said he would wish to care for Z even if she were not found to be his child. As a result the plan was that both the mother and he would be assessed. However neither of them has engaged in the proposed assessment. M says she is not well enough to engage in the assessment process and he apparently shows reluctance to engage if M is not engaging. M's treating physician has filed a report indicating that though she has health problems there was nothing that would prevent M from engaging with the assessment process.
5. Z remained in hospital until 18 December when she was discharged to foster care and she has remained in that placement ever since. M has not had contact with Z in any formal way since 9 December, although she has seen her on two occasions at medical appointments.
6. The mother's solicitors have struggled throughout to get instructions from her and she has not filed any final evidence. I have seen evidence that she was served personally by the local authority on 18 April with the most recent paperwork including the application for a placement order. No concessions have been made by M regarding threshold, nor do I know the mother's views in respect of plans for placement of her daughter for adoption.

The Issues and the Evidence

7. In preparing for this hearing I have read the full bundle of papers provided to me in this matter and have heard submissions from the advocates. No evidence has been heard as M did not attend to contest the applications of the local authority
8. The local authority, supported by the guardian, say that Z cannot be placed with her mother and, in the absence of any other potential family carer, should be placed for adoption. The local authority has struggled to complete an assessment of M because of her unwillingness or inability to engage but relies on such information as it has from the assessment together with what is known in respect of the mother from her own childhood, when the local authority were involved, and since.
9. M has had a long standing heroin addiction for over twenty years and records suggest she has also misused alcohol and prescription medication. She has been involved in sex work. The extent of her drug misuse has caused significant health problems for her, including serious infections resulting in hospital treatment. At the time of Z's birth M had to be put into an induced coma and was treated in the intensive care unit. She has been unwell for much of the time these proceedings have continued, including spending time in hospital.
10. M is not engaging with her worker at a substance misuse agency. Since his involvement with her began in the summer of last year he has only spoken to her on handful of occasions and she has only attended one individual session. Records at the service indicate she has been in treatment since 2005 and there has been a history of poor engagement and progress. When she has engaged better this is not been for sustained periods and has tended to be around times she has wanted to prove herself in respect of her older child. A test on 14 January was positive for opiates, cocaine and benzodiazepines as well as her prescribed methadone. She has failed a number of appointments since then and refused to give a specimen for drug screening on 18 March. M's worker says that her health has been deteriorating for some time, largely as a result of her substance misuse.
11. As a result of M's situation the local authority does not support placement with her. The social worker in her final statement considers whether substantial support could be put in to enable her to care for Z but the conclusion is it could not.
12. The local authority carried out a viability assessment of the maternal grandmother which was negative and neither she nor her daughter have sought to challenge the outcome of that assessment. That means there are no family members in a position to be considered as alternative long term carers for Z.
13. The local authority's plan for Z therefore is one of adoption on the basis that she needs security and stability throughout her life and adoption is the only way that can be achieved. The social worker in her final statement looks at the options for Z including long-term fostering and adoption and concludes that the best outcome for Z would be adoption. It has the advantage over long-term fostering of giving Z the emotional security and stability she needs if she is to achieve her full potential. Obviously a foster placement would have the advantage of keeping links to her birth family but the reality is she is having no contact with them at the current time in any event.
14. Z has certain health problems as a result of her premature birth and I have considered medical evidence in this regard. The evidence is that Z is doing reasonably well when considering her premature birth. The local authority acknowledges her health issues could have an impact on identifying an adoptive placement for her but are optimistic a placement can be identified, given advice from the specialist team who would deal with this. The care plan says an active search would take place locally but then regionally and nationally if required.
15. Contact between Z and her mother has now been suspended given that the mother had stopped attending and it would not have been right to keep taking Z out of her placement unnecessarily. The plan if final orders were made as sought would be for a farewell contact once an adoptive placement has been identified. Thereafter there would be indirect contact between Z and her mother on an annual basis through the letterbox scheme and also with her half sibling if that child's father is supportive.
16. The local authority's plan is supported in its entirety by the guardian. She agrees that the mother, given her lengthy substance addiction and lifestyle issues, would not be able to make the necessary changes within a timescale suitable for Z. The guardian also supports the proposal that the only future contact should be a farewell contact once a placement is identified.
17. In terms of planning for Z, the guardian notes Z's health difficulties and that this may have an impact on identifying a placement for her. Given Z's particular needs, the guardian considers it important that both local and national searches are done immediately, rather than consecutively, to try to reduce the period of time it may take to find an adoptive match.
18. If the local authority has been unable to find an adoptive match after a year, the guardian suggests the care plan of adoption should be reviewed, and consideration to be given to revoking the placement order. She understand that if the local authority is unable to find adoptive carers for Z then Z's current foster carers would wish to bring her up. The guardian expresses the hope that that this is something the local authority would assess as a contingency plan, given it would have the benefit of maintaining Z's existing primary attachments.
19. Sadly I have no idea what M's wishes for her daughter are. The mother's usual solicitor has tried hard to get instructions but without success. He has managed to speak to her stepfather who told him M was not well but had not been attending her own hospital appointments. The social worker says M was seen to be gentle and affectionate with Z when she saw her in February and I have no reason to doubt she loves her daughter. She has told the social worker she struggles to see Z as she does not want to bond with her, knowing that ultimately she would not be able to care for her, and that may well explain M's disengagement from the court process.

Threshold

20. The local authority invites me to find that threshold is met such that public law orders could be made. It invites me to find that the following facts are proved:

a. M had a traumatic and chaotic childhood, which has impacted upon her behaviour as an adult and her ability to meet the needs of Z.

b. Following the birth of her older child eight years ago there were numerous referrals regarding neglectful parenting due in part to M's long-standing drug misuse. As a result of this her older child lives with its father and M is allowed supervised contact only.

c. The mother has a long-standing addiction to heroin and her lifestyle means that Z would be likely to suffer emotional harm and neglect as a result.

d. The mother used drugs during her pregnancy, putting her unborn baby at risk of significant harm.

e. Z was born prematurely, showing signs of withdrawing from drugs and was treated for this with morphine.

f. The mother has in the past tried to stop her illicit drug use but then returned to this lifestyle. There is a risk of this occurring again which would leave Z at serious risk of harm.

21. On the basis of the evidence which I have read, which has not been challenged by the mother, I am satisfied on balance of probabilities that I can make the findings as set out in relation to each of the matters set out in the preceding paragraph and I do so, finding therefore that threshold is met.

Decision

22. I now turn to consider what orders if any are in the best interests of Z. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are "very extreme", and should only be made when "necessary" for the protection of the child's interests, "when nothing else will do". The court "must never lose sight of the fact that (the child's) interests include being brought up by her natural family, ideally her parents, or at least one of them" and adoption "should only be contemplated as a last resort".
23. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the options for Z, taking into account the assistance and support which the authorities or others would offer.
24. In reaching my decision I have taken into account that Z's welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of Z and her mother as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of the children's rights and be proportionate.
25. A placement order is sought by the local authority in respect of Z. The court cannot make a placement order unless the parent has consented or the court is satisfied that the mother's consent should be dispensed with. A court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" consent to be dispensed with. In that context I am conscious that "requires" means what is demanded rather than what is merely optional. I should also say that, given that her half-sibling's father is not Z's father and I have made orders enabling the entry in the Births Register to be rectified, he does not fall into the category of a person whose consent I need to consider.
26. In Z's case I have to ask myself whether she could be placed with her mother or whether she should be adopted and I have to balance the pros and cons of each of the options being presented to me. McFarlane LJ in Re G [2013] EWCA Civ 965 said "What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options." In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002, and propose to consider the evidence in the light of those factors.
27. I have to consider Z's particular needs, and also her age, sex, background and any characteristics of her which are relevant. As with all children, Z's primary needs are for stability, security and continuity of care in an environment that will safeguard and promote her welfare. She is a young baby and is very vulnerable. She has particular health needs as a result of her premature birth and possibly due to her having experienced her mother's drug misuse whilst in the womb. All of Z's needs have to be met by the person caring for her.
28. Z's wishes and feelings cannot be identified or taken into account in any significant way given her young age. I can assume that she would want to grow up in her birth family if that were safe for her.
29. Very important in this case is the issue of any harm which Z has suffered or is at risk of suffering. Linked to that is how capable her mother is of meeting her needs. Z suffered harm in the womb due to her mother's drug use as evidenced in her presentation when born. The likelihood of future harm as at the time this case began was met as set out in the threshold criteria recorded above. From all the evidence I have read and heard I am satisfied that that risk of harm is just as likely now and there is no support or professional involvement which could avoid this. The mother very sadly is unable to overcome her drug addiction and as a result cannot meet her own health needs let alone care for her baby daughter. She has understandably chosen not even to have contact with her daughter, it seems because she does not want to form an attachment to her daughter which I imagine she sees will inevitably end at the conclusion of this case.
30. Were Z to be placed with adopters, there would be no real risk of harm to her given the assessment process prospective adopters go through. Those carers would be able to meet all of Z's physical and emotional needs. I have to accept that adoption would mean Z would lose a relationship with her mother but the reality is there is not one given the lack of any contact.
31. I have to consider the likely effect on Z of any change in her circumstances. She is currently in foster care and of course will have to leave that placement whatever decision I make, which will have an effect on her. The loss of those carers will have an impact on Z but that is inevitable given that she cannot remain with those carers throughout her childhood. Again I know the local authority will mitigate that as best it can.
32. When considering a plan for adoption for Z, I must consider the likely effect on her throughout her life of having ceased to be a member of her original family and become an adopted person. Adoption will legally sever Z's relationship with her birth family and the plan is for no direct contact with them throughout her childhood. Again, the reality though is that she has no meaningful relationship due to the absence of any contact.
33. Balancing then the two options that I have, on the basis I do not accept fostering would be appropriate for a child of Z's age, it is a very simple task. Clearly adoption is the best option as it ensures Z will have permanence in a "forever family", the only way this can happen given her mother's difficulties. One cannot but feel immense sympathy for M in her addiction, particularly looking at her own poor experiences as a child which I have read about in the court papers. It is entirely understandable that she has chosen not to see Z, to avoid forming an attachment given the likely outcome of this case, and in no way can that be taken to say M does not love her daughter. However, she knows as I do that the option of Z living with her is simply not viable. The alternative of adoption would in every way meet Z's needs and has to be the right outcome here.

Conclusion

34. Balancing then the two options I am satisfied that there is no realistic prospect of Z being returned safely to her mother's care, and that her needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority's final care plan for this little girl is a proportionate interference in Z and her mother's family life and in her best welfare interests. I therefore make a care order, adopting threshold as set out above and approving the local authority's plan of adoption. Having concluded that Z's welfare requires me to dispense with her mother's consent to placing her for adoption, the word "require" here having the Strasbourg meaning of necessary, "the connotation of the imperative", I make a placement order authorising the local authority to place Z for adoption.
35. I would invite the local authority to consider carefully the guardian's recommendation as to the importance for Z of both local and national searches being carried out concurrently rather than consecutively. The reality is it may not be easy to find adopters for Z given her difficult start in life and it is important that the widest possible search is carried out early on. I also endorse what the guardian says about the importance of the local authority being proactive in looking at alternatives for Z if an adoptive placement is not likely to be found. Clearly it is for the local authority to assess, but one can see the advantages to Z, if she cannot be adopted, of her remaining with familiar carers who are well aware of her difficulties, have evidenced they can meet her needs, and are committed to her long-term. Foster care is never the optimum outcome for a child of Z's age but her current placement may be an excellent 'second-best' to the plan of adoption. I would also encourage the local authority to bring this matter back to court promptly if the plan for Z ceases to be one of adoption. I reserve all future applications in relation to Z to myself.
36. There is one further direction I wish to make. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. This judgment, in setting out what I have read and heard in court, gives at least a summary of that start. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing Z up. I propose therefore to make a direction that this judgment must be released by the Local Authority to Z's adopters so that it is available to her in future life; that release however is on the basis that it should not be disclosed beyond them or any medical or therapeutic staff working with the child or family. It is very important therefore that the judgment is passed on to the Adoption Team to give to them. I have written this not for the benefit of the adults but for Z and wish to be sure it reaches her.
37. Finally I also make an order for public funding assessment for both of the respondents in this matter.
38. I hope that my reasons as given are sufficient but if the advocates require any further detail to be given I would ask them to let me know.