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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) >> E & N (No. 3), Re [2017] EWFC B57 (28 July 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B57.html Cite as: [2017] EWFC B57

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IN THE FAMILY COURT AT READING

		Courtroom No. 3 160-163 Friar Street Reading Berkshire RG1 1HE
		28th July 2017

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

HHJ MORADIFAR:

Introduction

1. I continue to be concerned with the welfare of two children. They are E and N, who are 16 months and six months old respectively. This is the third substantive judgment that I have given in this matter.
2. In my first judgment that was handed down on 1 June 2017 I set out the background to this matter. I will not do so again. This judgment must be considered together with my previous two substantive judgments in this case.
3. The children continue to be the subject of care and placement applications. The Local Authority invites me to make a care order by approving a care plan for adoption of both children. The Local Authority's plan is that the children are placed together with adoptive parents. Pending such a placement, the parents' contact will be gradually reduced to one time per week, then fortnightly and finally a farewell contact. Once the children are placed, the parents will have Letterbox contact. The Local Authority will risk-assess whether it would be appropriate for the Letterbox contact to include photographs from the children. If I approve this care plan, the Local Authority invites me to order that the children are placed for adoption.
4. The parents oppose both applications. The mother invites me to find that she has not been adequately assessed and there is more information to be gathered about the mother's parenting capacity before I can consider the Local Authority's applications. The process that has been engaged by the Local Authority over many years and until this hearing has not given the mother a fair opportunity to demonstrate her parenting capacity. She has furnished the court with a detailed and well-thought-out proposal that would work towards the children's rehabilitation back to her care whilst there are elements of support and safeguards put in place. She will engage in the recommended therapy. She is highly committed to the process. The father echoes and supports the mother's position. He does not put himself forward as a carer for either of the children.
5. The Guardian supports the Local Authority's position and states that the required work that the mother needs to undertake is outside the children's timescale.

The law

6. The applications are brought by the Local Authority, and it is for the Local Authority to prove its applications on a balance of probabilities. Nothing less and nothing more. This means that the parents do not have to prove anything. Before I can make a care order, I must be satisfied that the threshold criteria pursuant to Section 31(2) of the Children Act (1989) is satisfied. Only if I am so satisfied I can then go on to consider whether to make a care order would be in the children's best interests.
7. To reach any conclusions on this, I remind myself that the children's welfare respectively is my paramount consideration and I must make my decisions about each child's welfare by reference to the checklist as set out in Section 1(3) of the Children Act 1989. As part of these considerations, I must analyse and consider the Local Authority's care plan. I must consider all of the realistic options for the children's future. If I make a care order, I can only do so by approving the Local Authority's care plan. I can only consider the Local Authority's application for placement orders if I make a care order. In this respect, the children's welfare remains my paramount consideration. I must decide issues concerning their respective welfare in this context by reference to the checklist that is set out at Section 1 of the Adoption and Children Act (2002).
8. Lord Wilson in B (A Child) [2013] UKSC 33 at paragraph 34, having stressed the proportionality elements stated that:

'Thus, domestic law makes clear that:

(a) it is not enough that it would be better for the child to be adopted than to live with his natural family (In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7); and

(b) a parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (Section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied.

'The same thread therefore runs through both domestic law and Convention law, namely that the interests of the children must render it necessary to make an adoption order. The word "requires" in Section 52(1)(b) "was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 ([2008] 2 FLR 625, para 125)'.

Baroness Hale at paragraph 195 stated this:

'It is well established in the case law of the European Court of Human Rights that "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention" (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the "health or morals" and "the rights and freedoms" of children. But they must also be "necessary in a democratic society". The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236, at para 81'.

At paragraph 198 Baroness Hale goes on to say:

'Nevertheless, it is quite clear that 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. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34, "Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child"'.

Baroness Hale continued at paragraph 215, 'We all agree an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do'. Therefore, in the absence of the parents' consent to a placement order, I can only dispense with such consent if the welfare of these particular children renders it necessary to do so.

9. The test was also helpfully and succinctly set out by McFarlane LJ in W (A Child) [2016] EWCA Civ 793 where he expressed it as follows:

'Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase "nothing else will do" can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and "nothing else will do"'.

10. I have carefully considered two Court of Appeal decisions in Re W (A Child) v Neath Port Talbot County Borough Council & Ors [2013] EWCA Civ 1227 and Re K (a Child) [2015] EWCA Civ 474.
11. Finally, I must ensure that each of the parents' and the children's rights to a private and family life and to a fair trial pursuant to Articles 8 and 6 respectively of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. There can be no interference with those rights unless such an interference is in pursuance of a legitimate aim, necessary, proportionate and in accordance with the law.

Evidence and analysis

12. In coming to my decision, I have read the case papers and heard the oral evidence of eight witnesses. The witnesses were Dr Wilkins, a consultant psychiatrist, who was jointly instructed by the parties; Dr Grace Tantam, a clinical psychologist from Orchard House, which is a residential unit, she jointly with a social worker from Orchard House undertook a viability assessment of the mother; Susan Fern, who undertook a Local Authority parenting assessment of the mother in November and December 2016; Catherine Harris, who is an independent social worker; Mr Michael Fenning, who was the allocated social worker for the children between August 2016 and February 2017; the children's current allocated social worker, who co-worked the case with Mr Fenning and became the allocated social worker in February 2017; the mother; the Children's Guardian, who took over this case following the children's previous Guardian leaving in January 2017. Additionally, I have read and fully considered the parties' respective written submissions. I am grateful to the advocates for producing these documents under some time pressure.
13. The mother and the Local Authority have agreed a threshold document that includes a reference to my findings that are set out in my first judgment. The father disputes his asserted use of cocaine that has been tested as positive through hair-strand testing. This has been the subject of further questions that have now been clearly answered. Having considered the totality of the evidence before me, I have no hesitation in finding that the threshold is crossed and find it so in terms of the revised threshold document dated 24 July 2017.
14. E and N are too young to make an informed decision or to be able to express a reliable view about their wishes and feelings.
15. E was born prematurely and spent the first 110 days of his life in hospital before he was moved to a foster placement. There is some uncertainty about his future functioning. The mother told me that he is developmentally behind by about three months and functions more like a child who is about 16 months old. In all other respects, he has thrived, and he is progressing well. N's birth did not suffer the same complications. He is a happy child and meeting all of his developmental milestones.
16. The children have lived in foster care all their lives and have had regular contact with their parents. Beyond what I have identified above, their needs are in line with any child of their respective ages, and there is no evidence to suggest that this will not continue to be the case in the future. The children have developed a bond and look for each other when the other is absent. With the possible exception of the independent social worker, everybody recognises the importance of this sibling relationship by recognising it as a positive and enduring relationship. No party is suggesting that the children should be separated.
17. I have found the threshold crossed. The issue of the likelihood of harm and the capabilities of the mother in meeting the children's needs are closely connected. The parents, and in particular the mother, have been the subject of a number of assessments.
18. Dr Wilkins undertook a psychiatric assessment of the mother in August 2016. This has been updated in the intervening period with the last update being in June 2017. Dr Wilkins accepted that his use of the word 'relationship' was wrong as there is no evidence that would support the suggestion that the parents are in a relationship. He explained that he relied on the continuing emotional connection as found by me. He explained that his final conclusions in respect of the mother were not changed and only fortified in light of the additional evidence that he had read since writing his report. In Dr Wilkins' opinion, the mother's life experiences have been highly damaging to her and she requires intensive therapy to deal with the effects of her life experiences. Without doing so, the mother remains vulnerable to making poor life choices, whereby she will compromise her safety and that of any child in her care. He is concerned that any change in the mother will not be sustained in the long term.
19. In Dr Wilkins' opinion, the mother has limited capacity to change. Any therapy would be challenging. The trajectory of progress would be illustrated by an upward curve where there would be an increasing improvement with the passage of time. In order to confidently predict such a trajectory, the mother will have to be fully engaged therapy for a period of nine to 12 months. The children may be placed with her only after the completion of therapy which is likely to take up to two years. He further expresses concerns that whilst there are perceived improvements in the mother, he remains of the view that she had limited capacity to change and, at best, the prognosis was uncertain.
20. Dr Tantam, who undertook a joint assessment with a social worker in June, expressed her concerns about the mother psychological make-up. Dr Tantam, whilst not undertaking a full psychological assessment, has come to a settled opinion that the mother's protective capacity is profoundly compromised by her functioning. She lacks any meaningful insight and is unable to provide consistent and psychologically safe parenting. She explained that the mother's horrific life experiences as a child and a teenager have left her highly vulnerable. She has adopted a coping mechanism whereby any issues that are challenging or hard to deal with are supressed to a part that she can ignore and not be reminded of. To this extent, her perception of her life events and recognising risk is highly compromised. The mother's denial of certain events or the risks in her narrative is her reality. From the mother's point of view, her narrative is the truth. The mother is not, in her opinion, misleading when she denies the existence or the accuracy of difficult events. The mother's template of parenting is an avoidant attachment style, which she was interested to observe in connection with the mother and E in contact. This was significant from her specialist perspective. She accepted that this is not noticeable by a social worker or contact worker. She explained that if this was the only issue, there would be some work that could be undertaken with the mother within the children's timescale. However, looking at the totality of the mother's psychological make-up, the mother's ability to make protective and safe decisions is 'really skewed'.
21. When she considered the parent work therapy that is offered by Orchard House and Cambridge Centre for Attachment, she explained that the therapy is for children who have suffered trauma or abuse, and it is designed to equip the parent to be able to provide the child with an ongoing trauma therapy. She did not believe that this would be suitable for the mother in this case as the mother requires intensive and long-term therapy. She explained that whilst it may be said that the mother's attachment to the child would provide a level of security as suggested by Ms Harris, the independent social worker, a child cannot provide the parent with therapy. This must be provided by adults.
22. Dr Tantam was in agreement with Dr Wilkins in respect of the type of therapy that the mother requires and the timescales that are required to complete such therapy. She explained that her overriding duty is to the children. She was of a strong opinion that the therapeutic work that the mother needs to undertake is not in the timescale of E and N. She was confident that the mother will flourish in Orchard House and would demonstrate that she can provide excellent basic care for the children. The issue that requires addressing is her psychological parenting and her ability to be protective by making safe decisions when in the community. She told me that in her opinion there is more than enough evidence available, and she could not support any further assessments. She was confident that in time the mother will be an excellent mother. This will be achieved through a genuine engagement with therapy as recommended by Dr Wilkins and a process of maturation. Dr Tantam expressed the greatest sympathy for the mother and her life experiences. She was impressed with her full engagement and openness in her assessment of her. With great sadness she concluded that mother's required therapy and treatment would be beyond the timescale of E and N.
23. I found Dr Tantam's evidence to be very balanced, highly informative and of exceptional quality. I am most grateful to her for rearranging important personal engagements to attend court.
24. Ms Harris very properly deferred to Drs Tantam and Wilkins in respect of matters concerning mother's need for therapy. She had the benefit of listening to Dr Tantam's evidence and to consider the same overnight before she gave her evidence. At times, she sought to challenge the opinion of the doctors, in particular as to the type of work that may be required to be undertaken by the mother. Whilst I have no doubt she was doing her best to be helpful to the court, in my judgment she strayed beyond her expertise. Her final view was that she could not recommend any further assessments in respect of E. As for N, the height of her recommendation was to raise the possibility of a discrete piece of attachment work and an assessment that would follow thereafter. She did not positively recommend this course of action but raised it as a possibility for me to consider. To this end, the parents have been able to provide the costing and the timescales for such a discrete piece of work to be undertaken by the Child Centre for Attachment. This work will be concluded in December 2017. In the circumstances of this case, I am not concerned about the costs that are associated with this.
25. Mr Fenning's evidence was amongst some of the most factually impoverished and unhelpful evidence that I have ever heard from a professional. He demonstrated that he had little knowledge of the case. He was unable to comment on any events that predated his involvement despite being the allocated social worker for six months. He was unable to explain the decision-making process through which he came to conclusions about these parents. He was argumentative in the witness box and unable to provide a balanced analysis of any of the issues during his involvement in the case. His evidence was an astonishing display of how little he knew about this case.
26. The children's current social worker gave a more measured and balanced evidence about the mother. She was able to explain that she was involved in the removal of N from hospital, and she did not consequently feel that the mother would engage well with her. She had had two meaningful conversations with the mother since her allocation to this case in February 2017 and has relied on other professionals to communicate with the mother.
27. Much to my surprise, she told me that this Local Authority has a general policy against post-adoptive direct contact. I do not know if this is correct. If such a general policy is in place, it cannot continue or implemented. Each child's needs must be assessed individually in circumstances the combination of which is unique to that child. To this end, I am going to ask the head of Children's Services from this particular Local Authority to write to me explaining if such a policy exists and, if so, the premise upon which policy has come into existence.
28. The Local Authority's complaints about the mother's lack of engagement are based on historical events. At best, the last time the mother was offered any form of therapy was in 2015. It is important to note that the times these services were offered to the mother, she was a teenager or a care-leaver. She was deeply troubled and at that time misusing drugs and alcohol. I found that there was a real lack of analysis by the Local Authority witnesses when giving evidence on these issues.
29. I next heard from the mother. The mother was very genuine in her oral evidence. I found her to be doing her level best to answer difficult questions. She told me she would do anything that is asked of her. I was left with no doubt that she would do that. Her love and affection for the children was clear and obvious to me. I note that her circumstances have much improved in the recent months. She appears not to have had any contact with the father, and she is making a genuine attempt at prioritising the children's needs. I was very impressed with her. I was very impressed with the measured way she gave her evidence, conducted herself in the witness box and generally during the course of the hearing. I was impressed with her unquestionable commitment to the children.
30. The Guardian has been involved in this case since the beginning of this year. He has over this period of time given careful consideration to the need for further assessments. He was supportive of the mother being assessed by an independent social worker. For very proper reasons, he has at times vacillated over the need for a residential assessment. At his suggestion, I was invited to order an extended viability assessment of the mother at Orchard House. In his conclusion, the Guardian, in common with many other professionals, expresses a highly sympathetic approach to the mother and the circumstances that she found herself in as a child and teenager.
31. The Guardian summarised the issue as ultimately being one of timescales. In my judgment, he had tried very hard to find a reason to justify a further adjournment and assessment of the mother but ultimately could not as the primary and the crucial work that the mother needs to undertake is the intensive therapy that will be outside the children's timescale. He reminded me that once the work is completed, only then there may be a further assessment or other work undertaken with the mother. This would take at least two years and is clearly outside the children's timescales.
32. He is of the view that the parents' contact should continue until placement. He was pleased that the Local Authority will consider giving the parents photographs of the children through Letterbox contact subject to it being risk-assessed. He is also of the opinion that the question of direct contact must be considered but will always be the subject of each parent's ability to be able to manage it appropriately and the adoptive parents' willingness to engage with it. He was not aware of any general policies against post-adoptive direct contact and was of the view that this must always be considered and assessed on an individual basis.
33. I have come to a settled view that it is not in the interests of these children to be separated. Their relationship will be an enduring, important relationship that will, I hope, continue into adulthood. The Local Authority's plan for these children will sever their links with their parents. This is clearly a great loss to both of these children and, as I set out above, in law it is only permissible where nothing else will do.
34. Mother's heritage is Indian and Portuguese. The father's heritage is black African. Such a rich cultural mix is a significant factor that I have weighed in the balance when coming to my decision. As the Guardian stated, this factor has the potential for reducing the pool of prospective adopters giving rise to the possibility of a delay in placement of the children. If, however, the children are placed with the mother, their cultural needs would be more assuredly met. The mother's proposals are well thought out and well planned. Her proposal would provide the children with a chance of remaining together and to be brought up by their mother. The importance of this opportunity cannot be overstated. The benefits to the children by embarking on this path are all too clear and obvious. I have considered all of the options, including those that have not been advocated by the parties.
35. The greatest tragedy about this case is the consistent failure of the professionals to provide for and to meet the mother's needs as a child and a teenager. The temptation to remedy that failure in this court is all too great.
36. In my judgment, there are only two realistic options: the Local Authority's plan and those put forward by the mother. The weight of the evidence is overwhelmingly against the option put forward by the mother. I have tried very hard to consider every realistic variation of that option that would best meet the children's needs. Sadly, the evidence only supports one option of meeting the children's welfare needs, and that is the plan for adoption.

Conclusion

37. Having considered all of the evidence that I have set out above, I can only come to the conclusion that I must approve the Local Authority's care plans for both children, subject to the parents' contact continuing until placement, the Local Authority's assessment of the possible exchange of photographs within the Letterbox scheme and to explore the possibility of direct contact if this can be managed safely.
38. Having undertaken the balancing exercise under the provisions of the Adoption and Children Act 2002, I dispense with the parents' consent to adoption as, in my judgment, the welfare of each of the children demands it.
39. Accordingly I make a placement order.

Postscript

40. Since handing down this judgment, the Head of Operations at the local authority has written to me confirming that the local authority does not have a general policy against pot-adoption direct contact. I am most grateful for this clarification.
End of Judgment