JUDGE’S NOTE:
“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 children and members of their 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. PR16C00397
THE FAMILY COURT AT BLACKBURN

64 Victoria Street 
Blackburn

Friday, 27th January 2017

Before: 

HIS HONOUR JUDGE BOOTH

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In the matter of:

Re: H (A CHILD)

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Transcribed from the Official Recording by
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Counsel for the Local Authority:  MISS BENTLEY
Counsel for the Respondent Mother: MISS WALL
Counsel for the Respondent Father: MISS NEWTON
Counsel for the Children/Guardian: MRS. GRIFFIN

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JUDGMENT
JUDGMENT

1.	THE JUDGE:  I am dealing with what was listed as a final hearing in respect of care proceedings concerning a little girl I shall call Margaret who is just six months old.  For reasons which I will explain in due course, this will not be the final hearing in Margaret’s case.  

2.	The applicant Local Authority is Lancashire County Council, which has been represented by Miss Bentley.  Margaret’s mother is aged 21 and has been represented by Miss Wall.  Her own mother has sat in throughout these proceedings and sat with her.  Margaret’s father is also 21 and has been represented by Miss Newton.  He has not attended this hearing but Miss Newton has had continuing instructions from him.  Margaret has been represented by her guardian, Ms Sally Wright, and her counsel, Mrs Griffin.

3.	I heard evidence from the following people: Miss Holmes, Margaret’s social worker, Dr Ravenscroft, psychologist, and Ms Atkinson, independent social worker. Margaret’s mother spoke to me from the witness box. Nobody had any questions for her. Finally I heard from Ms Wright.

4.	Let me deal with the procedural history very briefly.  Margaret’s mother did not realise that she was pregnant until about the twenty-sixth week of that pregnancy.  At that stage, she made contact with the relevant authorities.  However, Margaret was born early: she arrived in the thirty-third week of pregnancy.  She stayed in hospital for a little while and it was only at the hospital that concerns were expressed about her mother’s ability to care for her new born baby.  For some reason, there was a delay in the referral from the hospital reaching Social Services. There was no pre-proceedings involvement, no enquiries and no assessments, and with initial decisions having to be made on the basis of very scant information.  

5.	The arrangement that was put in place when Margaret was fit to be released from hospital was that she and her mother went to the home of the maternal grandmother.  That was the position when the proceedings were issued on 1st August 2016 and when the matter came before the court on 3rd August.  The arrangement that was put in place at that hearing was for Margaret and her mother to move to a mother and baby foster placement.  That is where they have been ever since.

6.	Proceedings came back before the court on 31st August 2016 when comprehensive directions were given for further evidence, including a psychological assessment of both parents, a PAMS assessment by an independent social worker of both parents and an assessment of potential alternative carers identified from within both families.  The case came before the court for IRH on 13th January 2017.  There had been some delay: the Local Authority final evidence was late.  The case did not resolve at the IRH and the final hearing this week was directed to me.

7.	The local authority’s care plan is for Margaret to be made the subject of a care order with a care plan for adoption. When the case was commenced this week there was no placement application.  That was remedied but at the very last minute.  Margaret’s guardian complained in her placement report of receiving the placement application one hour before her report was due to be filed.  

8.	What also emerged in the very final preparations of this case for final hearing was that one of the assessments of family members had not been written up; this was an assessment carried out back in October.  The outcome of the assessment was known – namely, that the family members were not regarded as suitable by the Local Authority – but, because the assessment had not been written up, those family members were unaware of the reasons why the Local Authority did not regard them as suitable and plainly had had no opportunity to challenge that assessment.  That was remedied during the course of this week.  Having been served with a copy of the assessment, those family members sought advice and came to court wanting to be further assessed and challenging some of the factual matters relied on in the assessment that they had just been given.  There was unanimity of view that they required further assessment, and that given that there was now the possibility of a place for Margaret within the family, it could not be said that nothing else but adoption would do. 

9.	The matter was referred back to the Local Authority Agency Decision Maker who changed their mind that Margaret’s case was an appropriate one for adoption.  Therefore, the Local Authority was left in the position of not having a valid final care plan to put before the court.  It is, therefore, not possible for me to conclude Margaret’s proceedings today.  

10.	The consequence of that is that Margaret’s proceedings will extend beyond the 26-week statutory time limit.  Given her age and her circumstances, I regard that as very unsatisfactory.  However, this hearing has not been wasted.  It has been agreed that it might be possible for me to decide whether or not her mother can in the future care for Margaret or whether I can rule her out and say that the prospect of her caring for Margaret in the future is something that is not a realistic option.

11.	The difficulty that this case throws up is one referred to by the President of the Family Division, Sir James Munby, in Re D (a child) (No. 3) [2016] EWFC 1.  He referred to the profound significance of the decision that he was being asked to make in that case for both the child concerned and his parents where a local authority applies for a child to be made available for adoption.  He said that such a decision has the most profound personal, emotional, psychological and social consequences.  For the parents it means the permanent loss of their child, with the ultimate decision for the child and his parents being something that they would have to live with for the remainder of their lives.  What he said that in the case before him made things so difficult was that the court was only concerned with the family because of the parents’ learning disabilities and, in his case as here, where there had been an initial plan for mother and child to be together.

12.	In that case, he set out the relevant law.  I adopt what he said.  I repeat only this.  In every decision that I take in determining any question with respect to the upbringing of Margaret, her welfare is my paramount consideration.  In deciding what is in her best interests, I have to apply the welfare checklist in section 1(3) of the Children Act 1989, and, because this case raises the spectre of adoption, I must also consider the welfare checklist in the Adoption and Children Act 2002.  I must consider the rights to family life of both Margaret and her parents and recognise that any inference with those rights must be a proportionate response to the difficulties Margaret faces.

13.	The Local Authority position can be stated very simply.  Sadly, says the Local Authority, such are mother’s difficulties that it is simply not possible, even with support, for her to care for Margaret in the long term.  

14.	The mother’s case is that, whilst recognising that she has difficulties, she desperately wants an opportunity, a continuing opportunity, to care for Margaret and asks for support.  Miss Wall, on her behalf, says that there is a significant defect in the Local Authority case in that it has failed to investigate all the possibilities of support for this mother and this child and that, therefore, it is simply impossible for me to say that there is no realistic prospect of Margaret being maintained with her mother.  

15.	Her father’s position is that he does not put himself forward as a carer for Margaret.  He cannot support the Local Authority’s position but does not actively oppose it.  Miss Newton described him as being neutral as far as mother’s wish to care for Margaret is concerned but he does support the further assessment of the family members.  

16.	Margaret’s guardian has taken the position that the Local Authority is correct in its stance that, sadly, no amount of help and support will allow this mother to provide adequate and safe care for her baby.

17.	Let me move on to paint a pen picture of the people with whose lives I am concerned.  First of all, Margaret.  Within the placement papers, I have a photograph of her and I have a detailed description of the little girl she has become.  She is described as a happy baby who smiles a lot with a gorgeous smile that lights up her face.  I am told that she loves attention, is inquisitive and is starting to find her voice.  She loves bath time and splashing in the bath.  She likes her toys, in particular a Peter Rabbit toy.  She enjoys being the centre of attention.  She loves interacting with people, enjoying sitting at the dining table whilst people are eating, and she is described as becoming a little chatterbox since finding her voice.  She gets bored easily.  She enjoys cuddles, likes to be swung and she likes to be handled.  Now that she has started the weaning process she is enjoying her food.  She is also able to express her likes and her dislikes and is not afraid to let people know her views.  She is described as independent and stubborn and has something of a temper like her dad.  She sounds delightful.

18.	I do not need to spend any time describing her father, given the stance that he has taken, but I do need to spend a little time describing her mother.  At 21 years of age, she looks, and in many ways behaves, younger than her years.  She describes herself as something of a tomboy and does not like wearing dresses.  She has been the subject of a psychological assessment and a PAMS assessment because of her known history.  She attended a special school and left with limited qualifications.  She was described in Miss Wright’s first analysis as not having achieved a level of independence in her adult life that would suggest that she is able to care for a child.  Ms Wright said this:

“She has not looked after herself in an environment that is not supported.  She was raised in her mother’s household, moving to supportive hostel accommodation after she left school.  She had a brief but unsuccessful attempt at living with [Margaret’s father] and she stayed on a sofa in her father’s one-bedroomed flat rather than return to her mother.  She only moved to her mother’s after Margaret was born as the Local Authority insisted upon this.  She does not regard this as a permanent arrangement.”

19.	Within the psychological assessment prepared by Dr Rasha Ravenscroft and dated 2nd November 2016, Dr Ravenscroft carried out a full assessment of her abilities.  The assessment confirmed what Margaret’s mother knew from assessments that had been carried out when she was at school: she has a problem with her memory.  Dr Ravenscroft said this (at paragraph 6.8):

“[Her] extremely poor working memory skills … directly affect performance in acts of daily living.  [Her] working memory difficulties are in the bottom two percent of the population of her age.  These difficulties will directly affect her ability to learn both verbal and non-verbal information.  [Her] relatively good processing speed almost conspires against her, as to others she will come across as being able to readily take in the information; however, her poor working memory will result in the information being quickly forgotten.”

20.	What is working memory?  It is rather more profound than simply forgetting things that one has been told or read or seen.  It is a process whereby an individual learns how to carry out tasks so that those tasks become almost automatic.  The example I explored with Dr Ravenscroft was that of driving a car.  Anyone who has driven will have had the experience of realising that they have driven a long way without realising where the time has gone and without consciously applying thought to what was going on, both in the road ahead of them and in the mechanics of driving.  That is the consequence of having an effective working memory.  Its ultimate manifestation is in top-class sports people who talk about being “in the zone” when their sporting activities come almost without thinking, as compared to when they are nervous or under pressure, where their performance deteriorates because they have to think about things.  An absence of working memory would mean that every single task undertaken by a person would seem to be being undertaken for the very first time.  

21.	Life presents a challenge for Margaret’s mother because she falls towards the end of the spectrum where everything is new.  It means that, in practical terms, she has difficulties functioning; so, for example, being in a kitchen, cooking something, with the television on and having a conversation with somebody else is something that she cannot manage.  At paragraph 6.4(1), Dr Ravenscroft says this:

“In my view, [she] appears a lot less able than her assessment of cognitive functioning would suggest and this is certainly borne out in the assessment of adaptive functioning.  [She] lacks the insight into her own difficulties relating to her poor working memory, an ability required when acquiring new skills.  The fact that [she] has indicated that she has requested not to live with Margaret’s father in any event because she would never leave Margaret in his care illustrates a limited insight in relation to her own ability to live independently and care for her daughter without support.”

She goes on (at paragraph 6.5(7)):

“It is my opinion that [her] working memory difficulties will permeate all aspects of her adaptive functioning skills, such that she will struggle to cope with the demands of living independently and caring for her daughter on a sole basis despite her best intentions.  She is likely to struggle to meet Margaret’s health and developmental needs as she grows.  She may also struggle to provide routine and consistent care without additional support mechanisms in place.”

22.	She does have some insight into her struggles.  The PAMS assessment carried out by independent social worker, Julie Atkinson, records a conversation that Miss Atkinson had with her about Dr Ravenscroft’s assessment.  She records her as saying this (at page 17 of her report):

“The doctor’s assessment said I can do everything.  The only problem is my memory.  Because of my memory I easily forget things for Margaret.  It’s because of that I can’t look after her needs.  Because of my memory I might not be able to look after her.  I think it’s not fair because I’m trying my best.  The only way I can look after Margaret is if someone like Denise [the current foster carer] is there.  That’s the only way I get to keep her.  I know all my family are working and I don’t have that.  I might lose her because of my stupid memory.”

23.	There is no doubt whatsoever that she loves Margaret.  She has made clear, both to me when she gave me her evidence and in the various assessments that have been carried out, that she enjoys nothing more than spending time with Margaret.  In particular, she particularly enjoys playing with Margaret.  She has said that Margaret means the world to her and I am sure that that is right.  

24.	The mother and baby foster placement has allowed multiple opportunities to see just what she can do and to identify those things that she struggles with.  It is important that I record that the assessment by Miss Atkinson was carried out at the foster placement on four separate occasions, including time spent in the community as well as in the home.  I also have the benefit of the detailed foster carer’s notes which have been provided weekly by the foster carer.  Those notes were made available to Dr Ravenscroft, Miss Atkinson and Margaret’s guardian, Ms Wright, who all had the opportunity to read through them and assess them before they gave their evidence.  I, too, have had the opportunity to see those notes.

25.	Margaret’s social worker, Laura Holmes, in both her evidence in writing and in her evidence to me, was able to describe the emotional warmth that Margaret’s mother is able to demonstrate with Margaret.  She was able to say that there are things that she is able to deal with, with some days her doing well – she changes Margaret’s nappy; she attends to some of her feeds; she spends time playing with her – but what emerged throughout the evidence was that, in reality, the role of the foster carer has been to “mother” both Margaret and her mother.  

26.	It is plain to me from the evidence that I heard that Margaret’s mother will never be able to live independently.  She requires too much help; she requires too much prompting.  For example, when changing Margaret’s nappy, she does not think to wash her hands.  She can be forgetful about the temperature of the bottle and the temperature of the bath.  In looking after herself, she does not brush her teeth; she has had no dental care.  She has to be prompted to wash her own clothes, as well as Margaret’s clothes.  She has to be prompted to shower.  

27.	There was unanimity of view amongst the social worker, Miss Atkinson (the independent social worker) and Miss Wright (Margaret’s guardian) that, over the course of the placement in the foster carer’s home, it is the foster carer who has become Margaret’s primary carer.  Indeed, the most recent foster carer’s notes appear to suggest that that process is increasing so that more of the care of Margaret is being undertaken by the foster carer, such as bathing and night time feeds, matters which have previously been done, at least in part, by her mother.  Margaret’s mother has acknowledged that she has stopped bathing Margaret because she has recognised, now that Margaret has started to wriggle and become stronger, that she is not strong enough or skilful enough to keep Margaret safe in the bath.  Miss Holmes, the social worker, put it as follows:

“[She] will have said that she was finding the bathing difficult before the foster carer took over.  The foster carer wouldn’t just take over.  [She] is struggling with the feeding.  It is getting more difficult for [her] now Margaret is getting older.”

Miss Wall’s response to that is to say that there is a significant gap in the assessment of Margaret’s mother and in the consideration of what might be suitable going forward.  Miss Holmes’s evidence was that the level of supervision that has proved necessary within the foster placement could not be any higher.  That has not changed during the course of the foster placement.  Ms Wright put it this way:

“The foster notes speak volumes.  The foster carer has tried to step back but, in fact, has become increasingly involved at night time and at bath time.”

28.	What long term prospects are there for keeping Margaret and her mother together?  Miss Wall’s case is that the Local Authority and, indeed, Margaret’s guardian have not explored the options that might be available for supported living.  It was Miss Wall’s case that Margaret’s mother is providing significant care to Margaret but recognises that she needs support and that the Local Authority position should be that it would only separate Margaret from her mother if, with support, she cannot care for Margaret.  But that remains untested without proper investigation as to what might be available in the future.  Miss Wall said that there was deficient evidence as far as wraparound care was concerned and reminded me of the shared lives carers used in the Court of Protection.  She invited me to find that her mother was Margaret’s primary carer.

29.	I am afraid that the evidence does not support Miss Wall’s contention.  Whilst I do not doubt for a moment that she is a significant part of Margaret’s life, she is not Margaret’s primary carer.  That role has fallen on the foster carer.  I do not doubt for a moment that she has tried as hard as she can.  It is not her fault that she cannot provide the care to Margaret that Margaret needs.  As I have said, there was unanimity from the professionals who have seen Margaret in the care of her mother and foster carer that it is the foster carer who is in effect meeting Margaret’s needs and to whom Margaret looks for her primary attachment.

30.	Let me consider the future and what Margaret needs.  Looking at the welfare checklist, the two most important matters that come from the 1989 checklist are her physical, emotional and educational needs and any harm which she has suffered or is at risk of suffering.  She needs somebody who can meet all her physical and emotional needs.  Introducing a factor from the 2002 Act checklist, her needs – physical, emotional and, in due course, educational – will continue not just through her childhood but for the rest of her life.  She needs someone who can be a consistent figure and who can meet those needs without default.  What she cannot have happen to her is for her to be left in circumstances with a risk of harm, physical harm, and risk of neglect.  

31.	The descriptions in the foster carer’s notes of trips out with Margaret in her buggy are revealing.  They were confirmed by the observations of Miss Atkinson on a similar trip.  Her mother’s difficulties mean that she has no road sense, no sense of danger, no ability to carry out an assessment of traffic conditions and danger and has repeatedly had to be stopped from putting Margaret in serious harm’s way.  That is not because she was setting out deliberately to put Margaret at risk but simply because her struggles mean that she cannot avoid doing so.

32.	The other question that arises is whether there has been some failing on the part of the Local Authority, primarily through its foster carer, in teaching her or helping her to learn so that she could avoid those situations of risk and so that she could be better equipped to meet Margaret’s physical and emotional needs.  She has not acquired reading and writing skills.  It is apparent from what Dr Ravenscroft has said that she will learn best by being shown how to do things, helped how to do things and being in an environment where she can see things being done time and time again.  Dr Ravenscroft records (at paragraph 6.2(3) of her report):

“[She] will best learn by techniques being demonstrated, either via a role play video or seeing someone else actually doing what they are being asked to learn or do.  They should then be observed to demonstrate evidence of such learning.  [Margaret’s mother] has specifically requested that, after something has been demonstrated to her, she would like the opportunity to see it demonstrated one more time then to have some time to reflect and practise doing it herself before being assessed.”

That is a primary learning technique.  Dr Ravenscroft also referred to the possibility of diagrammatic format using images.  She said this (at paragraph 6.14):

“[She] struggles to read or write; therefore, presenting printed information using language will not be appropriate.  Printed information could be provided in diagrammatic format using images, if necessary, especially if there is a need to provide her with a record, if she is required to learn and subsequently recall sequential steps or instructions.  This would be playing to her relative strengths in the domain of perceptual reasoning.  An example would be pictorial information of developmental milestones of children with images actually showing what would be expected for a child of a particular age.”

Miss Holmes was asked whether that had been done and was able to explain that that was an approach that Margaret’s mother did not favour.

33.	I am satisfied on the evidence that I have heard and read that everything that could realistically be done within the foster placement to assist Margaret’s mother and to give her the best opportunity of acquiring the skills needed to meet Margaret’s physical and emotional needs and avoid the risk of harm have all been done and have all been done appropriately, and it is sad to see that the position has been reached that she is struggling with things that she previously could achieve, such as bath time. 

34.	What more could be done that has not been done?  What more might be put in place to allow Miss H and Margaret to be together?  In my judgment, teaching is unlikely to make much further progress than has been achieved in the foster placement.  Indeed, there is no real evidence of things developing.  I do not see the continuation of a foster placement with the foster carer as Margaret’s primary attachment figure as a realistic long term option.  I do not see how her mother could ever become Margaret’s primary attachment figure given that so many of the tasks that would be required in looking after Margaret would have to be done by somebody else.

35.	There is an additional difficulty that, whilst recognising that she needs help and support, there have been times when she has been resistant to receiving help and support.  She has said to Miss Holmes, the social worker, that she does not want her own social worker.  There have been times when she has been incredibly rude to the foster carer and to other professionals.  I am sure that she does not realise what effect her rudeness can have on those people.  She is very fortunate in the foster carer that she has currently that she has, largely, risen above that rudeness.  I do not anticipate that all potential future carers and helpers would react in quite the same way.

36.	The answer to Miss Wall’s complaint that there have been insufficient investigations of what sort of wraparound care might exist in the community and whether some sort of supported living of the shared lives type might be available, in my judgment, is that it fails to recognise that Margaret’s needs are my primary concern.  I have reached the sad conclusion that Margaret’s needs cannot be met by her mother no matter how much support is put in place and no matter how it is organised.  Margaret’s mother needs support; she needs that irrespective of Margaret’s position.  It is a testament to her determination that she has lived, before Margaret was born, with relatively little support.  She has found ways of coping with life, despite her struggles.  It is clear to me that she would benefit from more help than she has historically had, but that is quite independent of Margaret’s needs.  

37.	Margaret needs more from a primary carer than, I am afraid, her mother is able to give her.  I, therefore, reach the conclusion that I can (and must) rule out her mother as a future carer for Margaret.

(Further submissions followed)

38.	In my judgment, her mother’s time with Margaret has to reduce as she leaves the placement.  There are going to be practical difficulties, although I am sure that she will use her very best efforts to get to whatever time she is able to to spend with Margaret.  I think, for now, a reduction to three times a week is probably sufficient but there may well be a stage when that has to reduce further.  That depends on the outcome of the assessments of the relatives and it depends on what the options are when the matter comes back before me.  I think, given Margaret’s age, that frequency of contact is probably more important to Margaret than duration of contact.  What I hope will happen is that her mother will get a chance to share some of the caring tasks but, more importantly, that she gets time to play with Margaret.

(End of judgment)