England and Wales Family Court Decisions (other Judges)

 

Case No: LS17C00404

IN THE FAMILY COURT SITTING IN LEEDS

IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF

Date: 13 October 2017

Before :

HHJ Lynch

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Patricia King for the Applicant

James Welch for the 1^st Respondent

Jane Webster for the 2^nd Respondent

Lynn Crabtree for the Child

Hearing dates: 13 October 2017

- - - - - - - - - - - - - - - - - - - - -

 

JUDGMENT

Introduction

1. These proceedings are about a little girl, X, dob [a date in] 2017 and so aged five months old. Her parents are M and F (referred to in this judgment at times as the mother and the father simply for ease in dictation) and they both have parental responsibility for her.  X is the subject of an interim care order which has been in place since the beginning of these proceedings and she lives with foster carers. She has regular contact with her parents, twice a week for three hours.


2. The local authority’s application for a care order was made in May, due to concerns about X’s safety in the care of her parents due to findings which had been made about them in the past in other care proceedings, to which I shall return.


3. The parents have separately and together had other children, whose circumstances are relevant to the issues in this case. The father has an older child who was the subject of care proceedings in a number of years ago.  Two months after his birth, that child was admitted to hospital with a spiral fracture to his right humerus.  A skeletal survey revealed older fractures to his left tibia.  There was also bruising on his body. At a hearing the court found that that the father had caused the injuries to the child.  He was convicted of a s20 assault and given a suspended sentence and probation.  He failed to comply with the terms of the sentence and so served a six-month term of imprisonment. As a result of the findings, a supervision order was made in respect of that child and he was placed in the sole care of his mother.  The father has no contact with him.


4. When Social Care became aware that the father had formed a new relationship with the mother and that she was pregnant for the first time, a pre-birth assessment was completed. This recommended that the baby should be placed with the parents under a child protection plan, a plan endorsed by a core assessment completed two months later. As a result, following that child’s birth (called Y in this judgment), he was placed in the care of his parents.


5. At three months of age, Y was admitted to hospital and was found to have the following injuries :

·         Fractures to the right fifth, sixth, seventh and eighth anterolateral ribs.

·         A compression fracture on the seventh thoracic vertebra.

·         A torn frenulum below the tongue.

6. The father and the mother were unable to provide any satisfactory explanation for the cause of the injuries.  A finding of fact hearing concluded that one of the parents had caused those injuries and therefore one had to proceed on the basis that he was at risk from both his mother and father. The parents have not accepted the findings made by the Court and continue to state that they do not know how the injuries to Y were caused.


7. The mother then gave birth to the couple’s second child, Z. He was the subject of care proceedings and accommodated at birth. A care order and placement order were made the following year as the position of parents had not changed since the conclusion of the proceedings relating to Y. Those boys have now been adopted together.


8. It was against that backdrop that, when Children’s Social Care became aware that the mother was expecting her third child, a pre-birth assessment was completed. The assessment concluded that the baby would be at risk of suffering significant harm in the care of the parents and so care proceedings should be commenced immediately following the birth with a plan of removal into foster care, which was indeed what happened.


9. Within these proceedings, it was agreed that, given the position of the parents had not changed, the right way forward was to commission an assessment by a forensic psychologist. The thinking was that she would be able to advise what risks the parents posed to X and whether there was a way to manage those risks.

The Issues and the Evidence

10. In preparing for the conclusion of this case I read the bundle and it is a case I am familiar with, having dealt with it throughout.


11. The local authority and the guardian say that sadly X cannot be placed safely with her parents, despite their commitment to her. The reason for that lies largely in the reports of the psychologist regarding the parents. Those assessments show that both parents have significant psychological difficulties due to their experiences in childhood and later life trauma. The psychologist of course, like everyone else in this case, started from the point that both parents were possible perpetrators of the injuries to their son. In her assessment of the father, the psychologist said because of his history of trauma and neglect when a child, he has long-standing difficulties in coping with his emotions. When he feels emotionally vulnerable he has a tendency to disconnect from situations, but can be easily overwhelmed if he cannot do this. The psychologist said of the father that he “has a tendency to divert vulnerable affect that he cannot avoid in anger; this can spill out into actual aggression and violence”. She expressed concern about his dependency of using violent fantasy and gaming as a means of managing his emotions. She concluded “on the basis that the father has an established history of physically harming his oldest child, with the real possibility that he has injured his second son, I suspect the risk of him committing future assault is high irrespective of whether he caused harm to Y or not”.


12. In relation to the father, the psychologist talked of him needing to address his childhood trauma and to learn to tolerate the difficult emotions this generates, but she did not feel he was very motivated to engage in such work. She said the outcome was uncertain and unlikely to be within X’s timescales.


13. Turning to the mother, the psychologist again spoke of the childhood traumas she had experienced which remain unresolved for her and the impact of those on her view of herself. Her core belief that she is unlovable have left her vulnerable to forming relationships with inappropriate men and may make it difficult for her to separate from others, even when faced with the destructive consequences of those relationships.


14. In terms of the mother’s ability to protect a child from her partner, if it could be proven that she had not herself caused the harm to her son, the psychologist said she has been and is unable to consider the likelihood that the father might have harmed her son and might harm again. The psychologist said “Her inability to tolerate thinking about [F] as a potential risk to children makes it unlikely that she could protect other children from injuries.”


15. The psychologist spoke of therapy the mother could engage in but this would require a minimum of nine to twelve months of engagement and she would need to separate from the father if it was he who inflicted the injuries to their son.


16. The local authority of course knows no more now than at the start of this case as to how the injuries to Y were caused. As the social worker said in his final statement : “We do not know who caused the injuries: if either parent was involved we know nothing about the triggers or the context. We do not know if there was collusion of parents or whether one parent hid the injury from another. The mother has said she knows she was not the perpetrator and does not believe the father was either. In the circumstances it is impossible to risk manage X being in their care because there remain so many unknowns with the very serious possibility that one or both parents were responsible for the injury.”


17. The couple’s relationship is close with a strong commitment to each other and both of them are possible perpetrators.  The social worker points out that if X was placed in their care there is a significant risk that if any concern emerged they could not be trusted to share those concerns with professionals.  The mother says she has a greater awareness of the risks to X than she might previously have had in relation to Y.  She has said she would not be left in anybody else's care. She is more mature now and would be more alert to the father struggling with any aspects of X's care.  However, for the social worker, whatever reassurances have been given and whatever commitment they have shown to addressing parenting needs, they have offered no insight into the injuries that occurred to Y.


18. The psychological assessments put flesh on the bones of the concerns but cannot assist with knowing who caused those injuries. The parents have said nothing different to that which they said in those proceedings, that they both deny causing the injuries themselves and do not accept the other could have. That for the social worker and guardian makes it impossible to look at minimising the risks to X were she to be placed with her parents. The history of two children within this family having previously had physical injuries, caused in one case by the father and in the other by one of the parents, means there would be a very real likelihood of X suffering such injuries.


19. The social worker in his parenting assessment acknowledged the many positives in the parents’ care of their daughter during contact. They have demonstrated good practical parenting skills, offer appropriate stimulation, and seek to soothe her when she is unsettled. Contact though is a very different situation to full-time care of a child. On one occasion the mother commented that she hoped her daughter would have got over having colic were she to come home to them, because the mother would not know what to do with her if she kept crying for six hours. The father spoke of the stresses of parenting and his frustration when Y was in his parents’ care and he refused to take a bottle. The social worker made the point in his final statement that supervised contact gives no indication of what a parent’s breaking point might be whether they will be able to cope in that situation.


20. It is acknowledged by the professionals that the parents have been very willing to engage in all the assessments within these proceedings and to do what they can to show their desire to be good parents to their daughter. They have begun a parenting course, the mother says she intends to access counselling to deal with her difficulties, and the father is willing to attend a project which would help him address managing his feelings of anger. As the social worker said in his assessment, it has always been clear to him the parents were committed to wanting to care for X.


21. Both the social worker and the guardian balanced up the options for this little girl in their final evidence. The risk of significant harm if placed in the care of the parents is such a significant factor that neither professional could recommend X was placed with her parents. Both felt that was nothing further which could be done to safeguard her such that she could grow up in her birth family. The guardian said she was confident that the local authority had exhausted all efforts to support, assist and enable X to remain safely in the care of her parents but that this was sadly not possible. Both professionals concluded that sadly, in all the circumstances, there was no possible alternative for X but for her to be adopted.


22. X’s parents have found themselves in a very difficult position at the end of these proceedings. They knew the importance of the assessment of the psychologist which probably contributed to their willingness to engage fully in that assessment. They had hoped beyond hope that the assessment would conclude positively to give them the chance to bring up their daughter. When the assessments were negative and when the local authority’s final evidence came in, they faced a very difficult decision. Ultimately by last week’s final review hearing, the parents reached the point of acknowledging the decision that I would inevitably reach based on the evidence I had. By that time the guardian’s report had also been received which supported the local authority’s plans for X.


23. The parents therefore, with heavy hearts, decided that they would not oppose me making the final orders sought by the local authority, although they could not bring themselves to give consent those orders being made. In the father’s position statement it was said “This is a difficult decision for the father to make, but he acknowledges that he is not able to care for X at this time and wishes to be realistic on the likely outcome of this case.” That was a position the mother could also sign up to by the time of the hearing. Both parents were clear in their position statements as to the immense love they had for their daughter and they would not want her to think they had given up on her, it was simply them being realistic about what would inevitably happen given the weight of the evidence.


24. The parents then had to process the pain they inevitably felt as result of their decision and, maybe unsurprisingly, they have responded differently. The mother wants to play a more active part in her daughter’s adoption, being keen if possible to meet the adopters and to pass on some keepsakes and photos she has, to be kept for X. The father would find that simply too difficult and, if I make the decision that his daughter should be adopted, he does not want to keep up any direct contact prior to the actual adoption. He said he had made that very difficult decision in what he felt was his daughter’s best interests, feeling that face-to-face contact after a placement order had been made would be unfair for X.

Threshold

25. For me to make a final care order, the local authority must prove that the threshold criteria in s31 Children Act 1989 are met, in effect that at the time these proceedings began X was at risk of suffering significant harm because of the parenting she would be likely to receive if an order was not made. The parents unsurprisingly struggle with that. They can accept the factual record of what happened in the earlier proceedings but they cannot accept that because of that X would be risk of suffering significant physical and emotional harm if placed in her parents’ care.


26. I have looked carefully at the evidence, including the previous findings and the assessments of the parents, and I am satisfied that at the time these proceedings were commenced the threshold criteria were met on the basis of the Schedule of Facts as prepared by the local authority. Those facts, which I find to be proved, are set out in in their entirety at the end of this judgment.

Decision

27. I now turn to consider what orders if any are in the best interests of X.  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”. 


28. 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 X, taking into account the assistance and support which the authorities or others would offer.


29. In reaching my decision I have taken into account that X’s welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I must consider the Article 8 rights of the adults and X, 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.


30. A placement order is sought by the local authority in respect of X.  The court cannot make a placement order unless the parents have consented or the court is satisfied that the parents’ 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. 


31. The question for me is whether X could be safely placed in the care of her parents and if not should she be adopted.  I must 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 doing this, I have considered all the points in the welfare checklists contained in both Children Act 1989 and the Adoption and Children Act 2002, and I propose to consider each of those factors.


32. Two factors which can be considered together relate to X herself. I need to look at her particular needs and also her age, sex, background and any characteristics of particular relevance. From what I read in the papers, X is a typical little baby with no particular health or developmental concerns. She is described as a contented, happy and alert baby and she is developing good attachments to her carers. I am also required to look at the ascertainable wishes and feelings of the child concerned but of course X is too young for that to be possible.


33. Very importantly I must consider any harm which she has suffered or is at risk of suffering. That really is the nub of this case. As is evident from the findings I have made, X would be at risk of harm in the care of her parents, both physical and emotional, for the reasons I have set out. I would emphasise that that harm the flows from the traumas which happened to the parents when they themselves were young. We are all the people we are because of what has happened to us throughout our lives and these parents are no different. Sadly, two children in this family have already been physically harmed and physical harm inevitably brings emotional harm. I can see no way that X could be protected from such harm within the care of her parents, no support could be put in place to minimise that risk.


34.  I have to consider how capable each of X’s parents are of meeting her needs. Whilst acknowledging the positives seen in their care of X in contact and in the parenting assessment, meeting a child’s needs is much more than basic care. I am afraid that, because of the people the parents are, they are not able to meet all of her needs, most importantly her need to be kept safe and secure.


35. I balance that against the capacity of prospective adopters to meet X’s needs. As it happens in this particular case X is in an early permanence placement, which means if she is to be adopted it will be by the couple currently caring for her. I am not balancing however the two particular couples but rather the question of whether adopters generally would be able to meet this girl’s needs. I am satisfied in an adoptive placement she would be kept safe and secure and all her physical, emotional and educational needs would be met, because of the selection process for adopters and the training they receive.


36. Again, another factor I must consider is the likely effect on X of any change in her circumstances. I am conscious in this particular case if X is to be adopted she will have the benefit of not having to move placements but that in itself would not outweigh the benefit of being brought up in her birth family if that were possible. It is the risk from her parents which sadly prevents X removing to live with them. Having said that, it is very much a positive that this is one of those few occasions where a child who is adopted will in fact only ever have been cared for by her adoptive parents.


37. Adoption of course is not without consequences. Ceasing to be a member of her birth family will have implications for X. She will lose the chance of a relationship with two parents who evidently love her very much and who are desolate at the thought of losing her. In the future, she may find it hard to understand the start she has had in life and the reason why she cannot live with her birth parents. Training given to adopters should help them in addressing such issues with her and things such as a life storybook and later in life letters may help. In this particular case, the mother has obviously thought about such things and herself has items she wants to pass on which may assist X in understanding she has not been abandoned and was loved by her birth parents, even though they were not felt able to care for her.


38. Balancing then the two realistic options of placement with her parents or adoption, it is clear to me that X does indeed require adoption if her needs are to be met, that nothing else will do. She cannot be at risk of suffering the same harm that her older brother and half-brother suffered and there is no way to avoid that. Given how young she is, I am satisfied that long term foster care is not an option for her, having in mind particularly the comments of Black LJ in Re V [2013] EWCA Civ 913. Having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of X being placed safely in her parents’ 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 X is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. I am also satisfied that X’s welfare requires me to dispense with the parents’ consent to placing her for adoption, the word “require” here having the Strasbourg meaning of necessary, “the connotation of the imperative”. I therefore make a placement order authorising the local authority to place X for adoption.


39. There are a couple of messages I would like to give in this judgment, although they are not strictly anything about which orders could be made. The first is to emphasise the importance of I see it of contact happening between X and her two adopted brothers. I hope very much that the local authority will put those enquiries in train and that those fortunate enough to have these three children within their families will feel able to let the children develop a link between the two families. We know that relationships between siblings are those which last longest in life and I hope that, even though these children will grow up in two different homes, they will be able to see each other as brothers and sister.


40. I also heard in court of the mother’s wish to meet her daughter’s adopters. Whilst the social worker would have had no objection to that, quite rightly I was told it would be for the adopters to decide. There must be a lot of anxieties for adopters, and I do not doubt the magnitude of this request, but I hope they will be open to considering it. It seems to me the more that they are able to have a sense of the mother as a real person, the more they will be able to help X understand where she comes from and how her life began. From what I have seen of the mother in court, I would not expect it to bring any risk and it may well bring real benefits. I say this though simply as a judge and am not seeking in any way to pressure the couple who will be ultimately X’s adoptive parents.


41. 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 up X and indeed to X herself when she is older.  I propose therefore to make a direction that this judgment must be released by the Local Authority to X’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; I have written this not for the benefit of the adults but for X and wish to be sure it reaches her in due course.


42. Finally, I also make orders reserving any future applications in respect of X to me and for public funding assessment for all the respondents in this matter.  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. 

 

 

 

SCHEDULE OF FINDINGS MADE

 

1.                  M and F are the parents of Y and Z.  Y was the subject of care proceedings brought by the Local Authority and was made subject to a care order and placement order. Z was removed at birth and placed in foster care.  He was made the subject of a full care order and placement order.

2.                  Y sustained the following injuries :-

-     fractures to the right 5^th, 6^th, 7^th and 8^th anterolateral ribs (front and side of the chest)

-     a compression fracture of the 7^th thoracic vertebrae

-     a torn frenulum below the tongue

3.                  Following a finding of fact hearing, the judge stated in his judgment at paragraph 53 ‘… each parent is withholding important information.  It is consequently impossible on this evidence to identify which of the two parents is a perpetrator of any of Y’s injuries.  The consequence of that conclusion is that the assessments of Y’s welfare must proceed on the basis that he is at risk from both his mother and his father.’ 

4.                  A pre-birth assessment was carried out in respect of parents in relation to Z.  Parents continued to deny having caused any injuries to Y.  At the final hearing in respect of that child it was therefore found that the threshold criteria were met. 

5.                  The parents continue to deny having caused any injuries to Y.  

6.                  As a consequence of the above, X is at risk of suffering significant physical and emotional harm if placed in her parents’ care.