England and Wales Family Court Decisions (other Judges)

This judgment was given in private. The court permits publication of this judgment on condition that (irrespective of what is contained in the judgment) in any published version of this judgment the anonymity of the child and members of their family must be strictly preserved. All persons, including the parents, their legal representatives, legal bloggers and representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Neutral Citation Number: [2025] EWFC 91 (B)

Case Number: SD24C50178

IN THE FAMILY COURT AT SUSSEX

Before: HHJ EARLEY

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In the matter of BB (A Child)

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Mr Little, of counsel, instructed for the Local Authority, West Sussex County Council

Mr Edwards, of counsel, instructed for the Mother

Mr Sharp, of counsel, instructed for the Father

Mr Amin, solicitor, instructed for the CAFCASS Guardian, Ms Moore

Hearing date: 20 March 2025

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JUDGMENT

This judgment was handed down remotely at 2.00pm on 4 April 2025 by circulation to the parties or their representatives by e-mail and thereafter by release to the National Archives

IMPORTANT NOTICE

HHJ EARLEY:

1. These proceedings concern a baby boy I will refer to as BB. BB is 10 months old and is currently placed in foster care under an interim care order. As I will set out in this judgment BB has a high level of medical and care needs and has had a disrupted start to his life to date.
2. The local authority seek a care order for BB and approval of a plan for him to remain in foster care, long term, and maintain a relationship with his parents and wider family through supervised contact. That plan is supported by BB's Cafcass Guardian.
3. BB's mother (M) is in her 30's; BB is her fifth child. Her older children were subject to care proceedings which concluded in July 2024 with those children being made subject to care orders and remaining in the care of a family member who had been positively assessed as a connected person foster carer. M has long standing issues regarding her problematic use of alcohol, dysregulated behaviour and periods of low mood. M did not attend the final hearing in respect of BB, but had filed a final statement in which she made clear that she opposed the final care plan and wanted BB placed in her care. M is currently pregnant with her sixth child and her estimated due date is early June 2025. It is believed that she is currently outside the UK.
4. BB's father (F) is also in his 30's; BB is his first child. These proceedings are F's first involvement with child protection services and the Family Court, and I think he would accept that he has, at times, found the process frustrating and overwhelming. The relationship between the parents only lasted a few months, however it resulted in BB being born and these proceedings being instigated. F has shown commitment and love to BB throughout these proceedings and engaged well with assessments and the court process. F now accepts that he is not able to meet BB's extensive care needs and supports the plan of long term foster care. F is a longstanding user of cocaine, and whilst he has professed a willingness and determination to cease using drugs to enable him to care for BB this has not been achieved within the timescale of these proceedings.

BB's birth and needs

5. BB was born prematurely at 26 weeks outside the UK and he has complex medical needs. BB is diagnosed with a range of severe medical conditions which impact on his growth, development, mobility, brain functioning and sight. He has a ventriculoperitoneal shunt in his brain which requires constant monitoring, chronic lung disease, epilepsy and a susceptibility to chocking on liquids. He has support from a range of multi-disciplinary medical professionals across Sussex and Hampshire and numerous medical appointments each week. He also requires three sets of physiotherapy exercises to be performed by his carer each day. His care needs are extensive and he must be monitored all day, and woken for medication and feeds throughout the night. His medical team are clear that his full health care needs and his long-term prognosis will not be known until he is around two years old.
6. Whilst BB's medical needs are widespread and complex it is also important to highlight that BB is a delight, he is responsive and he can smile and blow raspberries; he likes sensory stimulation and enjoys interacting with known adults. BB recognises his father and is described as 'lighting up' when he has contact with him. Unfortunately, M has missed a number of her contacts with BB and therefore he does not really recognise her at present. BB has met his older siblings and their carer.
7. On 9 May 2024 the local authority convened an initial child protection conference to discuss the need to safeguard BB, who was then an unborn baby. M attended the meeting but left before it had concluded in a distressed state. On 10 May 2024 M was found near Gatwick Airport in an intoxicated state; she was taken to hospital but discharged herself. M left the UK the following day, having purchased a one-way ticket to Malta. BB was born in Malta in  May 2024.  Information from the Maltese hospital is that M was intoxicated whilst in labour (as set out in the approved final threshold document). Children's Services in the UK were not aware of BB's birth until 4 weeks later. During the period between his birth and the date at which Children's Services became aware of this, the mother attended virtual parenting assessment appointments with the social worker, Ms Brooks. The mother concealed the fact that BB had been born and was receiving specialist care in Malta.
8. The mother further misled the social worker by informing her that BB had been born in Spain and was at a specific hospital in Barcelona. When Ms Brooks made contact with that hospital, they had no record of the mother or BB and stated they did not provide maternity care. On 15 June 2024 the UK police located the mother and BB in Malta; at this stage BB was 5 weeks old and on a specialist neo-natal ward in hospital in Malta. The UK Home Office confirmed that the mother returned to the UK between 7 and 9 June 2024, leaving BB with no parent in the country in which he was in hospital.

History of proceedings re BB

9. On 2 July 2024 the Maltese Foundation for Social Welfare Services obtained an Emergency Order from the Director of Child Protection Services in Malta placing BB in their protective care. Information in support of the application set out concerns that the mother had flown into Malta in an intoxicated state and had fallen down the aeroplane stairs, falling on her stomach and triggering the onset of early labour. Since BB was born the mother had repeatedly attended hospital in an intoxicated state, had been assessed in a psychiatric unit and received support from a crisis team in respect of her mental health.
10. There was excellent liaison, cooperation and sharing of information between the Maltese Protection Services and Children's Services in Sussex, initially assisted by ICACU (International Child Abduction and Contact Unit), the Central Authority for England and Wales.
11. Proceedings were commenced in the High Court of England and Wales on 3 July 2024. On 4 July 2024 Mrs Justice Lieven DBE made an order requesting ICACU to liaise with the Maltese Central Authority to seek agreement to the English Courts assuming jurisdiction in relation to BB, pursuant to Article 9 of the Hague Convention 1996.
12. On 19 July 2024 the Maltese Civil Court (Family Division) acceded to the request for the High Court of England and Wales to assume jurisdiction for proceedings in respect of BB. On 25 July 2024 the High Court issued a notice pursuant to FPR r12.65(4), and in accordance with Article 9 of the Hague Convention 1996, that the Courts of England and Wales were to assume jurisdiction.
13. In response to this notice the local authority made an application for an interim care order in respect of BB on 29 July 2024 and the matter was listed before me the following day.
14. On 23 July 2024 there was an Issues Resolution Hearing (IRH) in respect of M's older children. She did not attend this hearing and I was informed that she was in Malta and her flight to the UK to enable her to attend the hearing had been delayed or cancelled. She was able to attend part of the hearing by telephone. M's position was that she sought for those proceedings to be extended for 6 months to enable her to return to the UK with BB in due course and resume care of her older children. I refused the application to extend the proceedings and made final care orders and approved the care plans for the children.
15. On 30 July 2024 I granted an interim care order in respect of BB and approved the interim care plan for him to be repatriated to the UK with the assistance of the Maltese authorities and liaison and cooperation between the UK and Maltese medical and social care professionals involved in BB's care.
16. On 13 September 2024 the Maltese Court of Appeal (Inferior Competence) declared that my decision of 30th July 2024 was recognised and enforceable with immediate effect for all purposes of law and liberated the Director of Child Protection  from all obligations required regarding the care and custody of BB and ordered the return of BB to the competent authorities in the UK. In furtherance of this Order BB returned to the UK on 18 September 2024. He was cared for by Ms Brooks and an allocated medical team during his transfer and was admitted to hospital in Sussex where he remained for a few weeks, until he was stable enough to be discharged to foster care. Between his admission and discharge the foster carer visited him each day to undertake his care tasks and learn to provide for his extensive medical needs.
17. BB has remained with the same carer since his discharge and she has committed to caring for him long term. BB's father has developed a good working relationship with the foster carer and they communicate well and F is kept updated about BB, his development and health.
18. The 26-week timetable expired on 27 January 2025. It was necessary to extend the timetable because of the delay in repatriating BB to the UK and the impact this had on the parenting assessments and the need to understand BB's extensive needs and assess whether the parents had, or could develop, the capacity to meet these needs.

Threshold

19. On 20 March 2025 I made findings in respect of threshold pursuant to s31 Children Act 1989. The threshold findings were largely agreed by the mother, although she did not file a formal response to the final proposed threshold.
20. I am satisfied that at the date of intervention, on 2 July 2024, BB was likely to suffer significant physical and emotional harm in the care of his mother because of the following facts:
    (i) The mother failed to co-operate with child protection measures taken by the local authority and other agencies, causing them to be unable to secure the welfare of BB.

(ii) The mother left the United Kingdom on a one-way ticket to Malta the day after the unborn child was placed on a child protection plan, without informing social workers.

(iii) The mother failed to disclose the birth of BB to the local authority until 7 June 2024, in an attempt to evade child protection involvement.

(iv) When the birth of BB was disclosed, the mother falsely claimed to be in Spain, rather than in Malta

(v) Since BB's birth in Malta, the mother returned to the UK on at least two occasions leaving BB in hospital without a parent present in the country.

(vi) The mother has a longstanding history of harmful use of alcohol on a binge pattern and consuming excessive alcohol during pregnancy.

(vii) The mother failed to acknowledge her problematic use of alcohol during her pregnancy with BB and failed to take steps to remedy it.

(viii) The Mother tested positive via Hair-Strand and PETH Testing for chronic excessive use of alcohol in the period end January - end April 2024 whilst BB was in utero.  

(ix) In the early hours of 10 May 2024, the mother was found in the Gatwick Airport Area unresponsive and heavily in drink whilst BB was in utero.

(x) When giving birth in Malta, the mother had alcohol in her system.

(xi) Since BB's birth the mother was at times intoxicated, as observed by the Maltese authorities.

(xii)  The Mother has suffered recurrent depressive episodes and has a history of self-harm, including expressing suicidal ideation whilst her older children were in her care.

Care Plan for BB

21. The local authority care plan, supported by the Guardian and BB's father, is for BB to remain with his current foster carer under a Care Order. The current foster carer is able to meet BB's medical and care needs to a high standard. I have seen a Day in the Life of BB prepared by his social worker and foster carer. This highlights the intensive and demanding role undertaken by BB's carer and the specialist skills needed to ensure his needs are met.
22. BB and his carers have support from local charity, Chestnut Tree House, and they provide respite in their hospice and support in the carer's home. This respite is crucial given the demanding task of caring for BB 24 hours a day.
23. In terms of contact with his family the revised care plan is for BB to have contact with his father once or twice each month (around 18 contacts per year) and with his mother on alternate months. The care plan had originally been for BB to spend time with each of his parents every month; however given the mother's current sporadic attendance at contact and frequently being out of the country, the local authority, with the support of the Guardian, amended their care plan to ensure BB has regular and frequent contact with his father who is able to prioritise and meet his needs for consistency. In the event that M returns to the UK and engages with the local authority and demonstrates commitment to attending contact with BB consideration will be given to increasing her contact as part of the review process.
24. It is also planned that BB will have regular contact with his older siblings once each month; this will take place in the community and arranged between the foster carer and the sibling's carer.

 

 

Position of BB's father

25. The father has made clear that he loves his son and would want to be able to care for him. However, he accepts he has not been able to address his cocaine addiction within these proceedings and he acknowledges that BB's extensive care needs cannot be met by a carer who is using substances.
26. The father expressed his belief that he would stop using cocaine were BB to be placed in his care, however I explained that I could not place confidence in this belief given F has not been able to address this addiction since knowing he was to become and father or after BB was born. The father accepts he uses cocaine regularly, including at times of stress, and caring for BB will inevitably be stressful and demanding. F also has other issues which impact on his capacity to provide for his son's needs. These include a lack of housing, significant debts and concerns for his emotional regulation and relationships within his family. I agree with the conclusions of the parenting assessment undertaken by Ms Brooks that F would not be able to care for BB until he had achieved and maintained abstinence for a significant period (around 12 months) and created a stable independent life for himself.
27. I also agree with the observation of Mr Ayres, team manager, that the genuine love and care that F has for BB could evolve into a lasting and secure relationship between them and F can play a continued and significant role in BB's life if he can find a healthier and more functional way of living.

Position of BB's mother

28. On 14 March 2025 M filed a final statement in which she stated: I oppose the recommendation for long-term foster care for BB and want him to be placed into my care. Her 14 page statement sets out, in appropriate detail, her challenges to the local authority care plan and set out her proposals to care for BB.
29. Within this statement M acknowledges her long standing difficulties with alcohol misuse and the impact this had on her mental health and her ability to care for her older children. M also states that she is not currently drinking alcohol and is engaged with AA and a relapse prevention group. She accepts a period of excessive drinking from May to September 2024, but states her consumption of alcohol decreased from September. Blood test results from December 2024, however, show that M had excessive levels of alcohol in her blood when she was admitted to hospital for abdominal pain related to her current pregnancy.
30. In addition, the results of hair strand testing undertaking in January 2025 supports a conclusion that M was drinking excessive amounts of alcohol between October 2024 and January 2025. The mother queried these results suggesting that the high levels could have come from a breath freshening spray or hair products, but this was refuted by the testing company. On the basis of all the available evidence I find it likely that the mother has continued to drink excessive amounts of alcohol since BB's birth and during her current pregnancy.
31. Whilst the mother expressed a commitment to caring for BB she did not attend the Issues Resolution Hearing on 28 February 2025 or the Final Hearing in these proceedings. On the day of the IRH I was informed she was unwell and unable to attend court. There is evidence before the court that she may have been in Malta on the dates of both hearings. Whilst the mother has filed a letter from her GP confirming she is suffering from severe anxiety and experiencing panic attacks, the letter does not actually provide an explanation for her failure to engage in hearings relating to her son.
32. On 9 January 2025 concerns were raised at a hearing that the mother may be planning to leave the UK and travel to Malta; this was a significant concern in light of her current pregnancy, the events that led to BB's birth and these ongoing proceedings. On that date the mother offered an undertaking to the court that she would not travel outside the UK without informing the local authority of her travel dates and ensuring she was provided with a 'Fit to Fly' certificate. The mother was present in court that day and confirmed her understanding of the promise she was making and the consequences of any breach.
33. In her statement filed on 14 March 2025 the mother admitted that in breach of her undertaking she travelled to Malta from 12 to 16 February 2025; she does not comment on whether she was provided with a 'Fit to Fly' certificate; she did not inform the local authority of these travel plans. The local authority have filed evidence that the mother also travelled to Malta from 3 to 12 March 2025 and I was updated that evidence is available that she flew to Malta the night before the final hearing.
34. A breach of an undertaking given to the court is a very serious matter, punishable by fine or a period of imprisonment. The standard of proof is the criminal standard: beyond reasonable doubt. As this judgment does not deal with a committal application for the alleged breaches and no findings have yet been made, I consider it inappropriate to comment further on that issue.
35. However, by placing herself outside the UK, the mother has undermined her own case that she is committed to BB and able to resume his care. Mr Edwards was limited in his instructions, as M had not contacted her solicitor to update as to why she would not be attending the final hearing. I was satisfied it was in the interests of justice, and in BB's interests, for the final hearing to proceed in M's absence.
36. Earlier in the proceedings M made an application for an independent social work assessment, as the parenting assessment directed to be undertaken by the local authority had not progressed. This was due to sickness on the part of the allocated worker. I refused the application as I was satisfied that Ms Brooks had a good awareness of BB and his needs and  could fairly and robustly assess whether M had made changes to her life that would enable her to meet these needs. To her credit M engaged with sessions in January 2025 after I directed that Ms Brooks should undertake the assessment.
37. I agree with the conclusions of the parenting assessment that M needs to demonstrate commitment to achieving abstinence from alcohol and stability for her mental health before she could be safely considered as a carer for BB. Her constant moves between the UK and Malta undermine her asserted wish to engage with support services. Whilst I acknowledge she has access to some online groups and resources whilst outside the UK, she does not have access to her GP for reviews of her medication or her relapse prevention group.
38. There are also ongoing concerns about M's emotional dysregulation and the impact this would have on BB. Within the proceedings for her older children it was necessary to make a Non-Molestation Order to try and stop M from threatening and abusing their carer. At numerous hearings for BB, and his older siblings, M has presented in a dysregulated state and has not been able to calm herself despite the presence of professionals and her legal representatives. At a recent review meeting she was shouting and abusive to BB's foster carer. I am clear that if she behaved in this way whilst BB was present this would cause him distress and upset.
39. I agree with the professional view that M is not currently in a position where she can safely care for BB.  His needs are extensive and M is not able to provide the calm, child focused care he needs. Nor is she currently able to engage and cooperate with professionals to learn the necessary skills to meet his medical needs as she is not consistently in the UK. Unfortunately, M has not shown the level of commitment to BB that would be the starting point for professionals and this court to have any confidence that she could safely care for him.
40. In addition, M is due to have her 6^th child in a few months' time. That child is already subject to child protection planning and it seems likely that care proceedings will be issued when the child is born. Whatever the outcome of applications within those proceedings, it is inevitable that M will face the emotional and physical challenge of another baby and further care proceedings which is not compatible with caring for BB and his extensive needs.
41. Within her final statement M raised the possibility of BB being placed with the carer for the older children. At the IRH I heard and dismissed an application for assessment of this connected carer. They had been asked about their capacity to care for BB in pre-proceedings and made clear that they were not able to take on his care alongside the other children. The carer attended the IRH and asked me to allow an assessment of their capacity to care for BB. As I explained at the IRH, I understand why the carer has expressed a wish to care for BB and enable him to grow up with his siblings; I expect this wish is genuine and the carer would do their best to work with professionals to learn the skills necessary to care for BB. However, the older children have their own needs as a result of the harm they suffered in the care of their mother. The care needs of BB are not consistent with the care needs of his older siblings who themselves remain subject to Care Orders to the local authority. I was also conscious that an assessment of the carer would result in significant delay to these proceedings which would already exceed the statutory time limit.  Given the outcome of assessment was likely to be negative, any further delay to the resolution to the proceedings could not be justified.
42. Whilst I am clear that BB cannot be cared for alongside his siblings, at this time, I have obtained an assurance from the local authority that they will keep this under review and they have set out the steps that the carer would need to take in order to be assessed to care for BB in the future.
43. In relation to contact, the mother set out in her final statement that she seeks more contact than once per month as was originally proposed by the local authority. The updated final care plan for BB provides for him to have contact with his mother six times per year for 2 hours. I am conscious that M did not have notice of this change in position, however I am satisfied that she was aware of the final hearing and aware that both placement and contact were to be determined. At the IRH I directed that the final hearing would be limited to the issues of the role the parents could play in BB's life and what may be needed for further assessment in the future. This was recorded on the order, as was the possibility of the parents giving evidence on these matters.
44. As set out already, the mother has absented herself from the final hearing. She has not presented a specific case in relation to contact, other than to say she does agree to it being reduced to once each month. Sadly, the mother has not always shown commitment to BB or her older children by regularly attending contact as planned. Her unstable mental health, use of alcohol and her frequent trips abroad have all impacted on her availability for contact. In my judgment it is likely that the impending birth of her new baby will further impact on her attendance at contact.
45. I am therefore satisfied that the amended final care plan for contact to take place six times each year is appropriate for now. If M can demonstrate commitment to BB and stability in her life, I hope that contact could be increased through the review process in order that BB can benefit from getting to know his mother and building a relationship with her.

Orders

46. Reminding myself that BB's welfare is paramount and any orders I make must be necessary, and a proportionate response to the harm BB would suffer in the care of his family, I am satisfied that there is no safe and viable placement for BB in his family at this time. I have considered all aspects of the Welfare Checklist in s1(3) Children Act 1989. I am satisfied the care plan for BB to remain in the care of the local authority under a Care Order is the only plan that will ensure his needs are met; as such the making of a Care Order is both necessary and proportionate.
47. I therefore make a Care Order to West Sussex County Council.

 

HHJ Sarah Earley