IN THE croydon county Court

Date: 10 February 2014

Before:
His Honour JUDGE ATKINS

B E T W E E N :
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London Borough of Sutton
Applicant
-and-
d and b
Respondent
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JUDGMENT
1.	This case concerns one child, a boy named A who is now 12 years of age.  The Applicant local authority is the London Borough of Sutton represented by Ms Chatterjee.  The first Respondent is Ms D is A’s mother and she is represented by Mr Fitzpatrick.  The second Respondent is Mr B, he is A’s father and he is represented by Ms Shrimpton.  Finally A through his guardian Julia Hughes is represented by Mrs Jones-King.  I should state straightaway that I am very grateful to all the professionals involved in this case for their very considerable assistance to the court.
2.	  The application before the court is the local authority’s application for a care order in respect of A and the application was issued on 11th July 2012.  The final hearing was listed to take place in the week of 2nd December 2013.  In the event the hearing started during that week but could not conclude due to the illness of one of the witnesses, Dr Pettle.  Most unfortunately I had to adjourn the hearing part-heard so that Mr Fitzpatrick had the opportunity to cross-examine Dr Pettle.
3.	  For the purposes of the hearing I have had the assistance of four lever arch files full of documents.  I have read all the relevant statements and reports in the bundles and have had the benefit of hearing live evidence from the child’s social workers Lisa Hammerton and Andrew Rowat and a social worker involved in family finding called Jennifer Walker.  I have also heard from Sarah Thomas who was one of the joint authors of the two Umbrella reports, from Dr. Pettle, Ms D and the Guardian.
4.	  As to the issues in the case, it was conceded from the beginning that the threshold criteria under Section 31(2) of the Children Act are satisfied in this case and a short statement of final threshold has been provided which is an agreed document reflecting that fact.  The issues therefore revolve around what orders if any are in A’s best interests.  To identify those issues I need to summarise the positions of the various parties as to the orders they ask me to make.
5.	  The local authority say that I should make a final care order based upon their final care plan which is a plan for A to be in long-term foster care.  Their plan also involves a significant reduction in contact between A and his family reducing to direct contact for Ms D of six times a year, three including D, direct contact for Mr B of six times a year and one additional direct contact for A with his maternal grandparents and stepfather and D.
6.	  Ms D’s position is put in a number of alternative ways.  Her first preference would be for the court to adjourn the case to enable her to participate in attachment work with Dr Woolgar from the South London and Maudsley Hospital (sometimes called SLAM) or alternatively with a more local team of professionals as recommended by Dr. Pettle, she then says there should be a further assessment by Dr Pettle with a view to A returning to her care.  She does not suggest A should return to her care straightaway.  Her second choice would be for the court to invite the local authority to amend its care plan to include provision for the attachment work described.  In any event she seeks more contact and if the local authority’s plan for long-term foster care is approved she argues for direct contact once every three weeks with additional contacts during holidays.
7.	  Mr B’s position is that he does not oppose the local authority’s care plan for long-term foster care but seeks more contact than they are offering and suggests contact once a month including occasional overnight stays.  He would also like telephone contact once a week.
8.	  The guardian supports the local authority’s plan for long-term foster care but does not support their plan for contact.  She says that A should have contact with his mother and his father once a month each but that these contacts should take place at the same weekend on a Saturday and a Sunday so that there is only one weekend a month with contact taking place.  In her position statement she suggested that a court order for contact might be needed because of concerns that the local authority wish to reduce contact.
9.	  I turn to the background to the case.  Mr M, who has sometimes been referred to as A’s stepfather is 44.  Ms D is 40.  Mr B is now 40.  A is 12.  Within months of his birth the relationship between Ms D and Mr B had broken down and Mr B had departed.  Thereafter Ms D commenced a relationship with Mr M which lasted for a considerable time.  Unfortunately there were problems with A and on occasions he was beyond the control of Ms D.
10.	  In 2009 A was in Section 20 accommodation for seven to eight months.  On 1st July 2010 D was born so he is now 3.  Ms D is D’s mother and Mr M is D’s father. D lives with his mother.  Problems with A continued and on 9th July 2012 A assaulted his mother and was made subject to a police protection order.  On 11th July 2012 the local authority’s application in these proceedings was made and shortly afterwards an interim care order was made and thereafter renewed.  The matter proceeded in the Family Proceedings Court until 15th July 2013 when it was transferred to the County Court.  As to where A has been living, he has been in foster care since 9th July 2012.  He was in a number of different placements until 18th November 2012 when he was placed with Mr and Mrs O where he has remained to date.  He has contact with his father every Sunday and with his mother once a week during term time and twice a week during the holidays.  Once every eight weeks he sees his maternal grandparents and stepfather.
11.	As to the adults in the case, Ms D is 40.  She has one brother called M.  According to Ms D her own father had an alcohol problem, was verbally and physically abusive to her and was violent to her mother.  He did nothing for her confidence telling her that no-one would ever love her.  Ms D is described as having had a very troubled adolescence E294 and she does not get on with M E29.  She has not seen her father for quite a number of years and has significant differences of opinion with her mother.  In the past she has had problems with alcohol and drugs but not for some years now.  She has had mental health problems and has had a diagnosis of emotionally unstable personality disorder.
12.	Mr B is 40 and has one older sister.  It appears that he may have been deprived of oxygen at birth and was at a special school for children with learning difficulties.  He has worked in a psychiatric hospital in the past including as an assistant nurse but currently works as a machine operator.  He is described as laid back and easygoing although the documents suggest that at times he gets panicked or has flashbacks E243.
13.	As to Mr M, he is 44 and was in a relationship with Ms D for a considerable period of time.  It appears that that relationship ended at about the end of 2011 or early 2012.  There were allegations of domestic violence during that relationship and it appears a non-molestation order was obtained in 2008 E118.
14.	As to A, he is 12 and, although there has been some disagreement about the accurate diagnosis, it is clear that he is a boy with complex developmental learning and behavioural needs.  He has a statement of special educational needs and is at a special school for children with a learning disability.  In the past he has had a diagnosis of ADHD and ASD although there is a dispute whether he has now outgrown ADHD and whether or not he has autism.  He is described as kind and compassionate E261 although possibly vulnerable socially E63.  He is very impulsive and easily distracted.  He can be aggressive and challenging and has for example assaulted his mother and bit her, smashed furniture at home and flooded sinks and baths in the house.  His behaviour is said to be much better in a calm and structured environment with clear boundaries.  He has settled well with his current foster carers and is making good progress there.  Unfortunately it appears that he feels responsible for his mother and tends to blame himself for being in care F545.
15.	I have briefly mentioned the threshold document which records that at the relevant date in July 2012 A was likely to suffer significant harm by being beyond parental control.
16.	I have had the assistance of a number of expert reports and assessments.  Dr Aziz is a consultant child and adolescent psychiatrist and on 30th December 2009 she said “the diagnoses of ADHD and autistic spectrum disorder are not in question .. his disruptive behaviour seems to be much more obvious when he is with his mother …” E137.
17.	  Dr Khor is a consultant child and adolescent psychiatrist and on 1st October 2012 at E10(d) says,“I have not noted anything that would suggest an autistic spectrum diagnosis for A”.  Dr Berg is also a consultant child and adolescent psychiatrist and has provided a report at E11 dated 8th October 2012.  She refers to A’s diagnosis of ADHD and ASD but says at E21,
“It is my opinion that A has outgrown his ADHD, I am also of the opinion that A does not have autism, A has learning difficulties and has needed ongoing support from school.”  She also says he seems to benefit from clear, consistent and containing parenting E22.  His hyperactive and agitated behaviour is based on emotional stress in the context of learning disability and previous adverse experiences in his family E25.”
18.	Linda Everard is a speech and language therapist and has provided a report dated 16th November 2012 at E133.  She describes A as very impulsive and easily distracted E134 and having language difficulties with his “profile of language” falling below average, being moderate to severe in nature E135.  She says he continues to need specialist support.
19.	  Dr Gemma Wilson is a psychologist and provides a report dated 22nd February 2013 at E140.  She says at E168 he has complex developmental behavioural emotional and therefore learning needs, he scores above the cut-off for an autism diagnosis E201 but it is impossible to give an autism diagnosis with any degree of certainty at this time E202, he has definite difficulties communicating and interacting with others and shows rigidity in his thinking and behaviour.  He might benefit from some therapeutic work E203.  Children with difficulties such as A’s respond to clear, calm and consistent parenting and boundaries.  Good enough parenting is often not enough for children with complex developmental needs E213.
20.	  Dr Sharon Pettle is a psychologist and she provided a report dated 19th May 2013 at E286.  In her report she says she saw Ms D who had said she felt numb when A was challenging and aggressive E292 and was herself provocative and antagonistic especially when she was nervous or uncomfortable E293.  She was overwhelmed by A’s behavioural difficulties, E299, finding D quite different from A E298.  A’s behaviour was far worse with her than with others and Dr.Pettle considered there was “a poor fit” between mother and son so that it was very unlikely A would have been able to form a secure attachment to his mother E312.  Dr. Pettle noted that “the extreme aggressive and destructive outbursts” that A had while in his mother’s care have not emerged while he is elsewhere and she concluded that his problems and their severity are likely to have been compounded by emotional aspects of his relationship with his mother E319.  In her view a significant part of A’s difficulties relate to the relationship with his mother but this does not wholly explain them E316.  In his current placement he has been able to enjoy praise, has a strong sense of boundaries and predictability and has been able to function more appropriately and take developmental strides forwards.  She says in her view it is likely if he returned to his mother’s care these gains would be lost and his behaviour would deteriorate once again E317.  Finally she says that despite the difficulties A’s relationship with his mother is important and in time it would be beneficial if contact could be longer. E317.
21.	 Dr. Pettle gave evidence at the adjourned hearing in February 2014.  She had seen updating documents but had not seen A or Ms D since her report.  Her oral evidence was very different from the evidence in her report.  Orally she recommended;
a.	Adjourning the final hearing for a period of approximately six months.
b.	Arranging an urgent meeting of professionals.
c.	Ms. D should be “helped or advocated” towards psychotherapy, of probably 4-6 months.
d.	There should be psychological intervention for A.
e.	“Proper narrative therapeutic work” for A and his family.
f.	There should then be an updated assessment of A.

She said all the work required should be linked together and not “a jigsaw of therapy”, and added that she “did not think it impossible” to do this in a coordinated way.  She did not support A’s return home at present.
22.	In relation to Ms D, Dr Dove, psychiatrist, provided a report dated 18th October 2012 at E26 and an addendum dated 27th November 2013 at E324.  Dr Dove describes a long history of self-harming E30, depression and low self-esteem E39 and agrees the diagnosis of emotionally unstable personality disorder E40, she says Ms D could benefit from further therapy which would be quite demanding and take a number of months E41.  In her addendum she says that Ms D has made progress in recent years E328 but the diagnosis is valid although it is possible there are no longer marked symptoms evident E327.
23.	The Umbrella Service provided a long assessment in relation to Ms D dated 21st November 2012 at E44, this says that Ms D does not provide A with clear boundaries E71 with Ms D treating A more as a friend, it concludes that Ms D has been unable to manage A’s behaviour for a number of years E110 although his behaviour is manageable in a calm and structured context where there are clear routines and boundaries E112.  When they are together A presented as the one who was more in charge and shows agitation and challenging behaviour when with his mother which is not present when he is with others E115.  It concludes that it is unlikely Ms D will be able to provide the parenting that A requires on her own and this is even more unlikely whilst she is caring for D as well E122; they express the opinion that Ms D would be unable to meet A’s needs within his timescales even with further support E123 and recommend a long-term foster placement for A E125.  In oral evidence ST said that A needed a secure base and was unable to believe in his mother as an authority figure.
24.	The Umbrella Service also provided a long and detailed report in relation to Mr B dated 11th March 2013 at E215, this records that A appears to like boundaries and routines E255 and wants the uncertainty to end E259, the foster carers describe him as a rewarding but demanding child to care for E266.  Despite reflecting many positives in Mr B’s relationship with A, they conclude that placing A with him would run the risk of his paramount need for stability being jeopardised E266.
25.	As to other evidence the social worker Lisa Hammerton said in relation to A there had been a very significant improvement in his presentation since he had been in foster care; he is not bedwetting, he is sleeping through the night, he is doing better at school, attending regularly, being able to express his feelings and has not destroyed property or hurt anybody since he was removed from his mothers care.  As to A’s wishes they seem somewhat confused.  He had said he wished to go back to his first foster carer but his main thought is to return to his mother’s care.  He wants a decision to be made.  Last time that she spoke to him he asked the social worker if the foster carers could care for him because he said he could not live with his father because the accommodation was unsuitable and he could not live with his mother because he might kick-off.
26.	  As to Ms D the social workers accepted that it was positive that she was not misusing substances but LH’s understanding was that this had been the case for quite a number of years and that it was unfortunate that Ms D had not attended LAC reviews or planning meetings with the local authority.  LH explained that she had a difficult relationship with Ms D and experienced her as hostile at times.  The social worker said that contact between Ms D and A had initially been very difficult but had improved.  The last time that A kicked off and had to be restrained was on 27th December 2012.  Contact with mother was much more boundaried than it was and A enjoyed seeing D.
27.	  As to Mr B the social worker had a good working relationship with him and said that contact was good, the only difficulty being that Mr B was sometimes unreliable in attending, he showed a lot of warmth.  As to the local authority plans, the social worker accepted that she had in her own mind effectively ruled out Ms D as a potential carer for A by March 2013 although she said the local authority did reconsider matters at review meetings.  She said that the planned reduction in contact for A would be likely to be very difficult for him.  When contact once a month was suggested she said it sounded like a good idea but it might be hard for A trying to form new roots and new connections.
28.	Jennifer Walker, the family finding social worker, provided an initial statement saying that ideally A should be the only child in the placement C382 and that currently the Local Authority do not have any in-house approved long-term foster carers C383.  She had contacted four fostering agencies to see if there was any point processing referrals and they all gave a positive indication in response, she said she thought there would be a small pool of approved carers to meet A’s specific needs and that matching will be difficult with contact being a relevant issue.  A high level of contact makes it more difficult to match children.  It was put to her that contact with his family was beneficial to A and her response was that from her perspective contact was one aspect of A’s needs but she had to take into account all his needs, she said that her experience told her that to have contact seven times a years in this situation was excessive and it was going to be difficult to match A.  She added that having an order for contact would have an additional significant impact on the prospects of achieving a placement for A.  In her more recent statement she explained that further enquiries had found a potential matching family for A with experienced carers who are open to work with continuing contact between A and his family.
29.	In her evidence Ms. D said she is not working at present, she moved house at the end of 2012 and now lives in a quiet three bedroomed semi with helpful neighbours.  She feels calmer and contact has improved.  She said she felt very defensive when being assessed by Umbrella and that was a problematic time for her.  She said she found Dr. Hanson really hostile and standoffish and her impression was that Dr. Hanson was not willing to work with her.  She said that A has his problems but there are many wonderful things about him and he is growing up.  She did not ask for A to return to her care now but “broadly accepted” Dr. Pettle’s recommendations.
30.	The Guardian agreed that the relationship between A and his mother had improved but added that in her view there was a big risk that it might revert back to how it was.  She disagreed with Dr. Pettle’s oral opinion saying that there was no sufficient justification for such a change and that the further delay was not justified nor in A’s best interests.  She therefore stood by her own recommendation for a final care order approving the Local Authority care plan for long term foster care but with additional contact as set out in her report.
31.	I make the following comments with regard to the live evidence I have heard from the experts in this case. I consider that the social workers were honest and were, as so often, simply doing their best given the limited resources at their disposal.   I found the evidence given by Sarah Thomas and the Guardian to be balanced, fair and thoughtful.  Although I appreciate that Dr. Pettle did not have a great deal of time to consider the updating documents provided to her, I consider that her oral evidence was not well thought out and no sufficient or adequate reasons were given for the very significant differences between her oral evidence and the evidence in her written report.
32.	 When deciding what order to make clearly I must and do bear in mind Section 1 of the Children Act with the welfare of A being my paramount consideration.  I must also bear in mind the welfare checklist set out in Section 1 sub-Section (3) of the Act.
33.	  Sub-Section (a) refers to the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding.  As to A’s wishes it seems clear to me on the evidence that he wishes the uncertainty to end, he is somewhat confused but certainly loves his mother and would like to live with her although he has also on occasion said he would like to live with his foster carers. In a letter A wrote addressed to me A says that he would like to live with his mother but not to go straight there and also would like to see more of quite a number of friends and relatives. 
34.	 Sub-Section (b) refers to the child’s physical, emotional and educational needs.  Clearly A is a boy with complex developmental learning and behavioural needs as is quite apparent from all the evidence including my summary of the evidence given above.  I also bear in mind the clear evidence which I accept that A’s behaviour can be highly problematic but is much more manageable in a calm and structured environment with clear boundaries.
35.	  Sub-Section (c) refers to the likely effect on the child of any change in circumstances.  Unfortunately A’s current carers are not able to be his long-term carers although very helpfully they have said they will continue to look after him until he is found a permanent placement, but not beyond July 2014.  Any change is likely to be difficult for him although the evidence is that if he is given a clear and calm explanation and given time to adjust he is better able to deal with changes E66, E308.
36.	  Sub-Section (d) refers to the child’s age, sex, background and any relevant characteristics.  I have mentioned quite a number of details about A in particular and of course in this context I very much bear in mind A’s relationship with his mother, his father and with his wider family and his right to family life as well as their right to family life.
37.	  Sub-Section (e) refers to any harm the child has suffered or is at risk of suffering.  I have referred already to the threshold criteria in this case and the problems that led to these proceedings being commenced and A being in foster care.
38.	  Sub-Section (f) refers to how capable each of the child’s parents and any other relevant person is in meeting the child’s needs.  Here I must look at the various alternatives.  Mr B has, I think very realistically and responsibly, accepted that he is not in a good position to offer A long-term care and therefore does not put himself forward as a carer for A.  This leaves the alternatives of the local authority’s care plan for A and the various alternatives put forward by Ms D.
39.	  As to the local authority’s care plan, their most recent care plan is dated 30th October 2013 and is at D31 in the bundle.  This is a plan for A to be in long-term foster care with contact subject to a phased reduction spelt out in detail on page D41 of the care plan as amended.  This now provides for reduction fairly speedily to direct contact with mother six times a year and with father six times a year and with the maternal grandparents, D and Mr M once a year.  It also provides for telephone contact for mother six times a year and father six times a year.  Support services are spelt out in the plan including the plan for continuing respite care which has to date proved important in A’s life.  I am satisfied on the evidence that this is a realistic and achievable plan but the question is whether it is in A’s best interests.
40.	What about Ms D as potential carer for A, albeit bearing in mind she is not proposing A returns to her care immediately.  There are of course many positives in her favour.  She is A’s mother and she clearly loves him and clearly wants the best for him.  She has been consistent and reliable in attending contact.  She appears to have put entirely behind her her previous difficulties with drugs and alcohol.  Contact has clearly improved and recent contact has been good and has clearly been enjoyed by A.
41.	  What are the difficulties?  It is clear on the evidence that the relationship between A and his mother is a very important one to both of them but one which has been highly problematic.  There is clear evidence of A’s behaviour deteriorating when in his mother’s care with A behaving in an aggressive and destructive way.  There is clear evidence that Ms D has real problems providing A with consistent boundaries with their relationship being more as friends and indeed the impression being obtained that A is more in charge than Ms D.  A’s progress while in foster care has been clear and obvious but there is evidence, which I accept, that it is likely that that progress would not continue but would be lost if he returned to his mother’s care.  Additionally, it is unfortunate but clearly established on the evidence that Ms D has had difficulties working with professionals.  There was a potential intervention to assist Ms D with a Dr Hanson but he considered that Ms D was not really ready for this support.  Further there has been and continues to be a difficult relationship between Ms D and the social work team.
42.	Bearing in mind all these different considerations the crucial question is what order is in A’s best interests.  Mr Fitzpatrick has attractively argued on behalf of Ms D that matters should be adjourned for Ms D to carry out the attachment work suggested either with Dr Woolgar or as suggested by Dr. Pettle followed by a further assessment by Dr Pettle.  Of course this is a possible way forward but the difficulty is that it involves a delay of quite a number of months for A with, in my judgment, a very uncertain result.  The question is whether the prospects of success justify such delay and continuing uncertainty.  I regret to say that in my view they do not.  Taking into account all the evidence and all the points that I have mentioned and considering all the possible alternatives I have come to the clear conclusion that it is in A’s best interests to make the order sought by the local authority on the basis of their plan for A to be in long-term foster care.  It is clear to me that this is in A’s best interests and that this is the order that should be made.
43.	The main reasons for this decision are;
1.	The evident difficulties in the relationship between A and his mother, both past and continuing,
2.	A’s particular needs, which I find more likely to be met by the Local Authority’s care plan than by any alternative,
3.	A’s very good progress in foster care, 
4.	Ms D’s difficulties working with professionals, and
5.	The further delay and uncertainty involved in the plan put forward by Ms. D which I consider would be unjustified and likely to be detrimental to A’s welfare.
44.	The question of contact is, however, more difficult.  On the one hand I fully accept that contact between A and his mother and father and wider family is very important to him and a very important consideration overall.  However equally if the care plan for long-term foster care is to be achievable and realistic, contact must not be set too high nor in too inflexible a way.  For this reason I do not consider that a contact order is desirable or in A’s best interests.  It seems to me that the best way forward for A is to have a care plan which spells out very clearly the plans in respect of A’s placement together with the plans in respect of his contact.  Such plans in respect of his contact should include, in my view, a realistic level of contact which is to be aimed at if possible but which has built-in some flexibility to reflect the point fairly made that A’s needs must be assessed globally including the question of achieving a suitable placement for him.  In the result, therefore, I consider it in A’s best interests to invite the local authority to amend their care plan to include the stated aim for contact to be at a level of twelve times per annum for Ms D and twelve times per annum for Mr B with a further direct visit once a year with the maternal grandparents and stepfather and D.  I think the plan should state in appropriate words that this is the intention but that it clearly needs to be kept under review in the light of how matters progress including most importantly the prospects of achieving a suitable placement for A.
45.	In the event therefore I largely agree with the views expressed by the guardian although my views about contact are only different insofar as she suggests a contact order may be needed.  Provided the Local Authority agree to amend their final plan as suggested in this Judgment I do not consider an order is desirable. I should explain clearly that I prefer the evidence of the Guardian to that of Dr. Pettle, at least in her oral evidence, in particular because;
a.	I consider and agree with the Guardian that there is insufficient reason for the additional delay and uncertainty involved in Dr. Pettle’s plan.
b.	I do not consider the prospects of a successful outcome are sufficient to justify further delay.
c.	I do not consider there was or is a sufficient reason for Dr. Pettle’s substantial change of view in circumstances where she had not seen any member of the family for a long time and where her revised views were, I consider, not fully or properly thought out.
46.	I appreciate and have borne in mind throughout this hearing and Judgment that of course that the order that I propose to make is one which interferes very substantially with the right to family life of A and all his family especially his mother and father but I consider for the reasons given that the order I propose to make is both justified and proportionate and in pursuance of a legitimate aim namely A’s welfare.

Dated this  10   day of      February          2014

His Honour JUDGE ATKINS

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.