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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> A (Adoption versus Special Guardianship order), Re [2014] EWCC B39 (Fam) (31 March 2014) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2014/39.html Cite as: [2014] EWCC B39 (Fam)

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IN THE CHELMSFORD COUNTY COURT

		Priory Place, New London Rd, CM20PP
		31st March 2014

HHJ Murfitt :

1. This judgment concerns A who was born in November 2012 and who is now 16 months old. A's mother is 24 and his father is 43. The parents were married in June 2013 and accordingly both share parental responsibility for A.
2. Consultant Psychologist Dr Andrew Derry identified in his report of July 2013 that the mother has a global IQ of 52 and thus a significant impairment in her intellectual ability. This he considers is such as to meet the criteria for learning disability. He subsequently provided a certificate of incapacity with the consequence that on 8^th August 2013 the Official Solicitor was invited to represent her. Eventually in October 2013 the Official Solicitor accepted the appointment and he has since represented her.
3. A's father has a long history of violence and sexual offending, and is currently the subject of a suspended sentence of four weeks following his conviction under s4(1) and (4) of the Protection from Harassment Act 1997. This arises amongst other things out of threats, which he made to kill A's maternal grandfather. A restraining order imposed as part of the father's sentence prohibits him from contacting the grandfather or the grandfather's partner directly or indirectly by any means whatsoever, save through a solicitor or through the family Court. The order also prohibits him from entering an area which covers the home address of the grandfather and his partner, and it will expire in August 2015. The father is currently under the management of the Public Protection Unit as a high risk offender. His criminal record includes convictions for actual bodily harm to a baby, a conviction for rape, more than one conviction for indecent assault, another for possession of a bladed article, as well as numerous petty offences relating to dishonesty and road traffic matters. The Criminal Justice Mental health team has diagnosed the father with a psychopathic disorder.
4. A's grandfather and his fiancée have cared for A for the majority of his life and have been joined as parties to these proceedings. On 15^th March 2013 they were granted an interim residence order in relation to A. They have since applied for, and been granted leave to pursue an application for an Adoption Order. All parties, with the exception of the father, who has not played an active part in these proceedings since March 2013, agree that A should remain in the care of the grandfather and his partner. The couple has been comprehensively assessed and without exception the resulting reports have highlighted that they have provided and continue to provide A with a high standard of care and that the grandfather's partner is A's primary attachment figure.
5. There is nevertheless considerable disagreement between the parties as to the type of order which is required to safeguard A's needs in this placement, and the issue also arises as to the level and nature of contact between A and his mother following the conclusion of these proceedings, and what if any orders should be made in that regard. The Applicants and the Guardian are opposed to any formal contact orders being made, whilst the mother seeks an order for monthly supervised contact between A and herself. The Local Authority argues that an order for twice yearly contact with the mother is appropriate together with a Family Assistance Order if that can be agreed, but with no contact to the father.
6. The grandfather and his partner's application for an Adoption Order in relation to A is supported by A's litigation Guardian. However A's mother and the Local Authority argue that a more appropriate order would be a Special Guardianship Order in favour of the Applicants. Whilst s14 of the Children Act would require prior leave to be obtained before the making of any application to vary or discharge a special Guardianship order, the Local Authority and Official Solicitor suggest that an order under section 91.14 of the Children Act may be appropriate to act as a barrier to any other unwarranted future applications by the parents, by requiring preliminary leave to be obtained first. The Local Authority also proposes that a number of supplemental orders might also be made such as a permission to change A's name under s14B(2)(a) of the Children Act 1989 and an order for general leave to remove him from the jurisdiction for periods in excess of 3 months under s14B(2)(b). In the initial skeleton arguments filed on behalf of the Local Authority and Official Solicitor it was argued that an order under s4(2A) of the Children Act might also be made to limit or discharge father's parental responsibility. However since his parental responsibility was acquired through his marriage to the mother, s4(2A) will not apply to him, and his ability to exercise his parental responsibility cannot be circumscribed or eliminated through that means, as the Local Authority and Official Solicitor now accept.
7. All parties, with the exception of the father, have filed lengthy skeleton arguments in support of their respective positions, as well as written final submissions. I have read each of these as well as the statements filed by the parties, including the Special Guardianship Report of A's social worker dated 19.7.13 and the expert report of Dr Derry, and final report of the Guardian. I also read an Independent Social Work Assessment dated 23.12.2013 which was prepared at the Court's direction concerning the Applicants' suitability as potential adopters for A, and this also considered the merits of a special Guardianship order in the alternative. That report concluded by recommending that consideration should be given to an adoption order as the better alternative for A. I heard oral evidence from the allocated social worker, as well as from the grandparents, and finally from the Guardian. Mother chose not to give any live evidence whilst her husband, as mentioned, did not attend the hearing.
8. The background history to the Local Authority's involvement is summarized in the findings of fact and reasons prepared by DJ Dawson (MC) on 22^nd February 2012 when she made an Emergency protection order in relation to A. In the light of the father's offending history the Local Authority undertook a pre-birth assessment, and whilst this was in progress on 15 August 2012, father threatened suicide and took an overdose, which he explained was a response to the stress of being under the scrutiny of social care. A's mother remained unwilling to separate from him, although in the light of their disparate ages and intellects there were concerns that he was both violent and controlling towards her.
9. A's mother did however agree to go and live with her grandmother following A's birth, and arrangements were made for the father to have supervised contact. After an argument between the father and the maternal great grandmother which led to the former sitting on the bonnet of the latter's car to prevent her moving whilst A was inside, that arrangement broke down. On New Year 's Day 2013, the mother decided to take A to see the father notwithstanding her prior agreement with the local authority that she would not permit him to have unsupervised contact, and in spite of her grandmother's attempts to dissuade her from going. Sadly as a result of the mother's decision the maternal great grandmother concluded that she was no longer able to accommodate her granddaughter and great grandson because of the risks posed by the father. From this point mother decided to go and live with father and his family, and as a result A was placed by the Local Authority in the temporary care of his maternal grandfather and his partner.
10. However on 13^th February 2013 the father threatened to attend the grandfather's home and smash the windows and/or harm him. The grandfather was so concerned about what the father might do, that he called the Local Authority in great distress saying that he and his family no longer felt safe or able to care for or protect A in the light of the threats that had been made. It is fair to observe that this is likely to have been precisely the consequence which the father hoped to achieve. Neither parent was willing to agree to A's placement with alternative Local Authority foster carers under s20 Children Act.
11. On 19^th February father once again made further loud and aggressive threats against the grandfather whilst attending contact at a contact centre. Staff found father difficult to control and had to remove him from the room to prevent further distress to A. Later on in the same day, the Police were called to escort him from the Local Authority's premises, after he had threatened to remove A from the grandfather's home, and then after pushing a chair at a security guard, he threatened to 'break the social worker into pieces'.
12. This was not the first occasion on which the father had shown hostility and aggression towards those involved in his son's care. At the initial child protection conference on 21.11.12 his threatening behaviour caused so much alarm to the mother that an ambulance was called to take her to hospital for observation. At the Child Protection Conference review meeting on 19.12.12 the independent Reviewing officer found it necessary to remove him from the room due to his aggressive behaviour. On 9 January 2013 the father turned up uninvited to an appointment which the mother was attending at a mother and baby unit, and was verbally abusive to the social worker when he was requested to leave.
13. It was as a result of his unpredictable behaviour that the Local Authority initially sought an EPO without notice to the father, because they were concerned that his reaction upon being served with the proceedings would pose a direct threat to A's safety. On 22nd February 2013 A was duly removed from the care of the grandfather and his partner and placed with local authority foster carers under an emergency protection order. Following this an interim care order was made by DJ Dawson on 28^th February 2013 when directions were given for a viability assessment of the grandfather and his partner to be undertaken. When complete this was positive, and a residence order was thereafter made in their favour on 15^th March 2013. A 'Prohibited Steps Order' was also added forbidding the father from entering the vicinity of the grandfather's home, other then when travelling on a bus. Those orders remain in force to date, although the Local Authority questions whether the prohibitive parts of that order meet the requirements of s8 of the Children Act, in that A is not referred to, and it is not clear how the order aims at prohibiting "a step which could be taken by a parent in meeting his parental responsibility for a child."
14. Eleven days later on 26^th March 2013 the parties returned to Court for a case management hearing, and on this occasion (as is recorded in the recitals heading the order made on that day) the father sacked his legal representative, stating that he no longer wished to be assessed, or to play a part in the proceedings, and that he would not be attending any future contacts with A. I note that both the statement of the previous social worker dated 26.7.13 and the Guardian's report of 10^th February 2014 indicate that this happened at the hearing on 15^th March 2013. Whichever was the correct date in March, both professionals confirm that the father was very aggressive towards the grandfather's partner on this occasion whilst at Court. The Guardian who witnessed the incident describes 'a very frightening scene in which the father attempted to grab the grandfather's partner across the table in the interview room where she was sitting with the grandfather', and it is apparent that the father was thereafter forcibly removed from the Court precincts by security guards.
15. It is clear that the Applicants have been on the receiving end of considerable antipathy from the father, and at times also from the mother, although in the latter's case the Applicants consider this likely to be at the father's instigation or direction. On 5^th March 2013 the previous social worker records that both parents made allegations against the grandfather and his partner and her children. It was alleged that as a result of Social care disclosing the details of the father's convictions to them, there were arguments within the grandfather's family which were impacting negatively on A. The mother also made an allegation against the grandfather's partner and her adult daughter, that they had assaulted her on 22^nd February 2013 when A was removed into care. As a result of this allegation the grandfather's partner was later arrested on 14^th May 2013, and then held in custody for nine hours before being released on bail. This I accept would have been a very distressing experience for her, especially since at the conclusion of their enquiries the Police concluded that the allegations were unfounded, and took no further action.
16. On the 13^th March 2013 the parents arrived on the applicants' doorstep shouting and causing so much distress that the Police were called. Next day at contact on 14^th March, the mother alleged that A had been injured by one of the Grandfather's partner's daughters. She also alleged that both the partner and her daughter were heavy drinkers and incapable of caring for A, and that the grandfather had presented as drunk when he had attended at the home of the father's parents. The Guardian records that the mother also suggested to her that grandfather's partner was sexually unfaithful to the grandfather. However none of these allegations have since been pursued or substantiated.
17. In her position statement filed for the hearing on 26^th March 2013the mother maintained that she had ended her relationship with the father, and that she was actively seeking alternative council accommodation as she now wished to care for A on her own. Notwithstanding this, on 17^th May the grandfather's partner reported to A's social worker that she had learned via Facebook that the mother was due to marry the father on 19^th June 2013, although when she was directly asked about this, the mother denied it was the case.
18. Nevertheless on 22^nd May both mother and father attended at the grandfather's partner's place of part-time work, and created a scene which caused the latter considerable public and professional embarrassment. Specifically father accused the grandfather's partner of staring at him out of the store window whilst he and the mother were passing, and advised staff and customers that the store had a 'criminal' working for them. The grandfather's partner was not in fact working in the store on that day, and she was clear that she had never seen them passing either. This was one of the incidents in a series which had occurred since February 2013, culminating in a threat which father made to kill the grandfather via the "Irish traveler community", which ultimately led to the father being arrested and charged under the Protection from Harassment Act in July 2013. For these offences he was subsequently convicted and sentenced in August 2013 as detailed above. At the time of his arrest the father also made allegations of harassment against the grandfather. These too were duly investigated by the Police, and as with the allegations made by mother, were ultimately found to have been made maliciously. The Police have put in place certain measures including provision of a panic alarm to the grandfather and his partner in order to protect them.
19. Despite her position statement filed in March, and her denial to social workers in May of having any plans to marry the mother and father were nevertheless married in mid June 2013. It is reasonable to conclude that the position presented by the mother to professionals and to the Court prior to her marriage was more the result of advice that she had received as to where her best interests might lie, rather than a reflection of her personal feelings in the matter. I note that the Guardian's observation of the mother's demeanour at Court in March 2013 when the father was aggressive towards the grandfather's partner and had to be removed, is also consistent with this. Although the mother appeared very upset whilst in Court and had to be comforted by her barrister, as soon as she exited from Court she was observed to be smiling, as if (in the Guardian's words) 'her tears had been turned off with a switch'.
20. In his psychological assessment of the mother Dr Derry noted that whilst she did not describe any history of abuse or maltreatment in her childhood, she remained extremely preoccupied by feelings of abandonment and rejection by her father, arising from her parents' separation during her childhood when her father left her mother. He noted that the mother's adult attachment strategy indicated a tendency to exaggerate personal difficulties in order to recruit care and support, and that she assumes a submissive position in her adult relationships to eschew fears of rejection and abandonment. He added that her drive to resolve her feelings about her relationships would often obscure her thinking about A, making her less able to prioritise his needs over her own. Specifically it would increase her vulnerability to abuse within her relationships, and reduce her self protective and child protective behaviours. Mother described symptoms of PTSD in the past arising from severe physical and sexual abuse which she said she had experienced in her past adult relationships, although these symptoms fell short of the criteria for a disorder. However she described a reduction in such symptoms when with the father, with whom she said she feels 'safe'. This Dr Derry observed only increases her desire to be with him. In Dr Derry's opinion mother's intellectual ability also impairs her ability to understand the potential risks to A notwithstanding her knowledge of father's offending history. Dr Derry assessed her as having a particularly poor appreciation of her son's thoughts feelings and experiences, which he considers is a poor predictor of her ability to be sensitively attuned to A's developmental needs, and being less aware of distress associated with abuse, she would be less able to act protectively. In his assessment the quality of her parent-child attachment interaction was in the 'inadequate' range. He observed that there was little reciprocal interaction with A, who often resisted any bids for engagement on her part. Noting that she was extremely limited in her understanding of the risks presented by the father, and in the estimation of her own ability to manage these, Dr Derry concluded that the mother would not have the potential to protect A within that relationship, and that she would be likely to conceal the relationship from family and professionals. He recommended that A should not be returned to either parent's care, and that contact with his mother should be reduced. He opined that "The quality of mother's interaction with A would not indicate that that this experience would be greatly beneficial to A at this stage of his life". Looking to the future he went on to recommend that if placed outside of his parents care: "contact should be dictated by the quality of his placement, and directed by the permanency teams assessing A at that time. A's age, pre-existing relationship with his parents and the quality of the parent-child interaction would not indicate that direct contact would be indicated at this stage."
21. The Official Solicitor on behalf of the mother submitted that his client now supports the placement of A with her father and his partner, and that she has done nothing to destabilize this, nor would she do so in the future. It was also argued that any future applications for a discharge of a special guardianship order would be unlikely because the mother would be extremely unlikely to be able to demonstrate sufficient change of circumstances to justify the grant of permission. With the extra safeguard of an order under s91(14) of the Children Act, it said that the circumstances of a secure and permanent placement can therefore be assured for A under a Special Guardianship order.
22. It is argued that despite knowing where A lives the parents have refrained from attending at the grandparents home (I assume since March 2013), and that any risk of them doing so in future could be mitigated by the grandparents changing their address, or by injunctive relief. A contrast is drawn between the father's strong opposition to A's placement, and the mother's acceptance of the special guardianship order. Notwithstanding her marital relationship with the father, the Official Solicitor argues that his client is capable of making decisions independently of her spouse, citing the fact that she has continued her independent contact with A notwithstanding that the father has ceased attending as he said he would. On behalf of A's mother it is therefore submitted that there is no valid reason why she should not be kept informed of A's school or any change in his surname in the future. Any risk that father may misuse his parental responsibility, could, it is argued, be adequately addressed by injunctive orders.
23. Although A's lifestory book will remind A of his biological relationship to his mother and father as well as his grandparents, concern is expressed on behalf of the mother that he will become 'confused and psychologically unsettled' by the knowledge that his grandfather and step grandmother have been made legally his parents, should they be able to adopt him. It is fairly argued that Special Guardianship Orders were introduced by the legislature to avoid the possibility of such 'skewed' family relationships, whilst providing a child with security within a kinship placement. It must be remembered that the severing of A's legal relationship with his parents does of course represents a draconian interference with his and their rights to a family life under Article 8 of the ECHR. It is argued that such interference would not be proportionate in the light of A's welfare needs, and that the making of an adoption order may even exacerbate the risk to his security, by exacerbating father's sense of unfairness and frustration.
24. On behalf of the Local Authority it is submitted that the test which must be applied when considering any application for an Adoption order, and the dispensation of the parents' consent to the making of such an order is that outlined in the case of re P (Placement Orders: Parental Consent) [2008] 2 FLR 625 . It is not a question of whether adoption may be in the child's best interests, but rather whether his welfare requires more imperatively that his parents' consent to adoption should be dispensed with. Notwithstanding the positive recommendation of the independent social worker which the Local Authority does not seek to challenge, and the support of a Guardian whose long experience is not questioned, the Local Authority argues that it is not possible to say that A's welfare demands his adoption by the applicants, and that such an order cannot be a proportionate response to his needs in the light of the range of alternative orders which might be made instead. Lastly in the light of the financial constraints to which Southend Borough Council in common with many other authorities are subject, it is also argued that there may be 'further challenge and expense' if mother's parental responsibility is sacrificed in the name of protecting A from his father.
25. As regards direct contact the Local Authority's position has changed during the course of these proceedings. Initially when the current Social Worker completed her Special Guardianship report in July 2013 she recommended that face to face contact between A and his mother would not be in A's best interests at that stage, and that letterbox contact twice yearly combined with A's life story book would be appropriate to secure A's sense of self and belonging. The concerns which she highlighted as informing that view, relate to the evidence that A has become subdued after contact with his mother, taking a day to return to his usual self, and to concern raised by the Family Resource Centre where contact was taking place that contact is hindering A's development due to his mother's lack of emotional understanding of his needs and her inability to monitor her own emotional state or keep it in check. In this respect the observations of the Local Authority's Family resource centre were congruent with those expressed by Dr Derry.
26. However In paragraph 7.1 of her statement prepared on 10 January 2014 A's social worker proposed that direct contact between A and his mother should be facilitated and supervised by the Local Authority once every 6 months, under the auspices of a one year Family Assistance order should the parties consent, or if they do not consent then an order for direct contact order should be made. In this statement the view is expressed that mother poses no risk to A during contact sessions, that she has shown commitment to attending, and has not contested the making of a special Guardianship order. Since her husband has not tried to turn up at her contacts, it is argued there should be no risk to A from his father disrupting contact in the future either.
27. In Paragraph 13.5 of her statement the social worker indicates that the change in the Local Authority's position on the issue of direct contact has arisen due to what is seen as the increasingly difficult relationships between the mother and grandfather and his partner. On review, she states that this "does not leave the necessary room for consideration for contact which will be necessary for A to maintain a relationship with his mother and understand his identity". In response to concerns articulated by the independent social worker that the applicants will face being left on their own without funding or the local authority's support in the future, to deal with conflicts in relation to contact or prospective Court applications, the social worker expressed the view in her statement that with everyone's consent, a 12 month family Assistance Order under s16(3)(b)might be made to support the family, in the event that a Special Guardianship Order is made. Although the Local Authority's duty under such an order would be limited to 'advising, assisting and befriending' A's social worker said in her oral evidence that the Local Authority might provide a contact venue and supervision under such an order for one year, but added that it was not part of any proposed special guardianship package to provide ongoing support for contact. I found it difficult to follow her analysis of why, when relations between the family were on a better footing no direct contact should have been considered in A's best interest, whereas when relations worsened, direct contact was considered to be of greater significance to his welfare. The Local Authority's written statements did not suggest that their recommendation for 'no direct contact' had sprung from the expectation that this would happen naturally by consent between the parties, rather it was positively argued that it was not in A's interest at this stage. However in her oral evidence A's social worker said that the Local Authority's revised recommendation in favour of direct contact was prompted by concern that direct contact between A and his mother may not otherwise transpire consensually in the future without a Court order. On the other hand due to the evidence suggesting that direct contact has had an adverse impact upon A, his social worker considered that a frequency of twice a year would give him 'time to settle' between contacts. In cross examination it was fairly put to her that given the existing lack of attachment between A and his mother with weekly contact, she would effectively be a stranger to him, were he to be taken to see her at intervals of six months. However her response was that 'if a relationship is possible, it is desirable'. In the skeleton argument filed on behalf of the Applicants concern is expressed that the Local Authority's suggested 'support' for the grandparents and management of contact has been limited. Specifically although it was made clear to mother that she should not do so, she has continued to photograph and upload images of A onto the Facebook social networking site, which she has taken during contact. Notably on 28^th January 2014 when she took three or four photos of A towards the end of contact she told staff that she " needed to take them so his daddy could see them". Meanwhile the agency used to supervise contact complained of having inadequate instruction from social workers as to the photography issue, and no member of the Local Authority team visited the grandparents to discuss the matter directly with them. Neither did they receive any response to their written requests for the local authority to undertake some social work with mother to establish some contact ground rules or to resolve the issue.
28. A position statement prepared on behalf of the grandfather in November 2013 indicates that it is not mother's learning disability that leads him to make the application to adopt A, but the malevolent influence which the father holds over his daughter, and the inability of either parent to exercise their parental responsibility to A's benefit. Specifically it is argued that neither parent has been able to demonstrate an ability to contribute anything reasonable and child focused on the issue of how his or her parental responsibility should be exercised, and whilst they continue to share Parental Responsibility the grandfather and his partner are afraid that A's well being and stability in their care will be adversely affected, not least by contact being used by the parents as a vehicle to raise more allegations, and create further conflict and anxiety.
29. In a position statement filed on behalf of the father also in November 2013 he not only voices his support for the mother's contact, but makes it clear that notwithstanding his withdrawal from the proceedings in March 2013 he ideally wishes to have weekly contact with his son, or at least some level of direct contact which will enable him to re-establish his relationship and enable A to grow up with the benefit of knowing both his parents. He makes his extreme opposition to any order which will allow the grandparents to care for his son plain, but indicates that he will not attend the hearing because he does not wish to be accused of making any threats or comments and due to the criminal proceedings which he links to what he describes as their 'fraught relationship'.
30. It is the Applicants' belief, supported by the Guardian, that the suspended sentence which has been imposed upon the father, is having some impact in curbing his behaviour, but they have little faith this inhibition will endure when the operational period of the 18month suspended sentence expires. Neither do they share the Local Authority's optimism that his abstention from contact for the past year, portends an end to the likelihood of any future hostility. They point to the fact that his limited prospects of success did not inhibit him from issuing an application for a contact order as recently as 5^th October 2013 either.
31. Even though a special Guardianship order would require the parents to seek leave under s14D(3) & (5) of the Children Act before being able to apply to vary or discharge the order, the applicants are concerned that even applications for permission will be unsettling for A particularly since his views may also have to be the subject of further professional enquiry as he grows older. Future applications for contact would not require prior leave to be sought by the parents automatically, but an order under s91 imposing such a requirement would also cause the Applicants the same concern. I accept that they would be likely to be aware of such applications for permission through the family grapevine, and more directly via communications from the parents, whether through social media or in direct contact sessions. So too the prospect of having to seek the parents' agreement or leave of the Court under s14C(3) for any change of name, or removal of A from the United Kingdom adds to the applicants concern. The prospective need to consult with the parents over other issues of parental responsibility such as changes of school, or provision of medical treatment for A also causes the Applicants anxiety. Whilst legally s14C may permit Special Guardians to exercise parental responsibility to the exclusion of any other person with parental responsibility, the Guardian's experience is that that in everyday life school teachers, medical practitioners, and police officers routinely assume there is an obligation to consult with a parent who retains parental responsibility, and that they are generally unfamiliar with the provisions of s14C or how a special guardianship order should operate.
32. The Applicants state that whilst the Local Authority perceives mother as essentially benign in her intentions, because she has indicated her support for the Applicants' care of A in these proceedings, they remain concerned that the Local Authority underestimates the influence which the father has over her behaviour. A recent example they cite arises from a letter sent on behalf of father on the day following his wife's contact with A in October 2013 when he alleged that the grandfather's partner had abused the mother by calling her 'a cunt'. The grandfather's partner denied having done any such thing, and noted that the mother herself only made the allegation after solicitors had written seeking clarification of whether she supported the father's claim or not. On 26^th January this year the mother participated in a conversation on Facebook in which she asserted " Me and hubby are fighting for (A) to come back to us" whilst expressing the hope that he would be coming back in the following month. Of her father she wrote "I fucking hate him" and of his partner: " she's a bitch" and she indicated that she not think it 'okay' for her son to be with them. I accept these remarks do not lie easily with the view advanced on her behalf that she is essentially supportive of A's placement and presents no threat to his stability. A's social worker ventured the suggestion that mother might want her son to return to her care in an ideal world, but in reality she knows it won't happen. In this context I consider it right to bear in mind, that whilst she is represented by the Official Solicitor, the decision whether or not to pursue any particular application is not exclusively hers to make, however that restraint will no longer apply at the conclusion of this litigation. It is also fair to observe that this would not be the first time there has been a dissonance between the case advanced by the mother to her representatives and to social workers, and that which she has espoused in private. Her deception in relation to her marriage is one previous example.
33. A's Guardian, refers in her report to father's unpredictability and his 'self-directed' as opposed to 'child-centred' application in October which she argues was motivated by his extreme resentment and dislike of the applicants. Importantly she also expresses the view that his dislike is fuelled by the mother's jealousy and resentment of the role that the grandfather's partner plays in her father's life. In her analysis the mother's feelings in turn fuel the father, and the couple have what she describes as "a reciprocal toxic relationship underpinned by jealousy, anger and resentment which is projected onto the grandparents". The last years' history of abusive and intimidating behaviour on their part leads the Guardian to suggest that in combination the parents have the capacity for continuing to generate unfounded but plausible allegations directed against the grandparents regarding their care of A, and that this has the potential throughout A's childhood to create disruption and distress for A as he grows older and more aware of his parents' actions. She predicts that any future contact between A and his mother is likely to generate scenarios in which the mother will make complaints, which will, if she is still with the father, fuel his existing anger and resentment and lead to further such incidents.
34. Since mother chose not to give any oral evidence, I did not have the opportunity to assess for myself precisely what influences may have prompted her to make the remarks which she did on Facebook, and in the circumstances I consider there is all the more reason to accord weight to the Guardian's observations concerning the dynamics of the relationship between mother and father and the Applicants, since she has had longer exposure to all the protagonists in these proceedings than any other professional. Some indication of the mother's feelings in relation to her father and his partner was evident to me during the hearing, in that the mother responded to much of their oral evidence by rolling her eyeballs or sharing wry smiles with the social worker who sat nearest to her.
35. Another reason to prefer the analysis of Guardian over that of A's social worker arises from the Guardian's decades of experience as both social worker and Guardian. In comparison A's social worker has been qualified for only one year. She was also unable to say how many times she had personally visited the applicants since last July, and remarkably conceded that she had not during the period of her allocation as A's social worker observed any occasions of contact at all. She accepted that the hostility in this case is unusual in that more commonly there is a level of co-operation between parents and special guardians of a child, although she also said this case was her first experience of special guardianship. It was put to her that the risks to A are not so much about physical removal as they are to do with the constant undermining of his placement and the impact upon his carers of fielding the parents' hostility. In reply she replied "Well if contact is managed, the risks can be managed". This seemed to me to ignore the evidence of hostile allegations and complaints which have arisen both within and outside the context of contact. The reply also begged the question of who will be 'managing' those risks? and how? not just in 2014/15 but during the remainder of A's upbringing. When asked what in her view would justify adoption she replied that if the parents were challenging at contact or made any further significant threats, then adoption would be appropriate. In other words she identified adoption as protective measure, but in her view a premature one before the anticipated harm was actually done.
36. With regard to the important issue of whether A's identity is liable to become skewed by the effect of his grandfather becoming legally his father through adoption, the Applicants argue that this is unlikely to happen firstly because they do not seek to deny who A's mother and father are, they retain photographs around the house of all the family and through these, and A's lifestory books they envisage he will be well aware of his identity and background. They remain in regular contact with the mother's half brother, who visits them regularly, and are also in touch with the maternal grandmother and great grandmother. The grandfather's partner also detailed how they have included A's birth certificate and hospital bands in his lifestory book together with every card he has received from relatives and photos of his mother and father and extended family members
37. Secondly having had his home with the applicants from birth, there is no dispute that A regards the applicants as his primary carers, however the grandfather has always been referred to within the family as granddad and envisages this will continue to be the case whatever order is made. Since his partner shares no other blood relationship with A there is no other familial relationship which adoption might be likely to skew so far as she is concerned. Both the grandfather and his partner made it plain that they hope that at some stage in the future the mother will extricate herself from the relationship with father and play a part in A's family life. However they see no immediate prospects of this happening, and they regard her recent decision to marry him as evidence of his domination of her.
38. I was impressed by the warmth of emotion expressed by the grandfather's partner in relation to the mother whom she has known since she was a young teenager, and with whom she shared a common interest in horses. The distress which she showed during her oral evidence at the mother's apparent rejection of her father and herself, seemed to me entirely genuine and unaffected. So too did the strength of her motivation to keep A safe and give him stability. She explained how if further applications were made, however unmerited they would feel vulnerable and insecure and unable to prevent the worry and uncertainty that A might be removed. She said "he is settled and a happy part of our family and we do not want that to change", adding that they would also be worried if he ceased to have any legal relationship with them at the age of eighteen because, as she put it "everyone needs to feel they are loved and belong somewhere, we just want him to grow up and be happy". She described the father (who had been admitted into their home and invited to family events as the mother's partner before A was born) as an extremely controlling man who has a say in all that mother says and does. She expressed her opinion that the mother is scared of him. When A was born she said they had offered to convert their dining room as a room for mother and A, and invited her to stay with the baby, but she did not want to, and stated that the father was 'her life'. She said mother's uncle and his wife made a similar offer which she also rejected. She accepted that this was the mother's choice and that they could not force her to make a decision. They had tried to make her see sense and prioritise A, but she would not. However she said that whilst she had never envisaged this happening whilst mother was pregnant, after a year as A's primary carer her priority is no longer the mother but A. She was nevertheless able to express creditable empathy for the mother saying that she felt bad for her: that having three children of her own she knows what it is like to be a Mum, that it would 'rip her heart out to lose a child', but she added "I would always put my children first". Now when she goes into town with the pram she says she remains vigilant, looking around more than usual and avoiding places where she thinks mother and father may be. She said she would love to relocate so that the father does not know where she lives and so that they might all feel safer and more secure without the risk he presents hanging over them. However at the moment she did not see it as a financial option, but hoped nonetheless to retain the possibility of doing so. She said she is 48 and had not expected to be in this position now that her own children are grown up, but that she did feel vulnerable. She conceded that the father may have little respect for any order that is made whether special guardianship or adoption, but said it would be safer for A to know that his father could not apply later to take him away.
39. With regard to contact the grandfather's partner noted that A does not cry when she hands him to the supervisor , he just adopts a glazed look. When she returns to collect him he becomes smiley again and jumps up and down. At home he will then become quite clingy wanting to be cuddled, and crying if she leaves the room. In contrast on a normal day he will be quite happy playing with his toys. She said she did not support direct contact, because her priority had always been to keep A safe, and that her position had never been any different. Whilst mother remained with father she did not envisage that would change. She said A is not a difficult baby, but even fortnightly contact with mother is upsetting for him and for her and she felt it unfair to put him in this position every six months, but would nevertheless comply with whatever the Court determined to be best for him, as she has done thus far
40. She said she will always tell A that she had a good relationship with the mother and that she was like another daughter to her. In response to any questions he may have as to why his mum could not look after him, she said that she would tell A that his Mum loved and wanted him but wasn't able to look after him. If he wants more, she said she would try and give it to him, but would never talk in a negative way about the mother. As she put it: "she loves him, its just that she loves father more."
41. The grandfather's partner also said that her partner will always be A's grandfather whatever order is made. Her personal experience of being adopted by her mother's husband at the age of 7, and of calling her grandmother to whom she was close 'Mummy B' whilst always knowing that she was her grandmother, leads her to be confident that A will have little difficulty with names whatever their legal relationships are. She said he calls her either 'nanny' or 'mummy' interchangeably. With regard to changing A's name, the concerns of the grandparents are twofold: Firstly they are concerned that A's registered name has saddled him with an unfortunate acronym which is likely to be hurtful to him in later life. Secondly they are concerned that A's home and school will be easily traceable by the father during his upbringing unless they provide him with a new first and last name for formal registration purposes. They propose to retain his existing forenames and use 'A' everyday even if it becomes his second name. It was submitted on behalf of the mother that the choice of name which had given rise to the unfortunate acronym had been an innocent mistake rather than deliberate act on the part of his parents. Either way, it does seem to me to be in A's interest for his names to be registered in such a way as will not cause him humiliation or distress as he is growing up. Since he will continue to be called A I do not think there is reason to believe he will be confused if his first and last names are formally changed for registration purposes. I also consider on the evidence that details of that change should be withheld from his parents, whatever other orders I make, since it will enhance the security which he and his carers ought to be able to feel, that A's life is not under constant scrutiny and risk of disruption at the hands of his father.
42. It was the view of the Guardian that the applicants have had to put up with a series of incidents which can be considered unique for carers within the family, in her experience. She said she had been aware of the impact these incidents had had on the family over time and described it "absolutely awful for them". She was emphatic that it was unreasonable to expect any carer to have to tolerate this. She did not share the view that the mother can be relied on to exercise her judgment independently from her husband, since her learning difficulty makes it difficult for her to make independent judgments, and she is in thrall to her husband and will do what he thinks is the appropriate thing to do whatever it may be. She did not agree that a Special Guardianship Order would enable the applicants to manage that risk. She said she had wide experience as both an assessor and guardian in Special Guardianship order cases including in post Special Guardianship order cases where later contact applications have arisen, and so despite the dearth of research on the longer term impact of Special Guardianship orders she had some first hand experience of the impact of applications upon families who thought they had achieved permanence.
43. She described this as "a rare case" because in the majority of cases where kinship carers come forward, they may not be best pleased with the parents or may even be tense with them, but there is usually a level of consensus such that they are able to function with limited contact, whilst the Special Guardianship order offers both permanence as well as a wide range of identity contact with the birth family. However she emphasized it is usually premised upon permanence being 'a given', with goodwill on both sides and without undertones of mischievous activity. The focus of hostility towards the proposed carers by the parents, which is seen in this case, is not normally found in Special Guardianship order cases.
44. She made it clear that it had been herself rather than the Applicants who had first raised the question of whether adoption was necessary to safeguard A's welfare throughout his life. She accepted that direct contact for identity purposes normally works reasonably well when a child has concrete memories and a knowledge of life within his birth family, typically where removal has taken place after the age of three years. Within contact each can draw on some shared experience, and provided the parent accepts the placement and does not disrupt it, direct contact will enhance the child's identity. In contrast the Guardian observed that identity contact rarely works well where a child of A's age has his primary attachment elsewhere, and where the child shows signs of being unsettled during contact with a parent who was not there enough in early life to enable the child to form any attachment to him or her. The Guardian had no criticism of the way in which the mother behaved towards A in the contact which she observed, but she said it was a fact that she failed to enable him to settle; yet within moments of the grandfather's partner re-appearing A was settled again, and clearly demonstrating his primary attachment to her. She considered that twice yearly contact to a person with whom A has no primary attachment and who is unable to make him feel settled or secure, runs the risk of unsettling A's sense of security with his carers. As he becomes more verbal he will potentially refuse to go. The more so if the mother is unable to screen in her mind what is an appropriate thing to say to him, and instead follows that which her husband tells her is appropriate.
45. At the present time the contact notes make it clear that the mother is keen to reinforce her own status as A's 'mummy'. This may not have been inappropriate to date, but is likely to become increasingly confusing for A who is bound to regard the grandfather's partner as his mummy at least at an emotional level during his upbringing. In the Guardian's view to force a contact order on permanent carers in these circumstances would ordinarily be considered extreme, save perhaps in cases of implacable hostility. However she emphasized that this is not a case where A's carers can be described as implacable or unreasonably hostile, because their fears are grounded in the reality of their experience as to what father is capable of, and which induces in them and in the child what she described as an "aura of unpredictability". She considered that there is a realistic likelihood that in the longer term these applicants will be forced to return to Court with the consequential disruption of their family life. It is she opined entirely predictable now, and it sets them up for disruption and heartache. I think the Guardian is probably accurate when she observed that in enacting the Special Guardianship option the legislature will have expected there would be a reasonable level of co-operation between the relevant carers, otherwise one would not have expected them to have envisaged shared parental responsibility to be good thing for the children concerned. She opined that if it is necessary to hedge around a special guardianship order with specific issue orders, prohibited steps orders and s91 orders this of itself tends to indicate that a special Guardianship order is not right. This she said this is the first time she has made such a recommendation in a family placement but she was emphatic that the facts in this case warrant the draconian step of adoption in the child's interests. The applicants in her view need the safety net of being able to disappear should they need to do so, and which they cannot do so long as parental responsibility is shared. Should the parents appear on the applicants doorstep, she also considers that an adoption order will help them to persuade a police constable that the parents are to be treated as legal strangers, which in reality may prove difficult for a constable to accept where parental responsibility is still shared. The Guardian considered it likely to benefit A if direct contact with his maternal grandmother and maternal great grandmother could be achieved. This is something the applicants have expressed their willingness to explore and they have written to maternal great grandmother and arranged contact to include these extended family members whilst the hearing has been part heard. This is notwithstanding their anxiety that the great grandmother might inform the mother of A's whereabouts and thus risk the father getting to know . The Guardian's advice that grandmother's house or the family resource centre might be considered a safe venue to begin with was a sensible approach to mitigating that anxiety, and I am pleased to note it has born fruit.
46. It has been the recommendation of the family centre, the Independent Social Worker, the Guardian and Dr Derry that direct contact is not likely to be in A's interest following the final hearing. The contact notes as well as the unchallenged professional evidence all make it clear that there is no significant attachment or bond between A and his mother and that he has become increasingly distressed and inconsolable at being left with her at a contact centre during this year, even though his mother has done nothing overtly detrimental to him. I think the Guardian is absolutely right in identifying that the mother has not been available for A in a consistent manner because of her own emotional neediness, and whilst contact may help to fulfill some of her emotional needs, it is doing little to cater for A's emotional or developmental needs
47. In my judgment the evidence in this case is not just finely balanced but overwhelmingly indicative that an adoption rather than a special Guardianship order would better serve A's welfare and provide him with a more permanent and reliable degree of protection. I consider the threat of further applications to be entirely predictable in the light of the known history and I do not consider that a s91.14 order would provide the reassurance necessary to remove the spectre of this disruption from A's daily life. There is some force in the reservations expressed by the Guardian as to whether a Special Guardianship Order hedged about with prohibited steps orders, specific issue orders or s91.14 inhibitions, does not call into question the wisdom of making the order in the first place. As she observed in her evidence: "If you circumvent all areas of concern what is the use of the parents retaining Parental Responsibility if they are unable to exercise it anyway?"
48. Overall the evidence leaves me very far from reassured that the mother is presently capable of putting her son's needs before her own, or before her husband's needs and wishes. I accept as is submitted on behalf of the applicants that the parents do pose a significant and enduring threat to A's emotional welfare which will not be removed by the making of a Special Guardianship Order. The risk of harm emanates from the likelihood of ongoing litigation, and from harassment, allegations, or further complaints and inappropriate attempts to exercise Parental Responsibility on the part of his parents. In my Judgment the applicants are sensible reliable and caring people who can be trusted to do their utmost to both protect A's safety whilst also ensuring that his emotional welfare and identity within his family is appropriately nurtured. I have confidence that when and if mother is able to separate from father and chose her child over her need for her husband, that A's carers are likely to be amenable to including her within family gatherings of which A will be a part. I also consider that they are similarly well disposed to encourage A's contact with his uncle and with his maternal grandmother and great grandmother subject always and appropriately to safeguarding A from his father's interference. In all the circumstances, with my paramount consideration being A's welfare throughout his life, I am entirely satisfied in the unusual circumstances of this case, that an adoption order is a proportionate response to this child's needs, and that it is the only order which will truly provide the physical as well as emotional security which he needs to develop to his fullest potential in life. In these circumstances I will dispense with his parents consent since I am clear that A's welfare requires it.
49. I have carefully considered whether the making of a contact order would serve to enhance A's welfare, and I am satisfied in the light of the evidence from the family centre, from the independent social worker, from Dr Derry, from the Guardian and from my own reading of the contact notes, that direct contact with his mother is not presently serving to meet any emotional need of A, and that its' continuation risks causing harm to his emotional development and attachment to his primary carers, should they be compelled to continue facilitating this. I am not satisfied either that making an order for contact would be better for A than making no such order. The latter option would vest primary control where it should lie: in the hands of A's primary carers who have his best interests at heart.
50. Nevertheless I do recognize that the mother holds genuine feelings of affection for her son, even if they are not wholly reciprocated. Within the limits of his ability to understand this, I consider it will be helpful for him to experience a final farewell visit with his mother, the memory of which will be recorded and retained in A's life story book. To provide some continuum for A, reminding him as he grows older that his birth mother continued to hold him in mind, I also consider it will be helpful for A if his mother is afforded letterbox contact. Despite her learning disability mother is able to read and write, and I hope she will take the opportunity to send A written cards or letters with suitable photographs of herself on up to two occasions each year for example at birthdays and Christmas. Whilst the Local Authority will not be involved in brokering this, I consider that sending such items via one of A's other extended family members such as his uncle should ensure that this is maintained even if the family move to a confidential address in the future.
51. If A wishes to send any reply I am confident that the grandfather and his partner will help him to do so, but it should remain in their discretion. So too they should retain the discretion as to the wisdom of providing the mother with any reciprocal note from themselves updating her about A's milestones in life, or his interests. Whilst this may very well assist the mother in knowing what to write back in a way which is relevant or interesting to A, I recognize also that the Applicants will wish to ensure that they do not in the process jeopardize the confidentiality which they will rightly wish to provide for A in order to preserve his security as part of their family throughout his childhood and on in to later life.