Important Notice
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 child and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court

Case No: LU13CO3882
Neutral Citation Number: [2014] EWFC B100 (Fam)
IN THE LUTON COUNTY COURT

Family Section
2nd Floor Cresta House
Alma Street
Luton
Bedfordshire
England
LU1 2PU

Tuesday, 22nd January 2014

BEFORE:

HER HONOUR JUDGE DAVIES

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BETWEEN:

BEDFORD BOROUGH COUNCIL
Applicant
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(1) CB
(2) TB
Respondents
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Transcribed by John Larking Verbatim Reporters
Suite 91, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP
Tel: 020 7404 7464, Fax: 020 7404 7443
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MR BURMAN appeared for the Local Authority.

MISS FAIRCLOUGH (instructed by Woodfines Solicitors) appeared for the Mother.

MR GENTILELLA (a solicitor from SBS Solicitors) appeared for the Guardian.
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JUDGMENT

Tuesday, 22nd January 2014

JUDGE DAVIES:

1.	TB was born on 1 June 2013, so he is now seven months old.  The local authority have applied for a care order.  They also seek an order dispensing with the consent of the parents and a placement order with a plan for TB to be adopted. TB’s mother seeks the return of TB to her care.  The children’s guardian supports the local authority.  

2.	The mother is aged 29.  She has been assessed by Dr Campbell as having capacity to conduct this litigation.  He assessed her IQ at 79, placing her in the borderline range of intellectual ability.  She has been assisted and supported in the hearing by an advocate from Voice Ability.  The mother has conducted herself well and with dignity throughout the hearing.  She gave evidence, which I accept was very difficult for her to do.  I am clear that the mother wanted to have a baby and that having TB has fulfilled her deepest held wish.  I am clear that she has the greatest love for TB and she wants the best for him.  

3.	The father of TB is AD.  He has played no part in the proceedings.  He has not answered any correspondence, he has not attended any pre-birth conferences or meetings, he has declined to take part in any DNA testing but his daughter from another relationship did give a sample of DNA, which confirmed that the daughter and TB shared one parent.  AD has been convicted of a sexual offence against his daughter and he served a prison sentence of six years.  He remains in contact with a probation officer, Erica Cook.  He has never had any contact with TB and no one proposes that he might be a suitable carer.  The mother chose not to put his name on TB’s birth certificate.  

4.	The mother was brought up by her father as her parents separated when she was aged about three.  The grandfather has about nine other children, some of whom lived with him and with the mother as she was growing up.  It is uncontroversial that the mother has an extremely close relationship with her own father and she accepts his advice and copies the way he dealt with childcare issues.  The grandfather has not been supportive of the mother since TB was born.  He failed to visit her during the residential assessment and he has only spoken to her by telephone latterly.  He has not accompanied her to meetings or to court.  

5.	The maternal grandmother has had very limited contact with the mother as she was growing up with many years passing between the visits.  The maternal grandmother has been more supportive since TB was born.  She was Mother’s birthing partner.  She has visited Mother and she has spoken frequently on the telephone, however she has not accompanied Mother to court.  She is not able to put herself forward as a carer for TB as she wishes to concentrate on building a relationship with the mother.  Both grandparents had negative viability assessments and neither grandparent challenges the assessment.  

6.	TB’s birth was traumatic.  He needed resuscitation.  He was in the special care baby unit for about two weeks. Mother remained in hospital with him, spending a lot of time on the neonatal ward.  As a result of various tests that were carried out on TB he has been diagnosed with a genetic chromosome disorder, 7Q11.23 duplication syndrome, otherwise known as Williams syndrome.  The full effect of this will not be known until TB is somewhat older but the information before me is that there may be difficulties with his speech and language delay, he may have mild or moderate learning difficulties, he may have behaviour similar to autistic spectrum disorders, he may be vulnerable to acute anxiety, there may be subtle facial features.  Children with Williams syndrome are generally healthy but a minority of children may have seizures.  It was thought that TB may have difficulties with hearing and sight but since he has been in foster care those concerns have diminished.  He has some difficulties with low muscle tone and is having physiotherapy.  The carers have also been given exercises to do with TB to encourage him to roll.  His health difficulties will require him to have medical attention throughout his childhood.

The Law
7.	In determining the issues of this hearing I apply the following principles: first the burden of proof lies with the local authority.  It is the local authority that brings the proceedings and identifies any findings of fact that they invite the court to make.  The burden of proving any allegations and proving the case rests with the local authority.  The standard of proof is the balance of probabilities.  In the case of Re B (Children)  [2008] UKHL 35 Lord Hoffmann observed:
“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.”

Any findings of fact must be based on evidence.  Munby LJ as he then was in the case of Re A [2011] said:
“… is the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.”

8.	The evidence of the mother is of the utmost importance.  It is essential that a court forms a clear assessment of the mother’s credibility and reliability.  The mother must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of a parent.  It is not uncommon for witnesses in a case to tell lies in the course of an investigation or in the course of a hearing.  The court must be careful to bear in mind that a witness may lie for various reasons such as shame, misplaced loyalty, panic, fear or distress.  The fact a witness has lied about some matters does not mean she has lied about everything.  In this case it is not said that the mother has lied but it is said that the mother may or may not have been honest or open with the local authority and I apply the same test when I consider her evidence.  

9.	The applications are brought under section 31 of the Children Act initially, so the local authority must therefore satisfy me to the requisite standard that TB has suffered significant harm and that the harm is attributable to the fact that the care given to TB is not what it would be reasonable to expect a parent to give.  I must take into account the matters set out in the Welfare Checklist under the Children Act before making a care order.  The welfare of TB is my paramount consideration.  Before making an order dispensing with the consent of the mother to the making of a placement order I must take into account the factors set out in section 1 of the Adoption and Children Act 2002.  I must take into account that TB has rights under Article 8 of the ECHR.  I must respect his private and family life and I must only interfere with those rights if it is necessary and proportionate to do so.  I must take into account the recent authorities of Re B and Re BS and I summarise some of the language used.  Adoption is a draconian order.  Family ties may only be severed in very exceptional circumstances.  Everything must be done to preserve personal relationships and where appropriate to rebuild a family.  An adoption order made without the consent of the parents is a very extreme thing, a last resort only to be made when nothing else will do, where no other course is possible in the child’s interests.  It is the most extreme option.  It must be a last resort when all other options have been explored. 

10.	I turn then to the threshold.  The findings sought by the local authority are set out in the threshold document in the bundle.  In brief and in summary they are:

a) 	AD’s  conviction for sexual offences and the mother’s knowledge of that, which puts TB at risk;
b)	AD’s continuing risk as he has not undertaken a sexual offenders’ programme;
c)	That mother is a vulnerable adult with very poor executive functioning, which puts TB at risk if she cannot plan, keep track of time, multitask and ask for support from others;
d)	Mother undertook a 12-week residential assessment, which concluded that TB would have been neglected if a professional had not stepped in.  There were concerns, including Mother needed constant prompting to engage with TB, she failed to recognise TB’s cries, there was a lack of consistency around feeding, particularly feeding times, and Mother’s own personal hygiene was a concern;
e)	TB has complex health needs.

The mother accepts all of these apart from d).  She did not accept the conclusion of the residential assessment.  The local authority have modified paragraph e) to the extent that they accept that Mother acknowledges TB’s complex health needs and they acknowledge it would be quite wrong to remove a child from a parent simply because of complex health needs.  The way they put the case now is that because of TB’s complex health needs he needs to have a proactive parent and it is their case that the mother does not have the capacity to be proactive so far as TB’s health is concerned.  

11.	I have read the trial bundle and I have heard oral evidence from the following witnesses: Emma Holloway was the social worker who was involved from 20 May 2013 until October 2013.  During the period that Miss Holloway was involved the local authority held a pre-birth case conference and they arranged a cognitive assessment by Deborah Nelson.  It was later discovered that Deborah Nelson was not accredited in the UK but nevertheless she produced a report, which I have read, which identified some of the issues for the mother.  The local authority also arranged for the mother to have support from an advocate.  The local authority arranged for the mother and TB to go straight from the maternity unit to the Purple Residential Centre for the 12-week residential assessment.  As TB was so unwell when he was born he did not leave hospital until he was about three weeks old.  The mother and TB  then went to Purple, they stayed there from 19 June 2013 until 23 September 2013.  That assessment having concluded that TB could not safely leave the unit to reside with Mother, the local authority at that point issued the application for a care order and applied for an interim care order.  That was made on 23 September 2013.  Since leaving the residential unit TB has had contact with the mother three times a week and that has been supervised by Purple.  The local authority have produced some but not all of the contact notes.  Miss Holloway during the time that she was responsible for the case also dealt with the DNA issue and she attended a core group meeting when the mother was at the residential unit.  She referred the family to the Family Group Conferencing Service to ascertain whether any other family members could be identified to care for or support TB.  That family group conference was negative.  I am satisfied that Miss Holloway and the local authority as a whole have worked well and professionally with the mother.  I am satisfied that they did everything that could be done to work with the mother and to avoid issuing these proceedings.  I commend them on their approach to this case.  

12.	Miss Griffiths is the current social worker.  She has prepared the care plan and she has overseen the contact arrangements since November 2013.  She has had little contact with the mother and she has not observed any contact sessions herself.  She has liaised with the foster carers.  She noted that from the reports of the foster carers that TB is described as a very happy little boy who is feeding very well, he will give everyone a smile, he lies in his cot talking to himself until it is time to get up, he is in a settled routine.  She noted that his sight and hearing seemed to have improved. 

13.	 She in her witness statement analysed the options for TB.  On the basis of the residential assessment she had concluded that TB could not safely live with the mother.  She highlighted some of the issues that remain, including Mother’s inability to protect TB, possible issues with AD, Mother’s need to be in a relationship, which has included her meeting men on the internet so that she can meet up with them in order to have sex.  

14.	Miss Griffiths had concerns about Mother’s ability to work openly with the local authority and to provide accurate information.  In that regard she referred to the mother’s inability to tell the consultant at the hospital about the difficulties she had when she gave birth to TB.  I do not consider that that is a fair criticism as it seems it was a response given by the mother without thinking.  When she was asked, “How was the birth?” she said, “Fine,” in reply, whereas with a little prompting she accepted there were serious problems and concerns.  I find that that is an illustration of Mother’s lack of understanding of the importance of the question rather than a desire by the mother to mislead.  

15.	Miss Griffiths accepts that the mother loves TB and she accepted that it would be an advantage to TB to live with someone who loves him as much as the mother does, however in carrying out the balancing exercise she concluded that the lack of support for the mother, the risks to TB and the mother’s own lack of ability led her to conclude that the mother could not safely meet TB’s needs.  

16.	Miss Griffiths considered whether supervision or support could make up for the shortfall in the mother’s ability and she concluded that there was no support that could be offered that would meet TB’s needs 24 hours a day, seven days a week.  

17.	Miss Griffiths had discussed with the current carers if they would be willing to be long-term carers under a special guardianship order.  They were clear that at this stage and at this time they would not do so. They did say to her that if TB is not placed for a very long time, in which they were thinking of years, not months, and if TB’s health needs are clarified by that time they may consider applying for a special guardianship order but that is not an option that is available today.  

18.	She noted that the viability assessments did not produce any family members who could provide a home for TB.  Miss Griffiths was clear that at his age long-term foster care would not meet TB’s needs, even though it would allow for there to be continuing contact with the mother, and in her witness statement she pointed out comments made by Pauffley J that long-term foster care is an extraordinarily precarious legal framework for any child, particularly for a very young child.  

19.	So she was driven to the conclusion that the care plan for adoption was the only option for TB. She noted that the disadvantages for TB would be the severing of his legal ties with his mother and his birth mother but she concluded that the advantages for TB of having a secure and settled home growing up without state intervention would outweigh that disadvantage.  Miss Griffiths had consulted the Family Finding team, who confirmed that because of TB’s potential disabilities, which are not yet identified, he will take longer to place in an adoptive home than other children.  She considered that it may take in excess of six months and could take up to two years.  It will be partly dependent on how TB’s disabilities manifest themselves.  I accept that Miss Griffiths has conducted a thorough and careful analysis, weighing the advantages and disadvantages and in particular bearing in mind that TB’s special needs will make finding a placement more difficult for him than for many children and I accept her analysis.  

20.	Mrs Anne Green from Purple also gave evidence.  She is an extremely experienced social worker, who manages Purple.  During the assessment she met Mother each week and she spent between six and ten hours a week with her. She had overseen the work of the staff and she had read all the daily logs.  In her two reports she had extracted examples of concerns which she amplified in oral evidence.  Mother was supervised 24 hours a day, seven days a week.  Mrs Green was absolutely clear that the mother loved TB and wanted to do her best for him and that the mother was committed and cooperative throughout her stay.  
21.	She said that often at the halfway stage mothers start to show what they have learnt in the first part of the assessment and they build on it.  As she believed that Mother had learning difficulties as a result of the assessment by Debbie Nelson she approached the sessions with Mother on that basis and she used special tools, including pictorial tools.  In fact, Dr Campbell’s assessment is that Mother’s learning difficulties are not nearly so severe.  I am satisfied that approaching the sessions in the way that she did and on the basis that the mother had greater difficulties, that did not disadvantage the mother and in fact it gave her greater opportunity to learn, understand and to develop her understanding.  

22.	The issues relating to Mother’s parenting include the following: 

a) 	Preparation of bottles and feeding.  Initially there were problems with Mother winding TB but I am satisfied that by the time she had left she had improved her understanding and she was well able to deal with that.  What the mother was not able to do was to think ahead.  She was not able to plan or prepare bottles so that TB was not left crying and hungry when he needed a feed.  Mrs Green set out some examples of when this happened.  I accept her evidence that she has not listed every single time but she noted that this was a frequent enough concern, which remained a concern even at the conclusion of the assessment, for example on 1 and 2 September.  She noted that the mother would get distracted by watching television or texting on the telephone and that feeding TB would not be seen as a priority at these moments.  In her final report Mrs Green set out in detail the logs of every activity on 1 September and these issues are highlighted in the detailed log of 1 September.  Again, I accept that was an illustration and a summary of what was seen and observed on other days as well.  

b)	There were no issues regarding bathing of TB.  Mother was commended and is commended for getting into a good routine with TB, however it was a concern that Mother was not able to deal with her own hygiene in the same consistent way.  She was seen to wear the same clothes for many days and she also went for many days without having a bath.  I accept that the mother would have preferred to use a shower but she did not have a working shower and so that did not excuse her failure to keep herself clean.  

c)	Stimulation.  I accept the evidence that the mother has bought TB very many toys and books and she has done her best to provide suitable stimulating activities for him, however it is clear from the evidence that the mother did not know what to do with these toys and her interactions with TB were inconsistent.  Sometimes she would try and engage with him and engage in activities and chat to him but at other times she would leave him to his own devices and not even talk to him.  The assessment found that she was very easily distracted or engrossed in television or using her phone so that she was not noticing TB and not interacting with him.  

d)	It was clear from the evidence that the mother was not able to multitask during the assessment.  The mother accepted that she had difficulty in remembering some of the conversations and discussions and the advice she had been given.  I noted in this context Mrs Green’s oral evidence that the mother had said on one occasion to Mrs Green when TB was a bit older that she was going to put a rusk into TB’s feeding bottle when he was older because that is what her father had done.  Mrs Green told her that that was quite inappropriate and she must not do it, however I note that the mother had exactly the same conversation with a contact supervisor on 11 December 2013.  I accept that the mother had not remembered or understood the advice she had been given by Mrs Green during the assessment.  

e)	Initially there was concern about Mother’s ability to cook but I accept the evidence that the mother was taught to cook some basic and simple dishes and she was able to put that into practice under supervision. 

f)	Mrs Green was concerned that when advice was given the mother was often resistant and she said she knew what to do as she had been taught or learnt from her father.  Mrs Green in her oral evidence noted the recent example in contact when the mother had said she was going to put tights on TB as the father had put tights on his sons, even when the supervisor said it was not appropriate to put tights on a little boy baby.  

23.	During the assessment Mrs Green was most concerned that the mother received and sent text messages to and from AD.  The messages from AD were of a sexual nature and they particularly upset the mother as AD has a new partner.  Mrs Green assessed the mother as still being emotionally attached to AD and that this attachment impacted on the mother in that she responded to the texts.  In addition, the mother engaged in text messages of a sexual nature with other men that she met on the internet, including one message that was seen by staff towards the end of the assessment.  

24.	Mrs Green’s assessment was that the mother had no understanding of the risk she was at from engaging with these men.  She was concerned that the mother loved the attention that she got from men and that the mother said that men love women who have babies.  The mother clearly enjoyed taking TB out in his pram as she was given attention by men when she did so.  I accept Mrs Green’s evidence that the mother had no understanding of the risky behaviour in which she engaged, in particular in just seeking a man for sex when she went onto the internet. 
25.	 I accept the evidence that the mother is vulnerable and has a very limited understanding of how to protect herself, let alone TB.  Mrs Green noted the lack of any family support while Mother was in the unit.  She concluded that the mother’s desire to be “normal” and to have a man in her life is deeply and emotionally driven and therefore puts her and TB at risk.  

26.	For all of those reasons she concluded that TB would be at risk in the care of the mother due to the mother’s own needs.  The mother would be unable to protect TB and keep him safe.  I accept Mrs Green’s evidence as being fair and balanced.  The supervision 24 hours a day, seven days a week kept TB safe but I accept her evidence that it is not possible to continue supervision at that level in the long-term.  

27.	The mother gave evidence.  I have already said I give her credit for the way she did so. She described TB as being a lovely little boy, happy, healthy.  She said:
“He loves me and he gives me a hug.  He is always happy to see me.  He can sit up and almost roll over.  He loves all the food that I love: mashed potatoes and rice pudding.  His health needs are like mine.  I had problems with my legs.”

She said in oral evidence that she is more than happy and, in fact, she is keen to do a parenting course.  She has already signed up at the ABC for a course.  She said she has had experience of bringing up kids as she helped her father with her younger brothers and sisters.  She had done a childcare course.  She feels she is a good mum and she can provide TB with all the care he needs.  She was clear in her oral evidence that she would not have or allow any contact with AD.  He had sent her a letter before Christmas to which she did not respond.  He turned up at the flat and banged on her door within the last month but she did not let him in.  She said she was very frightened when he came to the door but she did not call the police.  She said she was too frightened to do so.  

28.	She said in evidence that she had recently had a day out in London with a male friend and they had gone to a spa together but she said she is not in a relationship with him.  In the contact notes it is recorded that she said she was taking things slowly.  She agreed that she had had a series of relationships and one night stands with men she met on the internet and that she had had two miscarriages before TB was born.  

29.	The local authority say that when Mother was in hospital her aunt told a nurse that she had heard the grandfather say to the mother that it was all right to meet AD behind the local authority’s back.  The mother denies that this was said and there is no evidence that the mother has in fact met AD or attempted to do so.  I place no reliance on that allegation and I accept the mother’s evidence that she has not had a meeting with AD and that she now accepts that AD would be a risk to TB.  The mother accepted in her evidence that at times she has accepted her father’s advice in preference to that of the professionals and says that that is because it was very confusing.  She said she would have support from her mother, from her father and from her two aunties.  I find in reality, as I have summarised already, that her family have not been able to provide her with any meaningful support up to this point.  

30.	Having heard the mother’s evidence I have come to the conclusion that the mother has not demonstrated any real insight or understanding of the levels of the concerns.  She has minimised the difficulties she has when she was in Purple.  She has failed to recognise the impact of her lack of consistency and routine on TB.  She has not understood the concerns about her relationships with men that she has met on the internet for sex or the risks that that poses for herself or for TB.  From the contact notes I find that the mother has remained somewhat stubborn in her approach and reluctant to accept advice and just as one example I note her insistence on taking TB out for a walk in the pouring rain when it was not necessary or in his interests to do so.  I note the mother frequently has taken him out to the shops in the course of the two-hour contact, so that has limited the amount of time that she has had to engage with him and it has also made it more difficult for her to ensure that she was feeding him properly.  I find that the pleasure the mother had from actually being a mother and from being seen to be a mother, pushing the pram around the town, that all outweighed any consideration she had for TB’s needs.

31.	The children’s guardian supports the local authority’s case and in her oral evidence she reiterated her conclusions.  She added into her analysis of the options the possibility that the foster carers may consider special guardianship at some point in the future but the children’s guardian was clear that that was not an option today.  The guardian was very sympathetic to the mother but she concluded there was no option other than adoption.  She accepted that the mother is fully committed to TB and that no one else will love TB as much as the mother does but she noted that even in the contact the mother had to be prompted by contact supervisors.  She said that the mother is not intuitive and her responses are pre-programmed.  She believes that contact is meeting the mother’s needs rather than TB’s needs and I accept that assessment.

32.	So having analysed the evidence I turn to the decisions I have to make.  First of all on the threshold I am satisfied the local authority has satisfied me to the requisite standard that the assessment from Purple was appropriate and accurate.  I therefore find that the threshold is crossed as set out. Paragraph 4 was in effect the only issue I have to make a ruling about, the others being accepted.

33.	The Welfare Checklist.  It is TB’s welfare that is my paramount concern.  I find that TB loves his mother.  If he could speak he would say that he wanted to live in a home where he is safe, secure, nurtured and that all his needs are met.  I find that Mother cannot meet his physical and educational needs without prompting.  That would require 24-hour supervision or support.  I find the mother could meet TB’s needs for love.  Change will be difficult for TB but in fact he has only been with one set of foster carers, who are committed to remaining as his foster carers until a permanent home is found.  TB is a very young child with special medical needs which are not yet clarified.  He needs a carer to be intuitive and proactive to ensure that all his medical and developmental needs are met.  I accept the evidence that any carer would need professional input, for example from physiotherapy or from speech and language therapists, and that that help would be available to the mother as well as to any other carer. I have concluded that the mother does not have the intuition required to meet TB’s health needs.  

34.	Harm or risk of harm:  I have dealt with this in respect of the threshold findings.  In particular I note that even if Mother is able to keep TB safe from AD, she is living a risky life with her meetings with men from the internet.  TB would be at risk of serious harm from this risky behaviour which the mother has not been able to acknowledge.

35.	The mother’s capacity.  She has tried hard.  She wants to be a good mother but sadly all the work that was done in the 12 weeks of assessment has demonstrated that the mother does not have the capacity to care for TB without 24-hour supervision.  No other courses and no amount of support would enable changes to be made for the mother to care for TB on her own and that I find illustrated by the continuing issues seen in contact.  

36.	Before making the placement order I must consider the impact on TB of ceasing to be a member of his birth family.  There is no family member who is available to care for TB, despite the viability assessments and the family group conference.  TB will need to grow up knowing about his birth family.  I have no doubt that the mother will be supportive in creating a photograph album for TB and doing life story work for TB.  The mother has said that if TB is adopted she wants to be able to send a photograph of herself to TB for TB to keep and I see no reason why that should not happen and it would enable TB to know that he has a mother who loves him and who wanted to care for him.

37.	So I am going to make the draconian order that is sought.  I am satisfied that having looked at the case globally and holistically, no other option is available for TB.  Sadly for the mother, I have concluded that TB’s needs require me to make a care order and to dispense with her consent and to make a placement order.  I have concluded that these orders are necessary and proportionate.  In those circumstances I approve the care plan.  I know the mother would like to continue to have contact with TB three times a week.  I find that that is not appropriate if TB is not going back to live with her. I approve the care plan and the proposal to reduce contact to once a week initially and then to once a month until a placement is found.

38. 	Finally, I want to thank all of the advocates for the sensitive way in which they have conducted this case and in particular I want to thank Miss Fairclough who has ensured that the mother’s case has been fully argued before me.

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Approved
Her Honour Judge Lindsay Davies