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[ren] and members of their [or his/her] 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.

AJ12C00008
IN THE FAMILY COURT
SITTING AT SHEFFIELD
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF BM (ACHILD)

19/20/22/27 May 2014	

Before

HER HONOUR JUDGE CARR QC

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IN THE MATTER OF 

BM, a girl born on 30th September 2008

BARNSLEY METROPOLITAN BOROUGH COUNCIL
(Applicant) 

-v-

KP
(First Respondent)
DM
(Second Respondent)
L & SG
(Third and Fourth Respondents)
BM
(Fifth Respondent)
(Acting through her Children’s Guardian)
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Transcribed from a Dictated Judgment by
J.L. Harpham Limited
Official Court Reporters and Tape Transcribers
55 Queen Street
Sheffield S1 2DX

HANDED DOWN ON 4 JUNE 2014

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Miss O Weir (instructed by Barnsley Legal Services) for the Applicant.
Miss D Tighe (instructed by Bury & Walkers) for the 1st Respondent
Miss D Whittaker (instructed by Howard & Co) for the 2nd Respondent
Miss M Power (instructed by Emery Johnson Astills) for the 3rd&4th Respondents
Mr L Dodgson (instructed by Atherton Godfrey) for the Children’s Guardian

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JUDGMENT
		JUDGE CARR QC:   
		INTRODUCTION  
1.			I am dealing with a little girl BM who was born on the 30th September 2008, and is therefore now aged five years eight months.  BM is the fourth child of the first respondent mother, KP, who was born on the 8th of April 1980, and the second respondent father, DM, who was born on 2nd December 1983.  The other children of mother and father are no longer in their care.  The eldest two children, L, born on 15th September 2003, and S, born on 4th November 2004, were adopted in the mid-2000's at a time when mother was pregnant with their third child, H who was born on 2 January 2006.  As a result of mother and father moving H remained in their care but subsequently became part of the proceedings involving BM.  There are two younger children, C and D, who were born respectively on the 23rd October 2009, and 3rd June 2011.  
2.			In respect of H, BM, C and D those four children were made the subject of care proceedings on 16th March 2012.  Following a contested hearing on 10th April 2012, all children were removed from the parents’ care.  Proceedings in relation to H, C and D concluded in respect of H in 2013 and in respect of C and D in February 2014.  BM’s proceedings unfortunately remain outstanding and were dealt with by this Court in terms of evidence on 19th, 20th and 22nd May 2014, with submissions being received on 27th May 2014.  
		BACKGROUND 
3.			This case is characterised by neglect and the findings that were made by Recorder Lee QC on 10th April 2012, really encapsulate the problems that this family had and, in particular, the impact it had on their children.  The findings made by Recorder Lee QC on 10th April 2012, are the backbone of the causes of neglect and the problems that now are suffered by BM.  I set out the portions of Recorder Lee’s judgment where she considers what has gone wrong within this family and they are as follows: (a) the parents volatile relationship including a past history of domestic violence which both parents fail to acknowledge, deny or seek to minimise; (b) drug and alcohol use by both parents although denied by them; (c) concerns regarding the family finances and the ability of the parents to budget; (d) the number of house moves by the parents due to problems with neighbours and the impact of this upon the children; (e) the apparent failure of the parents to meet health needs of the children, including the question of H’s epilepsy and BM and C’s speech therapy; (f) H’s poor record of school attendance leading to a widening gap between her achievements and those of her peers.  (h) reports by H that she is unhappy at home and not loved, H has spoken of daddy (DM) hitting mummy (KP) and also of mummy (KP) hitting H.  (i) C is reported to show aggressive behaviour such as kicking, head butting and pushing members of his staff at his nursery.  (j) the parents have little ability to set coherent boundaries for the children resulting in chaotic play and presentation.  The method of engagement employed by the parents is to shout at the children.  (k) an absence of simulation within the home with D being reported to present as blank and withdrawn.  (l) the lack of engagement by the father (DM) with professionals and his unwillingness to co-operate and take responsibility for the situation at home and the way in which the family presents.  (m) the mother (KP) claimed that she has lied to professionals about her relationship with the father (DM) particularly insofar as it relates to domestic violence and that this has caused her depression.  (n) the ongoing concern in relation to mother’s (KP) cognitive ability and the extent to which this impacts upon her parenting of the children and the extent to which the father (DM) acknowledges this and assists her in the parenting of their children.  (o) the parents failure to attend the Webster Stratton parenting course in January 2012.  (p) the perception of professionals that the father blames and belittles the mother rather than working as a team and jointly accepting responsibility for the situation.  
4.			This ultimately led to the proceedings being commenced and the orders being made in relation to the other children.  The difficulty in relation to BM is that whilst the other children are in family placements as a result of the proceedings commenced in March 2012, BM is not.  BM was from the 10th of April 2012, placed in foster care and thereafter moved with C and D to the maternal grandparents who remain parties in the proceedings, they became special guardians for C and D in February 2014.  However, the placement of BM with them broke down in the summer of 2013 and she was moved out of their care and was placed with a foster carer.  By all accounts this foster carer is doing a very good job.  Indeed it appears the hope was that the foster carer could become a long term foster carer for BM.  
		PROGRESS OF PROCEEDINGS  
5.			The first substantive court involvement was the judgment of Recorder Lee QC on 10th April 2012, when the interim care orders were made in relation to BM, C and D and an interim supervision order in respect of H.  On the 6th February 2013, His Honour Deputy Judge Bullimore heard the oral evidence of a consultant forensic psychologist, Doctor Parsons, who had assessed mother and father and the recitals to the order of the 8  February 2014 made clear that the parents accepted that BM, C and D could not be returned to their care and an acceptance that the children would live with their maternal grandparents L and SG.  It was also agreed and supported by the guardian that there would be a further assessment to decide whether or not the children should continue to live with S and LG by way of special guardianship order.  H’s case was earlier dealt with and she went to live with family relations and that placement has turned out to be successful. 
6.	              The placement of the BM, C and D with the maternal grandparents was not without its difficulties and the local authority had to agree to an independent social work assessment to establish whether or not the maternal grandparents could care for the three other children and although this placement was ultimately supported by the independent social worker, in fact it was not until the 28th June 2013, that the three children moved to live with the maternal grandparents, L and SG, however, on 12th September 2013  BM’s placement with her grandparents broke down and she was placed with a new foster parent.   There is no doubt at all that BM as a result of the parenting that she has received, is a deeply troubled child with attachment difficulties.  
		ISSUES IN CASE
7.			The parents seek the return of BM to their care.  They maintain that their relationship in 2014 is vastly different to what it was when the proceedings commenced in 2012 and indeed they support this by the fact that there have been no police call outs since January 2014.  The maternal grandparents L and SG greatly regret that they cannot take on the care of BM but they are undoubtedly doing well caring for C and D and there is no complaint about their care of those children.  The local authority seeks a placement order in respect of BM.  The guardian considers that BM should remain in long term foster care and that position is supported by the parents if they cannot have her returned to their care and also by the maternal grandparents.
8.			Regrettably this case has been the subject of delay.  The delay cannot have benefited BM and indeed it could be said that there has been a lack of coherent planning.  There is no doubt that the current foster carer with whom BM has been living since the 25th September 2013, has been able to address BM’s difficulties and ameliorate her situation.  For a time it appeared as if that foster carer was willing to take on the long term care of BM but sadly that all changed in the days leading up to the hearing which commenced on the 19th May 2014.  The sad fact now is that the foster carer seems unable to care for BM although she expresses affection for this little girl and a willingness to remain her foster carer whilst a long term placement is sought for BM.  
		EVIDENCE IN THESE PROCEEDINGS
9.			The evidence is voluminous, not least because it deals with the other children.  Necessarily the Court has had to have full knowledge of all the papers in the case and it is unfortunate that there has been no real judicial continuity in the case.  The bundles stretch to some five lever arch files and set out in detail the history of neglect that all the children in this family have suffered from the birth of the eldest child, L, until the removal of the younger children in 2012.  The history spans some ten years.  In the context of these present proceedings the parents were looked at by a consultant forensic psychologist, Doctor Parsons, in April of 2012 on the receipt by him of the letter of instruction and his  full report is dated June 2012 and in due course he gave evidence during the currency of the proceedings involving the other children.  There was a medical legal report by Doctor Chetcuti and importantly a psychological report on BM by Doctor A. Pilkington dated 26 July 2012 which was updated on the 26th March 2014.  The Court bundles included numerous police call outs and drug and alcohol records and the testings’ that had been undertaken by the parents during the course of these lengthy proceedings.  Late on during the course of this hearing the local authority filed documents from Sue Carroll regarding the availability of adoptive placements and from and Michael Richardson dealing with adoptive placements and the theoretical advantages of adoption over long term fostering.
		THE LAW
10.			The local authority seeks a care and placement order and there has been clarification of the law in the recent past.  Relied upon by the parties are the cases of Re. B (A child) Care Proceedings Threshold Criteria 2013 UKSC 33.  Re. V (Children) 2013 EWCA CIV 9913 and Re. BS (Children) 2013 EWCA CIV 1146. Re V is fact specific. Suffice it to say that I have to be satisfied that nothing less than a placement order will do and to look at the whole issue in a holistic way.  Overwhelmingly, I have to be satisfied that under the welfare checklist of Section 1 of the Adoption and Children Act 2002 that the paramount consideration is BM’s welfare throughout her life and have regard, particularly to BM’s particular needs; the likely effect on having ceased to be a member of her original family and become an adopted person; any harm that BM has suffered and is it at risk of suffering in the future; and making an order is better for BM than not doing so.  I have at the forefront of my consideration that the parents are adamantly opposed to the making of a placement order, or indeed a care order, and that in their opposition to a placement order they are supported by the guardian and also by the independent reviewing officer who considered, that in her opinion, it was not appropriate for an adoptive placement to be sought and it was her view as well that BM was unlikely to manage such a move.
 
		ORAL EVIDENCE HEARD IN THE CASE 
		DOCTOR PILKINGTON  
11.			Doctor Pilkington was first involved in this case in 2012 and she reported again in March 2014.  She, therefore, had a wide window during the course of BM’s life to look at this little girl and to form a clear view of what was best for her.  Both in her reports and in her evidence she analysed the difference between adoption and foster care.  BM has an ambivalent and insecure attachment and she is someone who requires better than good enough care and overwhelmingly have a clear identified placement that will be secure and stable throughout her life.  She needs her future to be settled in terms of a permanent placement of high quality and one that allows and permits her contact with her family.  It is agreed by Doctor Pilkington that the placement with her current foster carer provided BM with this, and that BM after a period of uncertainty both with her parents, her first foster carer, and her grandparents, was  in a sustaining, meaningful and proper relationship with her current foster carer, that was meeting all her needs.  It was acknowledged by Doctor Pilkington that contact with her birth family was important and that this little girl wrote letters and demanded and wished to maintain contact with her birth parents and also with her siblings.  The evidence of Doctor Pilkington was compelling and straightforward, that with the history of chaos that BM had had in her past life, she needed a very high level of care, with attachment being built upon and that there should be consistency and predictability and the ability of her carer to form a long and enduring relationship with her.  Any  move should be a final move otherwise the outlook for this little girl is bleak.  I accept the evidence that was given by Doctor Pilkington.		
              THE PARENTS – FATHER - DM
12.			The father had filed eight statements in all and he came across as someone who plainly loved his children and he wanted now to do the best that he could.  There was scant acknowledgement of past failings and indeed father, DM, attempted to blame BM’s difficulties for the moves since her removal into care in April 2012.  This situation could not be maintained because it is quite clear that the chaotic upbringing she had whilst in the care of her parents is the cause of her present problems.  DM had to admit drug use, poor attendance of his children  at school, excessive drinking and a failure to attend courses to assist him in becoming a better parent.  All the papers and all the assessments of the professionals, which I accept, show that he is ill-equipped to look after a child who is severely attachment disordered.  I reject any possibility that he could care, either by himself or jointly with KP, for BM.
		MOTHER - KP
13.			I heard from mother and she acknowledged that she has difficulties and that she relies heavily on DM to manage the house and help her look after herself.  I accept she has made changes to her life and that she may not have drunk since January of 2014, and now enjoys social time with DM, it is acknowledged by all that she has consistently attended contact to her children.  This case is not about whether or not the parents love BM, it is whether or not they are capable of caring for her following the upbringing that she received whilst she was in their care.  Sadly, I have concluded that neither as a couple or individually either KP or DM could look after BM.  Both KP and DM insisted that they would make applications throughout BM’s childhood if she remained in long term foster care but given that they have accepted the placement of H, C and D I consider that they would be amenable to doing the best now for their children as they have for H, C and D and therefore I discount that as a reason for suggesting that adoption may be better than long term foster care.
		JOANNE MACINTYRE
14.			She has been BM’s social worker since March 2012.  BM should have been properly and fully supported in her present foster placement.  All the evidence would tend to suggest that as early as October 2013, barely a month after BM was placed with her foster carer that Barnsley MBC were looking for adoption, notwithstanding the difficulties that they knew BM had, not only from the report of Doctor Pilkington in 2012, but also the fact that her placement with her maternal grandparents broke down.  It is quite apparent, albeit with the benefit of hindsight, that BM could and should have been sustained in her placement with her foster parent.  I fully support the independent reviewing officer’s opinion on this placement.  The likelihood of finding a suitable adoptive placement for a child now aged five years eight months with an attachment disorder is very unlikely.  The consortium shows there are 19 families, none of which have been  assessed as to whether they want a child both of this age with attachment difficulties, to whom her family is extremely important and what in essence would need to be an open placement.  I was singly unimpressed with the way in which this little girl had been dealt with, particularly as all the evidence now points to long term foster care being the only realistic option for her.  I have no doubt at all that Miss MacIntyre is a dedicated and hardworking professional but BM’s present foster placement should have been supported as being the best option at this stage for BM.  
		THE GUARDIAN
15.			The guardian was placed in an impossible position.  She had come into the case late as a result of the long term sickness of the earlier guardian.  I am satisfied that Ms Haggart had a full and complete knowledge of the papers and that she had addressed the future of BM assiduously.  She was, however, misled.  She was led to believe that the present foster carer was going to be a long term foster parent, so when her final report came in, it was premised on the basis that BM could stay in the long term with her foster carer who had expressed a desire to care for her long term.  It was only as a result of documentation coming through a few days before the hearing that the Social Worker informed the Court by way of a position statement that the situation had altered and the foster carer no longer wished to offer full time long term care.
16.	        That resulted in the agency decision maker deciding on 14 May 2014 that there should be a decision made that BM should be placed for adoption.  This was notwithstanding the opposition of the independent reviewing officer.  The decision making process was not available until 20 May 2014. The papers for the placement order were only received by the court on 19 May 2014. The LAC reviews of 1 April and May 2014 were only typed up on 19 May 2104 and thus made available to the Court on 20 May 2014.
17.	          Due to the change in Foster parent’s position which also had only been communicated by a telephone with the social worker miss McIntyre  I asked, and the Guardian agreed that she visit the foster parent herself to both clarify the situation and update her report. This she did and it resulted in her updated report of 21 May 2014, in which the Guardian could not support the court making a placement order, as she confirmed also in oral evidence. The change in the foster parent’s position is very detrimental for the well-being of BM. I have formed a clear view that had the Foster parent been properly supported, and her position as a long-term foster parent been promoted, the decision-making for BM would be more straightforward particularly as all the professionals, as indeed have I, excluded the parents as long-term carers.
18.	         Although it is a finely balanced decision, I am in complete agreement with the Guardian that the duty of the local authority is first to try and re-engage the foster carer, and importantly communicate to her the very good job that she has done with BM since she has looked after her, and to reassure the Foster carer that she will not be penalised as a result of this court’s findings. Given that the independent reviewing Officer would request that the Foster parent reconsider her decision, as also would the Guardian, I hope that that will be taken up by the local authority with the foster parent.
19.	        I also agree with the Guardian that should the local authority as part of its planning process identify someone who would prefer to adopt, that is the proper time to consider any placement application but to twin track now is not an approach that should be adopted as it would add delay for a child who has suffered substantial delay in these proceedings which have been ongoing for over two years.
     CONCLUSION
20.	   I am satisfied on the evidence that BM cannot be returned to the care of her parents, they simply do not have the skills to parent her to the standard that she now requires. Her overwhelming need is for security, stability and permanence. If she were to remain in the long term Foster placement with her present Foster care that would be the best outcome for BM and I urge that the local authority revisit this, and reassure the foster parent that regardless of her decision she will be used by Barnsley MBC in the future. I am quite satisfied that the placement application is flawed and it does not pass that the ‘Re B-S test’. The fact that neither the Guardian nor the independent reviewing officer thought it was appropriate means that I have little hesitation in dismissing the placement application.
21.	      I consider the only outcome for BM is long-term fostering, preferably with her present Foster carer, but if not, that the local authority urgently seek a suitable placement in line with the reports and oral evidence of Dr Pilkington.
22.	       To the parents I regret I cannot place her daughter with them, but long-term fostering will leave open contact, not only with them but also with BM’s siblings. I hope they will not carry out their threat to disrupt any placement, as that would only continue the harm their daughter had suffered. In respect of BM I make a care order. I adopt the threshold.
23.	      I direct that a copy of this judgment be released to BM’s Foster carer, subject to  argument should any party object, which I will hear on 4 June 2014 when I hand down this judgment,.