Neutral Citation Number: [2010] EWMC 74 (FPC)

In the Magistrates’ Court
Family Proceedings Court

Before:

Lay Magistrates

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Between:

	X Local Authority	Applicant	
	and		
	Ms S	1st Respondent	
	Mr F	2nd Respondent	
	J(a child through his Children’s Guardian)	3rd Respondent	

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Ms C	for the	 Applicant	
     Ms L	for the	1st Respondent	
Mr D of Counsel	for the	2nd Respondent	
Ms R	for the	3rd Respondent	

Hearing dates: 21 – 22 September 2010

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WRITTEN REASONS

The written reasons are being distributed on the strict understanding that in any report, no person may be identified by name or location (Other than a person identified by name in the reasons themselves) and that in particular the anonymity of the children and the adult members of their family must be strictly preserved

Justices’ Reasons

		
1.	We are considering an application by X Council for a Care Order and a Placement Order in respect of a child J who is 12 months old.  J’s mother is Ms S and his father is Mr F.  The parents are not married; Mr F does not have parental responsibility for J but was made a party to these proceedings on the 17.12.09.     J is the first child of Mr F but he is the third child of Ms S.  J’s half-siblings are Harry S who is 7 years old and C who is almost 4 years old.  H and C reside with their maternal grandparents under Special Guardianship Orders that were made on the 10.12.07 by X County Court.  	
2.	The Local Authority is represented by Ms C and also present is the Social Worker Ms I.  The Local Authority care plan is for J to be provided with a stable and permanent placement but following a number of negative assessments this placement will be outside his birth family.  J was approved by the Adoption Panel as suitable for adoption on the 13.8.10.  If the orders sought are made then the Local Authority proposals in respect of contact between J and his parents are set out in its care plan filed at CP4-12 of the court bundle.  The Local Authority is aware that the father’s position is to ask the court to adjourn the final hearing in respect of J and make a further interim care order to allow for a period of assessment of him.   The Local Authority would oppose any adjournment of this final hearing.  	
3.	The mother, S, has attended court and is represented by solicitor Ms L.  S has filed an initial response to the care plan dated 14.7.10 which can be found at pages CP13 – CP14 this position has been expanded upon in a recent position statement dated 20.9.10 which can be found at pages 15 – 17 of the court bundle.  Ms L also confirms that the mother has now agreed the threshold document.   The mother’s position essentially is that in an ideal world she would wish to care for her son J but reluctantly accepts that this is not possible at the present time.  S is not putting herself forward as a carer for J  reluctantly accepting the evidence before the court in relation to her, namely that contained in the pre-birth assessment (C1 – C27) and the report of the Consultant Forensic Psychiatrist (C38 – C48) and therefore she does not actively oppose the Local Authority’s care plan.  S however does not consent to the placement application she is supporting the father in his application for J to be placed with him or within his paternal family as opposed to J being placed for adoption.  S supports father’s position believing that it would be in J’s best interests for him to be brought up within his birth family rather than being placed for adoption.  It is submitted on behalf of S that if J were placed with his father then it would be possible for him to maintain direct contact with her, which would be beneficial for J.  Ms L on behalf of the mother agrees with the submissions made on behalf of the father and would urge that any delay that would be caused by a further period of assessment would be purposeful delay and not detrimental to J.  If the court rejects the father’s application and grants the Local Authority’s applications S does not seek to challenge the proposed arrangements for contact set out in the care plan.	
4.	The father F has attended court and is represented by Mr D of counsel.  The father opposes the Local Authority’s applications.  F feels that he should be given an opportunity when he is released from prison on the 20.10.10 to demonstrate that he can care for J.  It is F’s position that he is in a stable relationship with his current partner which is a very stable, supportive and loving relationship.  It is submitted on behalf of F that the necessary delay that a further period of assessment would require need not be a lengthy period and that the benefits to J of being brought up within his birth family would outweigh any detriment to him caused by further delay.  F has indicated his willingness to co-operate fully with any assessments that Social Care felt were necessary.  F is seeking an opportunity to undertake either a residential assessment with his son or an assessment within the community.  If the court rejects his application and proceeds to make the orders sought by the Local Authority then F asks the court to consider allowing him to have a further direct contact with his son.  This contact would be for the purpose of taking photographs of them together for the purpose of the life story book.  These photographs could not be taken while F remains in prison due to prison regulations and would need to be arranged once he had been released.	
5.	J is represented through his Children’s Guardian Mrs SD whose legal representative is Ms R.  The Guardian supports the Local Authority’s applications, and agrees with the care plan for J.  The Guardian opposes any application to adjourn the final hearing and any further delay in this case.	
6.	We have read all the documents filed in this case including those filed at court during this hearing and not part of the paginated court bundle.  We have listened carefully to the parties’ submissions.  	
7.	We have heard evidence from an Independent Social Worker, the Social Worker, the Father and the Children’s Guardian.	
8.	We were informed that an amended schedule of findings sought has been prepared by the Local Authority.  The findings contained within this document relate solely to the first respondent mother and she now accepts all the findings sought in this amended document.  A copy of this document has been signed by S and is annexed to these reasons (see paragraph 47).  Having considered the evidence contained within the documents filed in this case we are satisfied that the evidence before us substantiates the findings sought.  Accordingly we are satisfied that the threshold criteria are met and make the specific findings sought in the agreed amended schedule annexed hereto (see paragraph 47).  We are therefore satisfied to the required standard that J is likely to suffer significant harm and that the likelihood of harm is attributable to the care which would be given to him not being what it would be reasonable to expect a parent to give a child.	
9.	The history of Social Care’s involvement with the family and their concerns are fully set out in the documents filed in this case.  The concerns in December 2007 which led to the Special Guardianship Orders being made were around S’s drug use, offending behaviour, mental health difficulties and severe mood swings.  When S was pregnant the Local Authority undertook a pre-birth assessment which can be found at C1-C27 of the court bundle.  This assessment concluded that the mother had been unable to make changes in her lifestyle.   She had been unable to rectify the parenting issues highlighted in her early parenting of H when given a second chance with C therefore the assessor could not envisage an adequate level of parenting in respect of the unborn child and therefore the recommendation was that the unborn child would not be safe if left in the care of its mother.  When ready to be discharged from hospital J was placed with foster carers with the consent of his mother.  On the 14.9.09 he was moved to his current foster carers.  On the 21.9.09 the court granted an Interim Care Order for J and he has remained with the same foster carers since the 14.9.09.   An assessment of S was undertaken during these proceedings by the Consultant Forensic Psychiatrist (C38-48).  Both the pre-birth assessment and the psychiatric assessment raised concerns that S is still unable to prioritize J’s needs over her own lifestyle choices in particular her offending behaviour and violent altercations.	
10.	Initially it was hoped that the maternal grandparents, S’s adoptive parents would be able to offer J a home with his half-siblings.  They withdrew their offer because they felt that they had to concentrate on caring for H and C.	
11.	Other family members have been put forward as prospective carers for J and viability assessment of them have been undertaken of them.  	
12.	The paternal grandmother and uncle (grandmother is now deceased) (C55- C68).  This assessment concluded on the 22.2.10 and did not recommend them as suitable family network carers for J.	
13.	The paternal grandfather and his partner (C69-C79).  This assessment was concluded on the 23.3.10 and did not recommend them as suitable family network carers for J.	
14.	There was a viability assessment report of the father and his partner Ms H (C80-C86).  This was completed on the 20.5.10.  This assessment was undertaken by the Social Worker in the case but was a negative assessment.  The court then granted leave for F to instruct an independent social worker to undertake a parenting and risk assessment which can be found at (C87 – C104).  This assessment was completed on the 17.5.10 and did not recommend that F be considered as a suitable person to care for J.	
15.	The paternal grandfather’s cousin and partner were suggested as possible carers for J.  The social worker asked a Social Work Advanced Practitioner to contact the couple.  We have a statement from her detailing a telephone conversation with both of them at page B7-8 of the bundle dated 16.9.10.  As a result of this conversation her decision was not to recommend this couple as suitable even for a viability assessment.	
16.	Having considered the parties’ positions in this case, listened to the evidence and submissions much was made to us about levels and type of domestic violence.  Whether events had been fabricated and by whom and also levels of criminal offending.  The Social Worker confirmed that the concerns they have in respect of F surround his criminal offending and the domestic violence call outs.  The father accepted that there had been verbal altercations but denied any physical violence.  Also challenged in the evidence was whether or not F would re-offend when released from prison.  He was adamant that he had changed and would not re-offend whereas the professionals’ evidence is that the best indicator for the future is what has happened in the past. In our judgment these issues whilst relevant are not crucial to our decision.  In our opinion the crucial issue for us to determine in this case is can J wait a further period of time (up to two years) before being placed with a permanent family.	
17.	In reaching our decision we have considered as we must all relevant welfare criteria as is required of us by the Children Act 1989.  We remind ourselves that we should only make an order if J’s welfare requires it.  We also remind ourselves that it is J’s welfare that must be our paramount concern.	
18.	We heard live evidence from the Independent social worker who confirmed his report at C87-C104.  He was called with the agreement of the parties by the Children’s Guardian and cross-examined by other parties.  The Independent Social Worker confirmed that he had had an opportunity to read the documents that had been filed after he had completed his report and in particular the statement and letter from F.  He went on to confirm that his recommendation remained the same.  It was his evidence to us that F’s assertions of change at this stage were speculative.  He would expect that a lengthy period of assessment in the community would be required even before a residential assessment could be considered.  It was the Independent Social Worker’s opinion that this lengthy period in the community would be needed before J could be reintroduced into F’s life and then this would necessitate an even longer period of further assessment.  He was cross-examined by Mr D on behalf of the father but maintained his recommendation that he was focused primarily on the needs of J.  He was certain that the timescales suggested by the father for a period of further assessment were not compatible with J’s interests.  In his opinion J who is 1 year old is already passed the optimum age when a child can successfully form new attachments without difficulties and he needs to move to his new family without delay.  He accepted that F appears to want to change and has significant support from his current partner and family.  However he could not reconcile this with the contrary indicators from the past.  He also confirmed that he shared other professionals concerns about F’s ability to work with professionals in addressing any difficult areas.	
19.	We found the Independent Social Worker an excellent witness.  We believe he has done a thorough assessment and he did not change his opinion under cross-examination.	
20.	We next heard from the Social Worker Ms I.  Ms I confirmed that she was the author of the care plan CP 4 – 12, the viability assessment and the documents filed in support of the placement application in section AA of the bundle.  She confirmed that the contents of the documents were correct to the best of her knowledge and belief.  Ms I told us that she had last seen J on the 15.9.10.  She told us that J is thriving, meeting all his developmental milestones and is in good routines regarding feeding and bedtime.  He is clearly attached to his foster carers who are meeting his needs.  She confirmed that it was the criminal history of F and the numerous allegations of domestic violence that were of concern to the Local Authority.  She told us that the Local Authority’s care plan had been informed by the recommendations of the Independent Social Worker, the pre-birth assessment and the assessment by the Consultant Forensic Psychiatrist.  It is her evidence that J needs a permanent placement as soon as possible as delay may cause difficulty for J bonding with his new carers.  In her opinion any assessment of F in the community would need to be for a significant period of time before a decision could be made about whether it would be safe to place J with F.  In her evidence the timescales for this are not acceptable for J who needs permanency and stability.    The adoption panel manager has confirmed to the social worker that there is unlikely to be any difficulties in identifying a suitable match for J very quickly.  	
21.	When cross-examined on behalf of F the social worker accepted that there could well be alternative explanations for the domestic violence call outs but her prime concern was J’s welfare.  Ms I accepted that her interview with F was limited in time however she also agrees with the recommendation and findings of the Independent Social Worker and Children’s Guardian who have separately looked at F’s personal circumstances.	
22.	The Social Worker agreed that F’s partner had been very supportive of him whilst in prison but she felt that their relationship had been of short duration before he went to prison and there were also concerns raised over her parenting of her own children.	
23.	Ms I arranged to take J to visit F in prison; this took place earlier this month and was the first time J had met his father.  The Local Authority had hoped to take photographs of F with J for his life story book but due to prison regulations this was not possible.  Whilst not ruling out a further direct contact for F in the community the social worker was concerned as to how this could be organized to ensure J’s safety.	
24.	The Social Worker agreed with the Independent Social Worker and the Children’s Guardian  that because of F’s history, the uncertain nature of his future and his difficulty in engaging with professionals it was impossible to predict whether any assessment would be successful and J’s future should not be gambled with	
25.	Ms I’s evidence supported the findings of the Independent Social Worker.  The Social worker was appropriately focused on J and has appropriately explored other possible family carers.  That was the end of the Local Authority’s evidence.	
26.	The mother chose not to give evidence.	
27.	Mr F confirmed that his statement was true.  The Social Worker raised two main objections to his care of J: 
1 his criminal history
2 his alleged domestic violence
F agreed there had been lots of arguments, he had defended himself from S, there was lots of name calling and S had harassed him and his family.  He felt he had no problems with both of the mother’s parents and had only met them 4-5 times although he accepted that there had been some difficulties particularly with her father.  F said he was only trying to reconcile with S when the Non-Molestation order was made.	
28.	F told us that he had already changed; having a son was the most important thing in his life.  F felt that something had been missing but when he was released from prison his only focus would be J.  F told us how the mother’s record after being adopted was not good and he did not want J to have the same experiences.  He wanted to raise J with his current partner who was a very stable influence and he wanted J to be raised how he was as a small boy.  F wanted to meet his son’s emotional needs by being there for him 100% so that J would know where he belonged.  F told us that he would be willing to work with social services and that he had already tried to go on a parenting course but one was not available to him.  F said that he had already proved that he can change and that S was a bad influence but his current partner was a very positive influence in his life.  F told us that he was willing to do anything rather than have J adopted.  When cross-examined about the length of time J would have to wait for him to prove he had changed F did not accept that this would need to be a lengthy period.  He accepted that there would have to be a period of time in which he would show his commitment to change but he believed that this would not be a significant period.   F accepted that he could be recalled to prison at any time during his license period but he was adamant that he had changed and would not commit any further offences because he wanted to be there for J.	
29.	What is apparent from F’s evidence is that he blames himself for not being there for J.  In his evidence he is clearly thinking about his son and he believes he is doing what is best for him in seeking to have him placed within the birth family.  He has a negative view of adoption and doesn’t want to put his son in that position.  He has seen his son on one occasion and explained to us how that made him feel.  He was adamant that having a son and supportive partner means he will maintain a change in his lifestyle.  He tried to understand the professionals concerns and positions in respect of the timescales but couldn’t reconcile these with his own wishes to have J in his care.	
30.	We next heard from the Children’s Guardian, Mrs SD.  The Guardian agreed that she was the author of reports dated 24.2.10 C49-C54, the 14.7.10 C105-C113 and the 9.9.10 AA34-AA41.  The Guardian told us that she had been allocated to this case in November 2009; she confirmed that she had read the additional statements filed and listened to the evidence at court and her recommendation remained the same.  She acknowledged that credit should be given to the mother for reaching the brave decision that she could not care for J.  The Guardian told us that she had a 2 hour meeting with F in prison to discuss the assessments with him.  She also confirmed that she had recently met with his partner.	
31.	The Guardian’s evidence to us is that time is moving on for J.  She agreed wholeheartedly with the Independent Social Worker that any further delay would be detrimental to J.  The Guardian agreed with the Independent Social Worker that the best indicator of the future is what has happened in the past and that F was untried and untested.  During the last six years in his life he has spent almost 50% of his time in prison.  To get a real understanding of the amount of change in F there would have to be a period of at least two years of living in the community to see changes in lifestyle and offending behaviour.  The Guardian believed that there had already been delay in this case in order to assess a number of family members and any further delay would not be in J’s best interests.  The Guardian accepted that F felt he was now in a stable and supportive relationship with his current partner.  She had concerns however that given the turbulent history between the mother and the father if J were to be placed with his father they would not be able to promote a positive image of his mother for J.	
32.	It is the Guardian’s evidence to us that J needs stability and permanency as soon as possible he has waited more than long enough.  The Guardian does not accept that there is a need for a further face to face contact between J and his father.  Such a contact would not be in J’s interest and would be for F’s benefit.  The Guardian accepts that it is important for any child to know who their birth parents are and therefore photographs and letter from both the paternal and maternal family will be vitally important for J’s life story. 	
33.	Having interviewed F the Guardian agreed with the other professionals that he was a bright young man who had been brought up to be defensive but that she felt he was unpredictable and she was concerned about his ability to work with professionals in difficult and challenging circumstances.	
34.	The Guardian’s evidence was very measured.  She had completed her own full investigation and as an experienced professional her evidence was clear and concise.  Mrs SD whilst acknowledging the possible positives of both parents was certain in her recommendation.	
35.	Because of J’s age he is too young to express his wishes and feelings other than to need the normal care of any child his age.	
36.	His physical, emotional and educational needs have been met since birth by foster carers and in the future will be met by a long term placement.	
37.	S has accepted her own limitations and is not putting herself forward as a carer.  The professional acknowledge how difficult a decision this must have been for her.  We agree with the professionals and commend her for putting J’s needs first.  We understand her desire to have J cared for within the birth family if at all possible in order that she could maintain direct contact with her son.  It is therefore understandable that she supports F’s position.	
38.	F is untried and untested as a carer for a child.  J is his only child and because of his lifestyle choices he has only met J on the one occasion during the visit to prison.  Any ability that F has to parent a child will need to be assessed over a considerable period time.  We agree with the professionals’ opinion in this regard that the period will be months and possible years not weeks and possibly months.	
39.	Whatever decision we make there will be a change in J’s circumstances.  We need to make sure that his next move is the permanent one.	
40.	We are satisfied that we have sufficient information before us to make a final decision and that any delay will be detrimental for J.  We agree with the evidence of the independent social worker, the social worker and Children’s Guardian in this regard.	
41.	We are satisfied that the Local Authority have explored every possible extended family member within a reasonable timescale in an attempt to place J within the family.	
42.	We do not accept that the right course is to allow a further adjournment we do not find that this would be purposeful delay.  We agree with the submission of the Local authority and the Children’s Guardian that J can’t wait.  J needs permanency now further delay without the certainty of success would be detrimental to this little boy.	
43.	Accordingly we are satisfied that it is appropriate to make a final Care Order to Leeds City Council in respect of J and do so.	
44.	We must now consider the placement application.  As J is only one year old he requires a permanent stable and loving home where all his needs can be met throughout his childhood and into adolescence.  In our judgment this can only be achieved through adoption.  J has already been considered by the council’s adoption panel as suitable for adoption and the council has informed us that there are a number of potential families with whom he could be matched. J has already formed attachments to his current foster carers but it is believed that these can be transferred to his new carers.  However, the sooner this change of placement occurs the easier it will be for him to begin to form new attachments.  We have been told by the Independent Social Worker that J has already passed the optimum age when this can be achieved without difficulties and therefore any further delay will be significant.  S does not consent to the placement order being made and we can only proceed to make such an order if we dispense with her consent, which we are asked to do on the grounds that J’s welfare requires the parental agreement be dispensed with.  F does not have parental responsibility but in view of the submission made and evidence received in this case we have considered him in the same way as S.  He wants to care for his son and would therefore want to apply for an order that would allow him to do this.  The test for dispensing with a parents’ consent of course mirrors the test which we must apply in considering the application generally namely that the paramount consideration must be J’s welfare throughout his life.
	
45.	For the reasons we have already given and applying the welfare checklist set out in the Adoption and Children Act 2002 we are satisfied that J’s welfare dictates that a placement order should be made so as to safeguard his future care and that for the same reasons the consent of  S should be dispensed with.  We have dealt with the father’s position in detail in this judgment and why we find that J can not be placed with him under any order that would safeguard his welfare.  Essentially we accept that he is well motivated in his application.  We however are satisfied that it must fail because it is too late for J.  For the avoidance of any doubt, had F had parental responsibility, our conclusion would have been the same and we would have also dispensed with his consent for the same reasons.  In arriving at this decision we are aware that J will not be brought up in his birth family and will have only limited contact with them through the Council’s letter-box scheme but we are satisfied that these arrangements are the best that can be made in the circumstances and will help meet J’s needs for information about his biological family as he grows older.   We therefore dispense with the consent of S and F and make a Placement Order in favour of Leeds City Council in respect of J.  In doing so we approve the care plan.    	
46.	The issue of contact has been raised during the course of this hearing.  We are satisfied on the evidence of all the professionals that the proposals within the care plan are appropriate to meet J’s needs.  We therefore make no order in respect of contact.	
47.	The Local Authority submits that the threshold as set out in Section 31(2) of the Children Act 1989 are met in respect of J and that he is likely to suffer significant harm and that the likelihood of harm is attributable to the care which would be given to him not being what it would be reasonable to expect a parent to give a child, the particular findings sought being:-
a)	That the mother’s children, H and C were made the subjects of a Special Guardianship Order to their maternal grandmother on the 10.12.07 as at the time the mother’s mental health was impaired, her life was chaotic and there were issues of domestic violence, drug consumption and offending behaviour.
b)	That the mother has had relationships which have been impaired by domestic violence.
c)	That domestic violence would put J at risk of physical and emotional harm.
d)	That the mother has on occasions been unable to protect herself from potentially dangerous situations, which have resulted, for example in the mother sustaining a black eye in June 2009 and an injury to her jaw in the summer of 2009.
e)	That the mother’s state of emotional health will impact negatively upon her ability to parent appropriately.
f)	That the mother’s chaotic and unstable lifestyle would provide an inappropriate environment for J.
g)	That the mother would be unable to consistently place J’s needs ahead of her own.
The Local Authority reserves the right to amend this document in the light of any further evidence being provided by the professionals involved with the family.	
	Hear before Lay Magistrates on the 21 – 22 September 2010.