Bristol City Council v NS (Mother) & Anor

This is an application for a care order under the Children Act 1989 and a placement order under the Adoption and Children Act 2002 in respect of a little girl called N, born 26^th August 2013 and, therefore, now aged 11 months.

The history of the case can be summarised shortly. N’s mother was born in Slovakia in 1994 so is just 20 years old. She was placed in care in her home country from about the age of 12 and thereafter lived in a children’s home. She has three siblings, two of whom are adults and a third who is a child in care in Slovakia. The family from which the mother comes has plainly suffered a variety of problems. According to information provided by the Slovakian authorities, the grandmother had a drink problem. The children were thereafter looked after by the grandfather, that is to say the mother’s father. The mother and her siblings were neglected in his care, hence their placement in alternative care.

It seems the mother came to this country in 2012 having previously worked for a time as a prostitute in Slovakia. She arrived in this country with no passport or any identification papers, or at least that was the position when she came to the attention of the police associating with a man from Slovakia who had criminal convictions. There is a strong suspicion that she has been trafficked into this country for the purposes of working as a prostitute, although there is no clarity exactly about what her circumstances have been. Certainly, she resumed working as a prostitute in this country advertising her services over the internet.

At the end of 2012 she became pregnant. The identity of the father of her child is unknown, so it is unclear whether he is a national of this country or from Slovakia or from a third country. The mother made little preparation for the birth of her baby. She did not register with any medical services. She first came to the attention of medical services when at 36 weeks’ pregnancy she attended hospital in Bristol. She said she wished to give up her baby. The hospital staff were concerned about her lifestyle, and possible drug use, as well as her apparent lack of any secure housing or any network of support. The hospital informed the local authority who carried out various assessments and concluded and recommended that the mother be placed in a mother and baby foster placement after the birth of the baby to assess her capacity to care for the child. The mother, however, refused this proposal.

On 26^th August she gave birth to the baby, N, in hospital. She immediately agreed that the baby should be accommodated under section 20 of the Children Act. Thereafter, upon discharge from hospital N was placed with foster carers with whom she has remained ever since. The mother was offered regular contact but her attendance was infrequent and, when she did attend, her ability to care for and respond to the baby was inconsistent. The local authority, therefore, made plans to start care proceedings. There was a pre-proceedings meeting held on 21^st November at which the mother confirmed that she had not got the facilities to care for the child. She described her own family situation in Slovakia as “not good”. She told those present at the meeting that she had informed her own family in Slovakia that the baby had been adopted. That was in fact the last occasion when the mother had any real dealings with this case. She has not had any contact with her daughter since November 2013.

On 16^th January 2014 the local authority filed its application for a care order. The matter came for a case management hearing before District Judge Exton on 30^th January. At that stage the district judge identified the key issues as being, first, jurisdiction, secondly whether the mother could care for N, thirdly whether mother was misusing drugs and, fourthly, whether there were any alternative carers within the family. The judge concluded that the courts of this country had jurisdiction either under Article 8 or Article 13 of Brussels II Revised. Furthermore, the judge recorded in the order that the court did not consider it appropriate to exercise its powers under Article 15 of that regulation. District Judge Exton directed the parties to compose a letter to the central authority for England and Wales to pass on to the Central Authority of Slovakia, inter alia, to obtain further information about the mother’s family. That direction was duly complied with and the Slovakian Central Authority replied on 6^th March, stating in effect that they had no further information to provide about the family because the details given by the English authorities had been inaccurate.

Problems with identifying or getting information about the family in Slovakia led the Guardian to apply for the transfer of the proceedings to this court. In addition, it was suggested by the Guardian that the question of a transfer under Article 15 should be reconsidered in the light of recent case law. On 7^th March Judge Wildblood, Q.C., the Designated Family Judge for Bristol, duly transferred the matter to the High Court and, in accordance with practice guidance then in place, the matter was listed before me to consider the question of a possible transfer under Article 15. Following the hearing before Judge Wildblood the local authority wrote to the Central Authority of Slovakia again seeking further information, in particular about the mother’s family and her circumstances. Once again, the Slovakian Central Authority replied by saying that the information given to them about the mother and her family was incomplete and that they were, therefore, unable to comply with the request.

After a further directions hearing the matter came before me to determine the question under Article 15 at a hearing on 6^th May. On that occasion I heard legal argument and duly delivered a judgment in which I concluded that the provisions of Article 15 did not apply so as to require this court to make any request to the courts of Slovakia in accordance with that Article. I concluded that the circumstances were such that this court was better placed to determine the issues in this case and that it would not be in the best interests of N to request the Slovakian courts to assume jurisdiction. I added, however, that the decisions about N’s future could be made only when all realistic options had been explored, including proper enquiries as to the circumstances of the maternal family in Slovakia and whether or not any members of that family would be able to take over the care of the child. I gave certain directions as to how that information should be obtained. I made directions in respect of a placement order application which the local authority had by that stage issued, and I listed the matter for an issues resolution hearing in July with a direction that the mother should attend and, in order to attempt to secure her attendance, I gave permission for the local authority to obtain a translation of the order and effect service of it on the mother via her Facebook account to be accompanied with a letter from the local authority outlining the orders to be sought at the end of these proceedings and the impact on the mother’s future contact with the child. I made that direction because, although the mother had solicitors acting for her who at that stage remained on the record, it was plain that they had for several months been without instructions, the mother having, as I have already said, effectively withdrawn from the proceedings.

Since that hearing in May there have been the following developments. First, there has been no response at all from the mother. Despite efforts to contact her via the Facebook account in accordance with my order, she has not responded. Her whereabouts are unknown. Efforts to trace her through a company with whom it was believed she may be employed have been unsuccessful. Her solicitors are without instructions. She has not seen her child for eight months. I am satisfied that all steps that could reasonably be taken to encourage her and facilitate her to engage with these proceedings have been attempted and failed.

Secondly, attempts have been made by the local authority via the Slovakian authorities to obtain further information concerning the maternal family and I note that after the initial difficulties some information has been obtained which assists the court in making a decision today.

The mother, as I have said, comes from a family with a great number of problems, including a history of drinking so far as the grandmother is concerned and neglect so far as the grandfather is concerned. The Slovakian authorities report that the maternal grandmother is in effect drifting from hostel to hostel in the country and her current place of abode is unknown. The grandfather is long term unemployed and is living in a hut in the country. The Slovakian authorities have described him as short tempered and aggressive and said that the conditions in which he lives are unsuitable for the care of N. The mother has two adult siblings, neither of whom has expressed any interest in caring for the child. One is, like his mother, moving from hostel to hostel and the other is still in a children’s home. The third sibling of the mother, her sister, is still in foster care. Reference was made in some papers to there being a godmother of the mother who might be capable of looking after the children. It seems from enquiries that the person concerned has no relationship with the mother but was in fact a tutor or employee at one of the children’s homes where the mother has lived.

Accordingly, I am satisfied that all efforts have been made to trace the family in Slovakia and to enquire whether any member of the family would be able to look after N. It is plain from those enquiries that no member of the family is in a position to offer a home for this little girl.

The first question I have to determine is whether or not the threshold criteria under section 31 of the Children Act 1989 for the making of public orders under Part IV are satisfied. In this case the child has effectively been abandoned by her mother. The lifestyle pursued by her mother as a prostitute, drifting from Slovakia to this country, is not one in which this child could safely be brought up. The mother has shown little, if any, interest in her daughter and I am satisfied that there is no doubt in this case that the threshold criteria under section 31 are satisfied – in other words that N was, at the time when proceedings were instituted in January 2014, at risk of suffering significant harm in the care of her mother by reason of the fact that the care which would be given to her by her mother would not be that which a reasonable parent would give.

I turn, therefore, to determine what order I should make. In making that decision, I apply section 1 of the Children Act and the checklist under section 1(3). The welfare of the child is my paramount consideration. I take into account the fact that children should wherever possible be brought up by their parents and, where that is not possible, careful consideration must be given first to whether or not they can be looked after by other members of their extended family. This is a facet of their rights to respect for family life under Article 8 of the European Human Rights Convention. I also bear in mind the important principle enunciated by the Supreme Court in the 2013 decision in Re B [2013] UKSC 33 that adoption is the last resort for a child and it is only when nothing else will do that the court can approve a course which will result in a child being adopted.

In considering what order to make I must look at all the realistic options for the child. before making a final decision, in accordance with the principles enunciated by the Court of Appeal in the series of cases in 2013 leading to the ultimate decision in Re B-S[2013] EWCA Civ 1146 In this case, the requisite analysis has been carefully carried out by the local authority and the Guardian.

I consider first the options of placing N with her mother. The advantage of such a course would be that she would remain with her family, with her mother, and that her need for an awareness of her heritage and background would be met. On the other hand, there are multiple disadvantages with such an option. N would be at very grave risk of neglect and emotional harm. She would be exposed to the company of inappropriate and unsafe adults as a result of her mother’s lifestyle. The mother has failed to cooperate or engage with these proceedings or with the local authority and it is unlikely that she would cooperate with any support that was offered to her were any attempt to be made to return N to her care. There is no evidence of the mother’s accommodation or whether she has the facilities to look after the baby.

The other family options can be dealt with swiftly. We do not know who N’s father is. So far as extended family members are concerned, I am satisfied, as explained above, that there are no viable options for N to be placed with her extended family in Slovakia. Such a course would of course enable her to remain within the family with an improved awareness of her cultural and family background, but plainly she would be at risk of neglect, abuse and ill treatment. There is no prospect, sadly for N, of a family placement.

So far as placements outside the family are concerned, the options are long term foster care and adoption. Long term foster care gives a degree of security to the child. It would, one hopes, enable the child to be placed in a home where she can be looked after for the rest of her childhood. All her needs would be met so far as physical and emotional needs are concerned. N would be able to maintain some form of contact with her mother in the event that she re-engages with the local authority. The disadvantages of long term foster care are well recognised. Unlike adoption, N would remain in care, and therefore subject to the intervention of the local authority. She would not have the same sense of security as she would benefit from in the event of being adopted. Foster care is a wonderful and important option for young children in many cases. Foster carers dedicate their lives to children. But I accept the generally-held view that foster care for all its strengths does not give the degree of security provided by adoption.

As for adoption, it has all the benefits of foster care, of ensuring that N will be well looked after in every sense and, in addition, it provides a degree of permanence and real security which foster care, for all its strengths, cannot provide. Of course a disadvantage for N of adoption is that she would be cut off in effect from her natural family. She would lose all ties save for limited indirect letterbox contact. This is a significant disadvantage but it is one which should be ameliorated to some extent if the adopters are encouraged and helped to ensure that N grows up with an awareness of her particular cultural background and Slovakian heritage.

This analysis put forward by the local authority leads them to a recommendation that N should be adopted. That analysis and recommendation are supported by the Guardian. I accept and adopt the local authority’s careful analysis supported by the Guardian and conclude that, applying the law as I have set it out above, N’s welfare requires that a Care order be made on the basis of a care plan for adoption.

I turn, therefore, to consider the placement order application under the 2002 Act. Here I apply section 1 of that Act and the similar, although not identical, checklist in section 1(4). I have carefully considered all the options as summarised above. I acknowledge the fact that adoption marks a permanent break for the natural family; that is its characteristic. The welfare checklist in section 1(4) requires me to have regard to the fact that adoption is a lifelong change for this child, a permanent change, and I have to have regard to her welfare throughout her life. I am satisfied that N needs the security of adoption and permanence and that, given her age, this is best provided by adoption as opposed to any other option. It is, however, important, as I have already said, that any family with whom N is placed should acknowledge and accommodate her Slovakian heritage and make sure that she is brought up with an understanding and appreciation of that heritage, and that will be assisted by letterbox contact with her mother if, as I hope happens, her mother re-engages with the local authority.

Under s.21(3) of the 2002 Act, a placement order can only be made where the court is satisfied that the parent has consented to the child being placed for adoption, or alternatively that the parent’s consent should be dispensed with. Under s.52(1), the court cannot dispense with consent unless satisfied that the parent cannot be found or lacks capacity to give consent, or alternatively that the welfare of the child requires the consent to be dispensed with. In this case, the mother has disengaged from the proceedings and attempts to find her have been unsuccessful. Further and alternatively, I am satisfied that N’s welfare requires me to dispense with the mother’s consent. For the reasons set out above, her welfare will best be met if she is placed for adoption.

I therefore make a placement order authorising the local authority to place N with any prospective adopters chosen by the authority.