Newcastle City Council v WM & Ors

At the heart of this dispute lies the future of three young children, aged 6, 4 and 3, whose young mother has learning disabilities, and is acknowledged by the Official Solicitor, her litigation friend, not to be in a position to care for any of them. They are all currently together in foster care, and the Local Authority seeks their permanent placement for adoption, albeit split as a sibling group and placed in two separate homes. The mother has a fourth child, born only within the last few weeks, who is the subject of separate public law proceedings.

The three children with whom I am concerned have different fathers; the father of the oldest child is unidentified, the father of the middle child has not seen her for many months and does not seek the return of his daughter, and the father of the youngest child was until recently in custody serving a prison term for sexual offences against his own step-daughter. The children are second generation of a family (on the maternal side) of asylum seekers from Somalia, and have lived in England a considerable distance from their extended family. The oldest child (aged 6) has a degree of developmental delay. The mother’s younger sister (maternal aunt to the children) seeks the full-time care of the oldest two, but not the youngest of the, children. The youngest child is mixed race. Those are just some of the factual complexities of the case.

The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.

I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.

Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.

Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance.

These proceedings concern three children, two girls, namely HY (d.o.b. 16.7.08) and HA (d.o.b. 21.09.10), respectively therefore aged 6 years 9 months and 4 years 7 months, and a boy (TY) (d.o.b. 5.4.12) aged just 3 years. Their mother is WM (hereafter “the mother”) is 27 years old; she has been assessed as lacking capacity and is therefore a protected party under rule 2.3 FPR 2010, appearing (since September 2014) by the Official Solicitor as her litigation friend. Each child has a different father; only HA’s father (AM) plays any part in the proceedings though he has played no meaningful part in the life of HA for the last 10 months. As indicated above, the children have one further half-sibling who was born two months ago, and who is the subject of parallel public law proceedings.

By applications dated 3 July 2014 Newcastle City Council (hereafter “the Local Authority”) seeks full care orders under Part IV of the Children Act 1989 (“the 1989 Act”) in relation to the three children; by application dated 21 January 2015 they further seek placement orders for the three children under Chapter 3 of the Adoption and Children Act 2002, on a plan to place HY and HA together for adoption, separately from TY. The applications for care and placement orders in respect of all three children are opposed by the mother. The application for a care order and for a placement order in respect of TY are not opposed by any other party.

During the course of proceedings, the maternal grandparents sought party status and assessment as potential carers. In circumstances which I shall describe below, they no longer seek to be carers for HY and HA, but have remained parties, and gave evidence before me. The mother’s younger sister, a maternal aunt to the children, SM, obtained party status on 22 October 2014, and seeks the full-time care of HY and HA; her application is now supported by the mother (this represents a change in the mother’s position, having initially opposed this application), and the maternal grandparents. The application receives broad (albeit not unqualified) support from the Independent Social Worker (Mrs Judith Fournel CQSW, DMS) and the Children’s Guardian. SM’s application is opposed by HA’s father and the Local Authority.

The Local Authority has issued an application dated 21 January 2015 for declaration of parentage (section 55A FLA 1986) in respect of HY, to correct the error on the face of her birth certificate naming AM as her father.

The mother is third of six children. Her family is originally from Somalia; they fled that country in 1998 by reason of the civil unrest there, and have had their home in England since then. The maternal family has permanent residence here: the maternal grandmother works as a cleaner and in a care home. The maternal grandparents speak virtually no English and follow a traditional Somali lifestyle and culture. One of the mother’s sisters is a nurse, and another attends university. The mother has one older brother (AbM) who is aged 28; he has a history of serious criminal offending, for offences involving drugs and serious violence. He was sentenced in 2009 to a 7-year term for offence of wounding inflicting grievous bodily harm. There is a younger, 13 year old, brother, still at school. The maternal grandparents, AbM and SM live in temporary accommodation in London.

The mother is 27 years old. She is, and has been for some time, socially isolated and extremely vulnerable. She was assessed in July 2008 (as part of an early parenting assessment with her then baby daughter HY) as functioning in the learning disability range with an IQ of 61. The accuracy of that assessment may be affected to some degree by the fact that it was conducted in the mother’s second language (English); she is said to have a complicated communication profile due to her educational, cultural and language learning background. Consistent with the required approach under the Mental Capacity Act 2005, more recent psychiatric evidence has considered separately the discrete issues arising for consideration in these proceedings, and points to the following:

During the mother’s childhood, she was educated in mainstream school notwithstanding her learning difficulties. She was rebellious, as indeed was SM. There are differing accounts of her parents’ attitude to her learning disability (which I examine a little further below). On two occasions, in 2002 and 2004, the mother went to Somalia to visit relatives. On the latter occasion, she ended up staying on her own there for about a year.

On her return from Somalia on the second occasion, the maternal family held discussions with members of the extended family in Qatar about an arranged marriage for the mother; the mother said that she did not want to be married, and the possible betrothal went no further. It is notable that the maternal grandparents did not contemplate arranging a marriage for any of their other children. AM understood from the mother that the maternal grandfather was forcing her to marry, and that she was being forced out of the house for defying her parents.

The mother left the family home when she was 20 years old (in April 2008), at the time she was pregnant with HY. She alleges that she was fleeing violence and abuse at the hands of her parents, which has been described as being ‘honour-based’ in origin (though see [36] below). By that time she had met AM, who facilitated her move to Newcastle (where he lived). HY was born three months after her arrival. AM’s name was recorded on HY’s birth certificate as HY’s father, though as the history indicates, and it is now confirmed (by DNA testing), he is not in fact HY’s father. The relationship between the mother and AM was said to be occasionally violent, and on at least one occasion it is agreed the police were called to the family home. The mother and AM married in October 2009 and divorced in 2012. HA had in the meantime been born into that relationship (September 2010).

I heard some evidence about an incident at the maternal family home on 10 April 2010 when the mother was visiting from Newcastle. There was an argument and the police were called. The incident concluded with the mother leaving and returning to Newcastle.

The mother’s relationship with AM came to an end in 2011/2012. Soon thereafter, the mother formed a relationship with JR. JR was at that time on licence following his release from prison where he was serving an 8-year sentence for offences of sexual activity with his 10 year old step-daughter; he has an extensive criminal record including convictions for sexual offences, offences of dishonesty and violence. The mother became pregnant by him, and in due course gave birth to TY. In early 2012, numerous social work referrals identified the mother as vulnerable and socially isolated. In October 2012, the police were called to a domestic abuse incident at the home, and there located JR; as a consequence of this, in November 2012, JR was recalled to prison for breaching his licence requirement by forming this relationship with the mother. Later that month, the children were all made the subject of a child protection plan. The mother was warned that JR was an unsuitable person to be around her two children. She ignored that warning, maintaining contact with him while he was in prison. In January 2013, a pre-proceedings letter was sent to the mother and AM; in February 2013, pre-proceedings meetings were held with the mother and AM. Both were legally represented.

In May 2013, the mother was assessed as increasingly unable to cope with the demands of the children. In June 2013, HY told her nursery worker that she did not want to go home as her mother had hurt HA, and had hit her. In July 2013, HA told her nursery staff that she did not want to go home to her mother; some days later she presented with physical signs consistent with sexual abuse, although medical examination revealed no abnormal findings. On 15 July 2013, the mother told a core group meeting that she had begun a new relationship with DR (following JR’s incarceration), and that she knew he had a historical sex offence. In fact, DR too was on licence following release from prison following his 6 year sentence for offence of rape of a 15 year old female, and had also been convicted of breach of a non-molestation order in relation to a previous partner. Given the high levels of concern about this relationship and the mother’s capacity to protect her children, she was asked to give her consent to accommodation of the children. She did so on 18 July 2013.

The mother told me that even now (April 2015) she continues to see DR; “he comes at 7 in the morning and checks on me and then he goes back home he does not stay overnight; he is not my boyfriend, we are just friends”. The current social worker (who I shall refer to as ‘SWD’)’s evidence is that the mother and DR “are involved with one another; he sees a need to be in a relationship in order to be able to stay with her; he has drug issues, which are ongoing; he does not see that as a long term relationship”

The children were initially placed with AM, but the placement lasted only a few days; he could not, on his own acknowledgement, cope and did not want to give up his work to care for the children. When the children were accommodated by the Local Authority initially they were placed separately, but by August 2013 they were brought into a single placement. In November 2013, the children moved placement and have now been in the current foster placement for nearly 18 months. The Local Authority by the first social worker (who I shall refer to as ‘SWA’) undertook an assessment of the mother between July and October 2013. It concluded that the mother would not be able to offer safe or consistent parenting for the children; a significant question was raised about the capacity of the mother (I return to this below). In January 2014, a new social worker (SWD) was appointed. Viability assessments of the maternal grandparents were conducted, and were positive; further assessment of them (finalised in the summer of 2014) were negative.

Finally in July 2014, as indicated above, the Local Authority issued care proceedings. The children remained accommodated (section 20) with parental consent. Only when the proceedings were listed for IRH was the issue of the status of the children’s accommodation properly addressed; given that the mother had questionable capacity to consent to the accommodation of her children, interim care orders were made.

Since the children’s placement in care, the mother has seen them regularly; initially three times per week, now twice per week. AM was seeing the girls once per month, but has not done so for some time. SM, the maternal aunt, has seen the children approximately six times in the last few months.

Some aspects of the background history of the mother are disputed. Factual determination of those controversial facts would have been essential had the maternal grandparents still wished to be considered as primary carers for HY and HA. It nonetheless remains important for me to determine them given the proposal that HY and HA be placed within the maternal family; these issues are:

The mother makes a number of allegations, and the Local Authority relies upon them. It is therefore for them to prove their case; the grandparents are not required to prove or disprove anything. In relation to these disputed issues of fact, the standard of proof is the ordinary civil standard: see Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at §2:

“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”.

I have considered the issues with some care. There are various inherent and particular difficulties in determining the facts in this case:

In assessing the mother’s credibility in relation to her complaints about events surrounding her treatment at the hands of her parents, I have of course had particular regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 293. As appears from these authorities, a conclusion that a person is lying or telling the truth about point A does not mean that she is lying or telling the truth about point B. I accept that a witness may lie for many reasons, for example, shame, panic, duress confusion or distress; the fact that a witness has lied in respect of one matter does not mean that he or she has lied in respect of everything. I am also conscious that a witness may lace a true account with untrue embellishments in a mistaken belief that it will enhance the account.

The mother gave evidence via live video-link, and with the assistance of Ms Fletcher, the intermediary. This followed not just a general ‘ground rules’ hearing before the commencement of the hearing, but a further, specific ground rules hearing to consider the issues which would arise during her evidence. All counsel were alerted to the need to keep the questions short and simple, to allow time for consideration, not to use abstracts or tag-questions.

The mother was in my view consistent in her account of abuse at the hands of her parents, appearing to recall well events which largely corresponded with her written statement. She added additional detail in her oral evidence which adds verisimilitude to the account. The grandparents and SM also gave brief evidence about the allegations.

There is little corroboration for the accounts, or indeed the denials. In reaching a conclusion about the facts I have considered the following as being of importance:

Having reviewed the evidence as a whole, I have reached the following conclusions:

I agree with the Children’s Guardian (reference her oral evidence) who indicated that if any of the mother’s specific allegations were true, then it would be likely that this would overlay a degree of emotionally abusive behaviour on the part of the grandparents.

The mother makes other allegations, including assertions of having her hands and feet tied, of the maternal grandmother placing a chilli on her vagina as a punishment. I suspect that the mother may well be telling the truth about these too (or there may be a kernel of truth in them), but am unable to say on the balance of probabilities that she is, and have therefore to proceed on the basis that she is not. When making my positive findings (above) I have taken into account that in among the mother’s accounts are stories which I have not been able to find to be true.

While SM recognised that her parents struggled to cope with the mother, it is possible that she may not have realised the more subtle forms of emotional abuse of her sister. I was concerned that SM bought into the family mythology that the mother had ‘chosen’ to remain in Somalia in 2004, but it is likely that (particularly given the difference in age between her and the mother, and that SM was only 12 during this trip) she knew, and had been encouraged to believe, no different. SM was adamant (in cross-examination) that the maternal grandmother had “never ever slapped” the mother; it is possible that SM never saw the occasions when this happened (she may have been at school). It is possible, I recognise, that she may have a naïve and/or misplaced loyalty to her parents.

One final point. During the assessments, extended family members were asked about the possibility that the mother had been subject to ‘honour based violence’; they disputed this. The phrase appears in the schedule of proposed findings, and has percolated into the witness statements describing the mother’s experiences. As I indicated in exchanges with counsel during submissions, I have misgivings about the use of the phrase ‘honour-based violence’ in this case to describe the alleged abuse. I am far from sure that it is necessary or helpful to label the alleged abusive conduct of the maternal grandparents in this (or indeed any) way; indeed, asking the family about abuse in this way may have affected their responses. ‘Honour-based violence’ is often used to describe abusive practices, which are used to control behaviour within families or other social groups to protect perceived cultural and religious beliefs and/or honour. Such violence can occur when perpetrators perceive that a relative has shamed the family and/or community by breaking their honour code (see CPS Guidance). As Wall P said in Re B-M [2009] EWCA Civ 205 the actions of those who perpetrated crime in pursuit of some purported cultural objective should not be dignified with the term ‘honour’; “they have nothing to do with any concept of honour known to English law” (para.117).

I have been asked to consider whether there was domestic abuse between the mother and AM. I have little doubt that the relationship was occasionally volatile; I note that the police were called on at least one occasion in January 2009 (possibly earlier also in December 2008). I am not able to conclude that AM had in fact been violent towards the mother, and the police report refers to a verbal altercation; it is just as likely that she had invented or exaggerated his conduct for attention. Reports of the alleged incident in 2011 contain unattributed references to the mother being hit; the evidence is insufficient on which I can properly make a finding of fact, and I decline to do so.

It is important that I raise at this stage a significant point of concern about the evolution of these proceedings.

As I give this judgment, the children have been in foster care for 93 weeks. Put another way, HY has been in care for nearly a third of her life, HA for nearly half, TY for nearly two-thirds.

These children were accommodated under section 20 of the Children Act 1989 in July 2013. The letter before proceedings had been sent to the mother in January 2013. A ‘letter before proceedings’ is defined in PD12A FPR 2010 as:

“… any letter from the Local Authority containing written notification to the parents and others with parental responsibility for the child of the Local Authority's likely intention to apply to court for a care or supervision order and any related subsequent correspondence confirming the Local Authority's position”.

The term has no meaningful definition if (as happened here) 18 months passes between the letter before proceedings and the issue of proceedings.

By the time of the accommodation of the children, there was more than enough evidence in my judgment on which the Local Authority could have established “reasonable grounds” (section 38 of the 1989 Act) to believe that the children were suffering or likely to suffer significant harm. In mid-October 2013, a social work assessment on the mother was concluded; the social worker (SWA) reported as follows:

“… the children need decisions to be made about their future as quickly as possible. I do not believe that [the mother] has the capacity or desire to change at the present time and I therefore do not feel that there are any additional services which could be identified for [the mother] which would support her make changes…” (emphasis added).

In light of that recognised need for urgency, it would have been entirely reasonable to expect that by the time that the second social worker (SWD) took over the case (January 2014) proceedings would have been underway; they were not. SWD inevitably had much catching up to do to familiarise himself with the case; this was, as he said with no small understatement, a complex situation. The complexity of the case was tentatively offered as an explanation for the delay of a further six months before the issue of proceedings, but he accepted in evidence (rightly, in my view) that the level of complexity was the very reason why proceedings should have been commenced much sooner. It was not until July 2014 that proceedings were in fact launched. In November 2014 he wrote:

“As time passes and the children grow older and more attached to their current carers, the impact of disruption to their care arrangements becomes more traumatic. It is imperative that further delay be avoided.”

And in his oral evidence said this:

“I would be wary of any plan which involved further delay; I would not want to risk prospective adoptive placements”.

I do not consider that responsibility for this situation lies with any individual social worker (either SWA or SWD); this was a corporate failure of a clear duty to place this difficult case before the court for which responsibility lies higher up the management chain. As it happens, SWD struck me as a particularly conscientious, thoughtful and intuitive worker who took great interest and care over his work, and was evidently struggling to explain or reason the current situation. He appropriately accepted responsibility for the actions of the authority, rightly acknowledging that “we should have acted differently”.

The essential statutory provisions governing accommodation are Section 20(4)/(7) of the 1989 Act which provide that:

Consent to the children’s accommodation had been given by a mother in July 2013. By November 2013 (at the latest) it was acknowledged that she had significant learning disability; the parenting assessment had identified that the mother was functioning in the “learning disability range” with an IQ of 61. Even though I accept, as SWD fairly pointed out, that local authorities must proceed from a starting presumption of capacity, this assessment did not provoke immediate review of the accommodation arrangements and launch of proceedings in order to regulate the legal status of the children. It should have done. This Local Authority (and regrettably from my recent judicial experience this authority is not alone) failed to pay careful attention to the guidance of Hedley J in Coventry City Council v C, B, CA and CH [2012] COPLR 658 at [46]:

In my view, for a significant period of time, the children have been accommodated unlawfully.

There are considerable repercussions from this delay. The children have been in limbo, living with a foster carer for such a significant time that they have formed positive attachments to her, but she cannot care for them in the long-term. On any view, the children need to move. For a lengthy period, the children lost contact with their extended maternal family, who now (through SM) advance an entirely respectable case to care for them. Precious time in the lives of these children has been spent, I would say wasted, while the Local Authority has failed to progress any meaningful form of care planning.

Sir James Munby P had cause to criticise a local authority in Re A [2015] EWFC 11 for its use of section 20 accommodation. Keehan J did so too in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam); in that judgment Sir James Munby P described the use of accommodation by this Local Authority as a “misuse” indeed “an abuse” of the provision of section 20. He said that:

“There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated. I draw attention to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065”.

In the Northamptonshire case (referred to by the President), Keehan J had referred to the fact that by using section 20, the Local Authority deprived the child of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it had deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time. The same criticisms in my judgment apply here.

In my judgment this was a dereliction of the local authority’s duty to bring the issue to the attention of the court, and I regret that valuable time has been lost in the care planning.

There is a clear expectation that this public law application should be resolved in accordance with a timetable appropriate for this child – that is to say, that I should have “particular regard” to the impact which “the timetable for the proceedings, any revision or extension of that timetable would have on the welfare of the child to whom the application relates” (revised PD12A §5.2); this dovetails with the expectation of completing the proceedings within the limit of 26 weeks from the date of issue (see now section 14 Children & Families Act 2014). That has not been, and will not be, achievable in this case, at least in part because of a lack of energetic case management.

The threshold criteria under section 31 CA 1989 is not contested in this case. The relevant date for determining threshold is the time that protective measures were taken, namely July 2013 (Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, [1994] 3 WLR 558, [1994] 2 FLR 577 (HL)). The mother, through the Official Solicitor, accepts that there is a proper evidential basis for the court to conclude that at the time that protective measures were taken in respect of the children, they were suffering or likely to suffer significant harm. AM does not contest the threshold in relation to HA.

I can confirm that I am entirely satisfied that the children were suffering or likely to suffer significant harm as at July 2013, and that such harm was attributable to the care offered to the children, not what it would be reasonable to expect a child to receive. The particular facts on which I so find include:

HY is 6 years old. She is described as having global developmental delay with language and perception, although she has made considerable progress in foster care. She is described as a loving and interested child who is a “joy to look after”; she is described by her primary school as an “enthusiastic learner”, though has a short attention span and is likely to require one-to-one support in mainstream education; because of her upbringing, she is said to require more than good enough care, though responds well to care and attention and is therefore a highly rewarding child to care for. HY like her sister HA are said to be over-familiar with strangers.

HA is also a delightful girl, who has no special needs. She is well-attached to her sister, and to her current foster carer. In October 2014, she had indicated to the social worker that she thought it may be “better if me and [TY] lived in different houses” but is said over the last 6 months to have become closer to her little brother.

TY is said by his foster mother to be a “happy, healthy, lovely little boy” with occasional toddler tantrums, and is meeting all of his developmental milestones. TY does not appear to have a strong attachment to his sisters.

The mother wishes to resume care for all three children; this outcome is not supported by any other party, including her own family. The Official Solicitor has confirmed that the mother is not in a position to offer a home to her children, and does not contend for such an outcome on her behalf.

There is no doubt that the mother has a warm and caring relationship with the girls and TY, and the contact is said to be positive. In that sense she has a valuable role to play in their lives. However, the mother struggled to cope with them prior to 2013, and has been unable to commit to contact more than twice per week since the reception of the children into foster care. She has formed inappropriate relationships with a number of unsuitable partners (JR and then DR), and has chosen not to heed advice to remain separate and apart from them.

The mother told me that she would be happy for SM to care for HY and HA; as indicated above, this is a change in her position, initially opposing SM’s application. The mother “did not agree with [her mother and father] looking after them [the children]…Because of what happened when I was younger”. She told me later in her evidence that she would not want SM living with the maternal grandparents if caring for HY and HA, and would not even want them to have contact.

SM, the mother’s younger sister, maternal aunt to the children, seeks the care of the HY and HA. The evidence suggests that she has had reasonably regular involvement with the children throughout most of their lives (generally six times per year), though on the evidence it appears that for a period of time from April 2012 to July 2013, and again from July 2014 to February 2015 she did not see them.

She currently lives with her parents in London, though would plan to care for the children independently (albeit with support from the maternal grandmother). SM has no experience of independent living; she has little experience of employment though has basic qualifications in health and social care and has undertaken a number of work placements, currently receiving Job Seekers Allowance. She is not in a permanent relationship herself, and spends much of her time caring for her sisters’ children in London; she is indeed seen as the family member on whom all others rely for help. Contact between HY and HA and SM has recently been arranged, and has taken place successfully. I saw photographs of these contacts which show happy times.

The Local Authority undertook a viability assessment of SM and concluded that, on balance, she would not be able to offer long-term care for the girls. They identified the following positives (in summary):

The Local Authority’s principal objections to SM’s proposal to care for HY and HA were:

I am less troubled about the delay ([62](i) above) than the Local Authority. It was, in my judgment, to a degree understandable that SM held back while her parents were assessed by the Local Authority, particularly given that the viability assessment of the grandparents had been positive. On one level it would have made more sense for the grandparents to care for their grandchildren (with support from SM). When the full assessment of the grandparents was negative, SM did not delay in advancing her own case to care for her nieces; she is able to acknowledge now that there may have been difficulties in her parents caring for the children. As for [62](iii) above, while she has not lived independently, she has assumed many of the practical and administrative tasks of running her parents’ financial and other affairs, budgeting, and paying their bills. She has, I am satisfied, a reliable and rational understanding of the demands of running a home.

An independent social worker, Mrs Fournel, was appointed by the court in November 2014 to assess SM further. While Mrs Fournel considered that SM is a “well-intended and very pleasant young woman” who is trying to do her best for her sister and her nieces, nonetheless, the conclusions of the assessment (per her written report and addendum) pointed on balance to a negative outcome, with a tentative recommendation for further assessment (“There should be an adjournment of the final decisions concerning the placement of the children in order that there could be a further assessment of SM”). The key messages from the reports appear to me to be as follows:

The report of Mrs Fournel was filed in December 2014, and the addendum in January 2015. Since that time, SM has sought to address some of the concerns raised in the reports, and has filed evidence which outlines her endeavours. Mrs Fournel had read that material before she gave oral evidence at the final hearing. From the witness box her view had shifted; her final recommendation to the court was that the girls should be placed with SM after all. She told me “there is a lot of me which goes with the family placement … children do better with their birth families”. Later she added “I am moving more towards family placement” … “the more I have understood her better, the more I think she can do it” but cannot do it without support. Mrs Fournel considered that SM has “quite a lot of insight”, “is quite capable”, considered that she “welcomes support in whatever form”.

I wish to highlight three aspects of the evidence which, although discussed, were not in my judgment given sufficient prominence and which have given me particular cause for concern are:

The Local Authority submits a care plan proposing adoption for all three children. Two sets of potential adopters have been identified, one for the girls, and one set for TY; they are ‘in the wings’ waiting to know the outcome of these proceedings. I propose to say little about their profile given the confidentiality of this potential process. The family finding social worker regards these potential placements as “very promising”; they are described as “broad-minded, outward-looking, generous-natured people, and insightful” (Ms Rankin, adoption social worker), and they have been “hanging on” for this hearing in the hope of placement orders being made. The prospective adopter for the girls has much experience of Africa, but is culturally, religiously and ethnically not a true match. I cannot be influenced for one moment by the probable disappointment of the potential adopter(s) by the outcome of this application.

The Local Authority does not advocate a plan for post-adoption contact between the children and any of the maternal family. Indeed Ms Rankin told me that the “philosophy of adoption is that direct contact can jeopardise the emotional security of the placement”. I do not accept that this ‘philosophy’ is either widely held/applied, or necessarily accurate; while post-adoption contact can undermine a placement if the family member does not support the adoption, it could in my judgment have the opposite effect if a natural family member, and the adoptive parents, support it.

The Local Authority oppose family placement of the girls with SM. They refer, with some justification, to the enormity of the task which faces SM, the multiple changes which she will need to make, and the task of delivering the high level of care which these children need. The Local Authority submit that while SM is a warm and affectionate and well-intentioned person who has shown great commitment to the process, she cannot in fact do this, and that the risk to the girls of failure is too great a risk to take.

SWD has prepared excellent ‘balance’ sheets which faithfully and accurately reflect the benefits and disbenefits of each option. I have carefully considered these, in reaching my conclusion.

The Children’s Guardian (‘Guardian’) prepared a report in January 2015, but there was no updating report, nor was a position statement filed on her behalf at the outset of the case (27 April 2015). The report in the Placement Order proceedings was filed only on the fourth day of the hearing as a result of an “oversight”.

The January 2015 report was inconclusive on the issue of SM’s application. She recommended a “short adjournment … for further support work and assessment of [SM] as a potential carer for [HY and HA] to be completed”. At that time, SM was not even seeing the children; contact resumed shortly after the filing of this report. The Guardian recommended concurrent planning. After the hearing had begun, the Guardian’s counsel (answering my query about the Guardian’s position) confirmed that the Guardian supported the placement of HY and HA with SM subject to:

By the time of the hearing, the Guardian had resolved to support SM’s application. As mentioned earlier, there had been little dialogue with the social worker about the fact that she had revised her view; I attribute the greater share of the blame for that with the Guardian who was challenging the Local Authority’s plan. The Local Authority was right to challenge this shift, and to probe the Guardian’s reasoning. At my request, the Guardian produced on day three a list of the key reasoning to support her change of position; it included the following:

In her oral evidence the Guardian told me (evidence in chief):

“I would prefer the children to remain (sic.) in SM’s care, because of the needs and ages of the girls, and the good quality of care she can offer. She offers commitment, and has provided reasonable explanations for the eventualities for the children to be in her care. I accept that she has done her best to alleviate the housing problem. I have been impressed with the fact that she has addressed the emotional needs of the children.”

She added, later, that she thought that the placement would be “risky”, but there were sufficient positives in the placement, and that SM had been “realistic” in addressing the issues which presented the greatest risks.

I agree that the Guardian has identified (see [72] above) accurately the most significant qualifications to a safe placement of the children with their aunt. As to [72](iv), I have found that in some respects the parenting of the mother was abusive, but in a more subtle way than the schedule of allegations may have indicated.

This is undoubtedly a difficult and finely balanced case. In reaching my decision, I have given absolute priority to the best interests of the three children individually, and collectively as a sibling group. Given that adoption is in contemplation (on the Local Authority’s case) for all three, I have considered their welfare throughout their lives, and of course to the Article 8 ECHR rights of the parties involved, and their powerful, albeit not unqualified, right to respect for their private and family life. I am statutorily obligated to consider the wider 'welfare checklist' in section 1(4) of the Adoption and Children Act 2002 (see In re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31, Re R (A Child) [2014] EWCA Civ 1625, para 20 and 51). Adoption, the preferred outcome of the authority, is an order with life-long consequences (section 1(2) of the 2002 Act), so (I emphasise) the children’s welfare must be considered "throughout [their] life".

I must also have regard to the issue of proportionality. Any intervention must be in proportion to the harm it seeks to guard against and no more. As the Supreme Court made clear in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, adoption is the last resort and is only permissible if nothing else will do. The judicial task of weighing up the options was described in the recent case of Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035; I refer to paragraphs 43 and 44:

I agree with SWD that the most important thing is for the children to have the chance of a “stable continuous relationship” with their primary carer going forward. They have the potential to form secure attachments. However, the length of time these children have been in foster placement, and the considerable delay in instituting these proceedings, adds considerable pressure on the court to make a decision which produces the right result.

Given the different circumstances of HY and HA compared with TY, I propose to deal with their outcomes separately; I discuss my final decision for HY and HA (see [80]-[95]) before turning to TY (see [96] – [102]).

Decision re: HY/HA: I consider that the Local Authority had rightly assessed the positives and the negatives of a placement of HY and HA with SM (see [61-62] above), and had, on the evidence then available, understandably reached the conclusion that the negatives outweighed the positives. On the evidence before me now, I differ from them in reaching a conclusion that the benefits outweigh the risks and potential disadvantages.

As Hedley J said in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50, “society must be willing to tolerate very diverse standards of parenting … It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it”. I must guard against social engineering, or searching for the hypothetical ‘perfect home’ for HY and HA. It is important to be realistic about the options. There is no ‘ideal’ solution.

In considering the Local Authority’s case for adoption for the children, I must satisfy myself on the evidence that “nothing else [but adoption] will do” (see In re B [2013] above, and Re B-S [2013] above. Even though the message has been moderated to some extent by the decision of the Court of Appeal in Re R (A Child) [2014] EWCA Civ 1625, nonetheless placement orders and adoption orders are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

In this case, where family placement has been offered, it is necessary and appropriate to consider the judgment of Hale LJ (as she then was) in Re C and B http://www.bailii.org/cgi-bin/redirect.cgi?path=/ew/cases/EWCA/Civ/2000/3040.html[2001] 1 FLR 611, para 34, namely:

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”

Having weighed the relevant considerations, and not without some reservations, I am nonetheless drawn on balance to the benefits to the children of being raised within their natural family. Specifically:

SM’s two other sisters MM and RM contributed to the assessment of the maternal grandparents. MM is a paediatric nurse, who lives in her own property with her 2 year old daughter; RM lives with her husband and 2 children (aged 6 and 5). They give generally positive accounts of their childhoods, and indicate support for the two girls HY and HA moving to live within the extended maternal family. It seems that they are in a position to offer emotional and practical support to SM, which is material to my reasoning.

I consider that SM has insight into the needs of the girls; she recognised that the girls will be “very upset” to leave their current foster carer to whom they are (she recognised) “very, very attached”; she has apparent energy to deal with their demands, an established relationship with them, and a reasonable awareness of what she is taking on. The Guardian considered that she is ‘flexible’ and when observed at contact, she adapted well to the fact that HY was slightly below par; she is said to have been a pleasure to deal with, and no professional says that she has been other than open and honest with them.

I consider that on the current information the Local Authority should advance plans to place HY and HA with SM. To some extent this will be an extended period of assessment; in the event of unforeseen or significant difficulties in the placement of the girls with SM, the Local Authority (indeed any party) should restore the case before me for further directions and can do so urgently. As the Guardian commented “[SM] needs to be able to get this right. She needs to be able to demonstrate that she can embed it properly. The final parts … [of the implementation of the plan]… we have not been able to observe”.

The children regrettably will need to be separated; they need to be prepared for this. The likely experience of grief by HY and HA at ‘losing’ the relationship with their brother will add further stresses to their placement (wherever it is). There will be difficulties of maintaining sibling contact if TY is adopted, and HY and HA remain with the maternal aunt. There is a concern that prospective adopters would not tolerate sibling contact where at least one sibling is having contact with the natural parent. I very much hope that sibling contact can be preserved in some form.

Corresponding with the guidance of the Supreme Court in Re B (at [105]), I have taken into account, in considering SM’s ability to discharge her responsibilities towards the children the assistance and support which the Local Authority could or would offer: "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this regard, I have identified (though this is by no means an exhaustive list) the following areas in which SM requires urgent assistance:

SM will play a significant role in the facilitation of contact between HY and HA and their mother and father. I recognise that the mother wishes to have monthly contact with HY and HA in the event that they are placed with SM. This proposal reflects the very strong feelings which I know the mother continues to harbour for her daughters. However, the mother and the girls need to adjust, and soon, to the fact that the girls are not ever going to return to her care, and that they are to have (and benefit from) an alternative strong primary caring relationship.

In these circumstances, I propose to direct that the mother’s contact with HY and HA should be reduced immediately, so that it comes to rest at a level of two/three times per year. I consider that this limited contact is essential for the girls in order to enable the girls to settle permanently with their aunt. I am conscious that SM and the mother speak with each other regularly on the telephone; I envisage that the girls could have some limited telephone contact with their mother, but not more than once a month or something of that nature.

The contact between the mother and her children is for the mother alone; she is not to bring friends or others to the contact. There is evidence that her social contacts (and former partners) pose a significant risk to HY and HA; DR (her most recent, or possibly still current, partner) appears to be a recidivist offender, with schedule 1 convictions (schedule 1 to the Children and Young Persons Act 1933).

It may be that AM would wish for some contact with HA and possibly HY. He could not properly express a view about this in the witness box given his principal stance (i.e. that HA should be adopted), nor (as I made clear at the time) would I have expected him to do so at that stage of the case. If he does seek contact, it would make sense for that to commence with some indirect contact initially before moving to direct contact. AM needs to demonstrate consistency and commitment to HA. He has something important to offer his daughter – a relationship with a natural parent – and also HY, but that will only be positive for the children if he can prioritise their needs.

Inter-sibling contact (i.e. with TY) should if at all possible take place two or three times per year. I recognise that this will depend upon the willingness/ability of the prospective adopters to tolerate this.

I propose to continue the interim care orders in relation to HY and HA for the time being. The Local Authority has indicated that if I were to favour family placement, it would want to share parental responsibility for the girls at least during the period of transition. Transition involves ongoing assessment. The essential orders shall therefore reflect:

Decision re: TY: The threshold criteria are satisfied in relation to TY (see [52] above). As to future placement, TY is in a very different situation from his older half-sisters. He cannot realistically be returned to the care of his mother for the reasons outlined above; his father is not in a position to care for him. No extended family member applies to care for him.

His future emotional wellbeing depends, in my judgment, on being provided with a permanent and secure family placement. I am wholly satisfied that this can best be achieved, indeed it can really only be achieved on these facts, by way of adoption. In reaching this conclusion, I have faithfully applied the factors set out in the ‘checklist’ in section 1(4) of the ACA 2002, having carefully considered in particular section 1(4)(c) (i.e. TY ceasing to be a member of his natural family). On these facts, section 1(4)(f) requires particular attention, namely “the relationship which [TY] has with relatives… including the likelihood of any such relationship continuing and the value to [TY] of its doing so”; section 1(4)(f) further requires me to consider “the wishes and feelings of any of the child’s relatives”.

TY has a relationship with HY and HA; they presently live together, and have done so for almost all of their lives. Their placement plans are bound to mean separation. In my judgment, it would be significantly in their mutual best interests if their sibling relationship could endure in some form or other; ideally, this should be by way of direct contact two or three times per year. I do not propose to make any order in this regard (under section 26(2)(b)/section 27 of the 2002 Act), because I wish to take no step which may impede a swift and satisfactory placement of TY. I nonetheless direct that prospective adopters should be made aware of my views.

The Local Authority propose a mixed race placement for TY. While not a perfect match, it is nonetheless a good match, fulfilling the obligations imposed by section 1(5) to give due consideration to TY’s racial origin.

I therefore make the care order in relation to TY.

I must next consider whether or not I can dispense with the parents' consent to the adoption of TY, applying section 52(1)(b) of the 2002 Act as explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625. Section 52 provides as follows:

In my judgment, the welfare of TY does require that the consent of the parents be dispensed with, and I therefore do so. I make the placement order contended for.

The Local Authority issued an application on 21 January 2015 for a declaration of parentage (section 55A FLA 1986) in respect of HY, to correct the error on the face of her birth certificate naming AM as her father.

I am satisfied that the statutory requirements for making such an order are satisfied, and that it is in the best interests of HY that such an order is made (section 55A(5)). No party opposes this declaration, and I accordingly grant it.

I return to consider some of the matters outlined at the beginning of this judgment.

At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

May I draw to their further attention PD27A, §4.4:

May I additionally remind counsel of the terms in which the President of the Division had cause to comment in Re L [2015] EWFC 15 at [17]:

“Compliance with PD27A para 6.4 remains fitful. It is, for obvious reasons, a critically important provision. Compliance with PD27A para 6.4 is essential, as also, for similar reasons, compliance with PD27A para 8.2.” (para.17)

In relation to the court bundle, no judicial approval had been obtained in accordance with PD27A para 5.1 to exceed the permitted limit. I cannot understand therefore why this exceeded the prescribed limit. Counsel will do well to read again J v J [2014] EWHC 3654 (Fam), and Holman J, in Seagrove v Sullivan [2014] EWHC 4110 (Fam), coupled with the President in Re L [2015] EWFC 15, in which the President said at [20]:

“there is a double requirement to be satisfied before any document is included in the bundle: it must be relevant and it must be a document which will be used, in the sense that it will either be read or referred to. This principle is reinforced by the list of documents which PD27A para 4.1 states "must not be included in the bundle unless specifically directed by the court"”.

I wish to re-state the importance of compliance with PD27A FPR 2010 (as amended), specifically:

I would further like to take this opportunity to remind counsel of the provisions of §12.1 of PD27A, namely:

“Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order”.

It would have been quite contrary to the interests of these children to have removed this case from the list on this ground particularly given the exorbitant delays already; I am nonetheless disappointed (to say the least) that the warning about wasted costs was not of itself sufficient to ensure compliance.

That is my judgment.