AB v Durham County Council & Ors (Revocation of Placement Orders)

AB is the father of two young children, C, a boy aged 4 years 11 months, and D, a girl aged 3 years 11 months. In June 2023 the Local Authority issued care proceedings in respect of the children who had been in foster care since January 2023 after AB entered a s20 agreement under the Children Act 1989 (CA 1989). The mother did not engage with the subsequent care proceedings. AB did engage but on 26 October 2023, HHJ Murray made care orders and placement orders in respect of each child.

The agreed threshold findings recorded by HHJ Murray included the following:

HHJ Murray found that AB, who was born and brought up in an Eastern European country that I shall call R, had lived in England for about 13 years. He had formed a relationship with N, the mother of the subject children, who then already had three very young children, two of whom were twins. AB and N then had C and D so that they had the care of a total of five children aged 4 or under. They lived in the Midlands and cared for the five children with the help of N’s mother and others, in often crowded conditions, moving from place to place. Children’s services became involved in or about March 2022 due to homelessness, inconsistent parenting, alcohol abuse and financial difficulties. The children became Children in Need. By September 2022, AB decided to care for his two children alone and moved to the Northeast of England but after two months in his sole care, the Local Authority became involved. On 15 December 2022:

"Police visited the home after a neighbour shared concerns that the children had been left alone. The children were under the care of a friend of AB’s but he is a known drug dealer. Dad (AB) arrived home with another friend, who is also known to police around drug dealing and also domestic violence. No food at the home or heating."

On 5 January 2023 police found the children living in poor conditions, AB had left them with neighbours for an extended period whilst he drank, and the children were placed in police protection and then housed as siblings together by the Local Authority with foster carers with whom they remain.

The neighbours with whom AB had left the children were, the Police recorded, unknown to the children but they were known to children’s services because of child protection concerns regarding their own children. AB had been in his own flat with another male said to be known to the police for drug dealing. Police could not question AB that day because of his condition and on the following afternoon police noted that he was still unfit to be interviewed because he was suffering alcohol withdrawal symptoms.

C and D have therefore been in foster care for 22 months and the placement orders were made 13 months ago.

The Local Authority has been attempting to find prospective adopters who are a cultural match and who are prepared to adopt C and D together. Those requirements resulted in some delay identifying suitable prospective adopters but in April this year prospective adopters who are an ideal cultural match were identified. They have been approved and have been waiting to adopt since August 2024. AB made his revocation application in late July 2024. In September 2024 HHJ Moreton gave AB leave to make his application.

AB lives alone. Currently he works in Scotland on a construction site. He retains a home in the Northeast of England. On 27 December 2023 he was admitted to hospital suffering from severe alcohol withdrawal symptoms. He tells me that he had stopped drinking two days previously and that he has not touched a drop of alcohol since then. His application to revoke the placement orders is grounded in his abstinence over the past 11 months. In essence, his case is that the care and placement orders were made because he was abusing alcohol and since he is no longer abusing alcohol and has proved his long term abstinence, the orders should be revoked such that the children should be returned to his care.

The hearing of AB’s application was listed before me for three days. On the first day I was informed that the Guardian, Ms X, who had been instructed for these proceedings but had not been involved in the care proceedings, who had prepared a written report, was unable to attend the hearing due to a medical crisis, and would probably be unable to return to work within the next two to three weeks. A colleague, Ms Y, was able to step in. She could meet AB, listen to his evidence and then speak to Ms X’s report and give any further opinions or recommendations of her own on Day 3 of the hearing. AB, through Counsel, opposed that option for proceeding with the case. He proposed that there should be a wholly fresh analysis by Ms Y or another Guardian. Unfortunately, the Court would not have been able to accommodate another three day hearing until January to February 2025. I ruled, as a case management decision, taking into account the Art 6 rights of AB and the children, and the need to avoid delay for the children whose prospective adopters await the decision of the court on revocation, that the option of Ms Y becoming involved in this hearing should be pursued. I am very grateful to Ms Y for stepping in a short notice.

I heard oral evidence from Ms Z, the Allocated Social Worker, AB, and Ms Y. I received the papers from the care proceedings before HHJ Murray, medical records, results of hair strand testing and blood tests, statements from the Allocated Social Worker and from AB, parenting assessment of AB, and two analysis reports from the Guardian Ms X. I received a note of discussions between Ms Y and AB.

The Local Authority opposes AB’s application as have both Ms X and Ms Y. Ms Y ultimately adopted the conclusions of Ms X but articulated her own concerns when giving oral evidence. I found both Ms Z and Ms Y to be thoughtful, sensitive witnesses who fairly recognised the remarkable progress AB has made to sobriety.

Ms Z told me that the prospective adopters are an ideal cultural match. They have been awaiting the outcome of AB’s application and are anxious to know the decision of the court. The children have been prepared for an adoption placement and only see AB once a month. Ms Z was firm in her view that the placement order should not be revoked. Firstly, she believed that it was too great a risk for the children’s safety and wellbeing to be returned to their father’s care. His abstinence was recent when set alongside his long-standing alcohol abuse. He did not have the support by way of therapy or a network of friends or family. It would be devastating for the children to be returned to his care only for to be removed later should AB not be able to provide their emotional, physical, and psychological needs. It has taken months to identify suitable potential adopters. The adopters are an ideal match and are awaiting the outcome of this hearing. Further delay will jeopardise that potential adoption placement.

Ms Z noted that when the children have been withdrawn and uncommunicative during family time with AB compared with their usual, more lively and inquisitive selves as seen at school and in other settings. This may be due to the language barrier between them and AB. They no longer speak his native language and he has virtually no English. So long as the language barrier lasts, AB would not be able to understand the children’s concerns and would have difficulties communicating with healthcare or educational professionals on their behalf. It would be a hinderance to his protection of the children’s emotional welfare during what would in any event be a challenging transition to his care.

AB himself gave evidence through a very able interpreter. He frankly accepted that he had not always been fully open about the extent of his drinking. It is not uncommon for someone addicted to alcohol to deny the extent of their use and dependence. However, he has also shown some lack of candour over the past year when he says he has not been drinking. He has, by his own admission, done paid work in Scotland whilst claiming benefits and whilst, as he himself put it, unregistered. He has, I am sure minimised his past drinking when giving accounts to Ms X and to the social worker. Nevertheless, AB struck me as generally frank and sometimes blunt. His is not a world of grey, it is black and white. He told the Court that he has stopped drinking and that he would never touch a drop of alcohol again. He has told people he is an alcoholic. He knows that if he were to have one drink, he would probably have another and then another and would soon be drunk. To that extent he has insight and is open.

However, it is clear to me that he started drinking heavily before he had children. It cannot be fairly said that it was the stress of having to look after five children that triggered his alcohol abuse but it may have exacerbated it. AB has not identified why he became dependant on alcohol as he plainly was for a long number of years.

AB’s evidence is that he has effectively stopped drinking and stayed sober for eleven months by himself. He has attended hospital when suffering severe withdrawal symptoms and has attended three to four Alcoholics Anonymous sessions, but otherwise he has not sought support. This is significant. He stopped going to AA because of practical difficulties with travel. He has not solved that problem and has effectively chosen not to re-engage with AA or any similar service or support group. He has not re-engaged, as he had done before the placement orders were made, with Humankind, a service that supports addicts. He has not done so despite being advised to do so by an Alcohol Team nurse after his admission on 27 December 2023. He has not done any work with a relapse prevention team as advised at the time of the care proceedings. He has not undergone an oesophageal gastroscopy as he was advised to do within 6 weeks by consultant gastroenterologist Dr H in March 2024. He has gone it alone.

AB lives in a town in the Northeast and rents a home for £400 per month. He has no support network there. In fact he currently effectively lives in Scotland where he works. He told the Court that he has kept on the rental property in case the children are returned to his care. However he also told the Court that he would move to another town if the children were returned in order to be closer to a community from his native country which exists in that other town. He could not name any friends in that other town. He has referred to a friend from a third town, several miles away, who has volunteered to help babysit when needed but other than her he cannot name any members of a support network either where he currently lives or in the other town to which he intends to move if the children were returned to his care.

There are equivocal hair strand testing results when chest hairs were tested including in a report of October 2024 following the provision of a chest hair sample on 30 September 2024. Tests were performed for Ethyl glucuronide (EtG) and Ethyl palmitate (EtPa). The former was not detected but the latter was detected at a level well above the reporting cut-off level. The results were therefore mixed, and the report’s conclusion was that AB “may have consumed excessive levels of alcohol.” On the other hand all blood test results since 9 August 2024 have been negative albeit they can only detect more recent consumption. Scalp hair strand testing of a sample taken in September was negative indicating meaning either no, or low alcohol consumption for the three months prior to that date. AB was adamant to his doctors that he has been abstinent and they have accepted that. His level of functioning has improved significantly as recorded by his treating clinicians and this suggests abstinence. Liver Function Tests have returned to normal.

I have evidence from Dr H, AB’s treating Consultant Gastroenterologist describing AB’s remarkable improvement due to successfully remaining abstinent. However, his evidence provides troubling information about the damage already caused to AB’s health. His liver cirrhosis is classified as Child-Pugh stage A. There is an estimated five-year survival rate exceeding 90%. Average life expectancy is typically between 10 and 15 years but some patients may live beyond this period and “others may experience fatal complications before reaching this point.” There is also evidence that without gastroscopy, as recommended, it cannot be known if AB has varices. There is a 10-15% chance that he does have varices and if he does then he is at risk of a major bleed which is fatal on first bleed in 10-20% of cases. Varices may well not cause any symptoms before a bleed. Thus AB is at a small risk of suffering a fatal bleed at any time. Treatment can be given but, first, a gastroscopy is required to detect any varices. AB declined Dr H’s advice in March 2024 to undergo gastroscopy within six weeks. He still has not had one since then. He tells the Court that he will undergo one.

AB’s Liver Function tests have returned to normal and he is fully functioning in terms of activities of everyday living and work. However, he is clearly at significant risk of developing complications of his liver cirrhosis and of premature death within the children’s childhoods.

Ms Y, to whom the Court is very grateful for stepping in at short notice when the Guardian Ms X was unable to give evidence at the hearing, adopted Ms X’s report and added views of her own having spoken to AB and heard him give evidence. She, like Ms X, opposed the revocation application. Her reasoning was similar to that of Ms Z. AB has not identified the core triggers for his alcohol abuse and the stress of having to care for his two children might well cause him to return to drinking and then rapidly to alcohol abuse. He would have an incentive to hide any drinking from social workers because he would know that he would be liable to lose his children again if it were known he was drinking. He might very well avoid seeking medical help when needed for the same reason.

Both Ms Z and Ms Y acknowledged that AB is a loving father whose motivation to abstain from alcohol has been to secure the return of the children to his care. That abstinence is recognised to have been a remarkable achievement by him.

In N (Children: Revocation of Placement Orders) [2023] EWCA Civ 1352, Peter Jackson LJ held,

“8.

Section 24(1) Adoption and Children Act 2002 simply provides that the court may revoke a placement order on the application of any person. Subsection (2) provides that leave is required for an application by anyone other than the local authority holding the placement order, and subsection (3) states the criterion for granting leave.

9.

Once leave has been granted, the decision under section 24(1) is a welfare decision to which section 1 of the Act applies: see section 1(7)(a). When determining an application under this section, the question for the court is whether it has been shown that it is in the child’s interests for the placement order to be revoked. In reaching a conclusion, the court will apply the provisions of section 1 in the light of the important principles that underpin the exercise of the original power to make care and placement orders.

10.

These principles were set out by Baker LJ in In re C (Children) (Placement Order: Revocation) [2020] EWCA Civ 1598, [2020] 4 WLR 167 at paragraphs 17-21. At paragraph 22 he concluded that they plainly have a bearing on applications to revoke a placement order. I agree, and would only add one very minor comment. Paragraph 23 contains a summary of the principles derived from the judgment then under appeal. We heard some submissions about minor aspects of that summary. In particular, subparagraph (g) suggests that a placement order might be revoked where parental/family are is merely ‘realistic’, when the correct test, stated above, is that revocation must be in the child’s interests. With this slight amendment, I would also endorse paragraph 23.

11.

As with any application, the legal burden of proof will rest with the applicant, here to show to the civil standard that it is not in the interests of the child to maintain the placement order. That is as it should be, since it is the applicant who seeks to change a plan for adoption that has been approved after serious deliberation. However, the outcome of the application will not in reality turn on the burden of proof, as the court will not be able to find that a placement order remains in the child’s interests if it no longer meets the stringent conditions that justify such a fundamental order. As the trial judge put it in Re C (see paragraph 26), the question is not ‘why shouldn’t the placement orders remain?’ but ‘what does the welfare of these children now require?’. Further, once permission to apply has been granted, the principles governing that preliminary stage are no longer relevant and the court’s task is to carry out an impartial review of whether a placement order continues to be in the interests of the child.”

Hence, adopting the principles summarised by the first instance judge, HHJ Sharpe, in In Re C, endorsed by the Court of Appeal in that case but with the amendment referred to by Peter Jackson LJ, the following principles apply:

Thise principles are to be adopted in the context of the application ACA 2002 s1 including the checklist at s1(4).

I must be careful about the weight to be given to the written evidence of Ms X, which Mr Trory for AB has not been able to challenge in cross-examination. Ms Y, for whose assistance at such short notice I am deeply grateful, has not had a long involvement in the case. Her evidence was given authoritatively and persuasively but I cannot give it the weight it would have merited had she herself had more time with the family and had prepared a report.

Ms Z’s evidence was also persuasive and she has been involved throughout the current proceedings. I was impressed by the thought she had given to the case and to AB’s application.

AB’s position is that, upon revocation, the Local Authority’s care plan should be amended to one of transition to AB’s care over a period of a few weeks. This would allow a build-up of family time and a change from supervised to unsupervised time and from the community to his home, preferably at a new home in the area to where AB has indicated he wishes to move. A Family Support Worker could provide advice and guidance. The children should be assisted for a period of time by someone who speaks AB’s language and English. There is a person at the Local Authority who could do that. Relapse Prevention work could begin with the help of an interpreter. AB could make a start on learning English.

The Local Authority and both Ms X and Ms Y oppose the application to revoke the placement orders.

I am persuaded that on the balance of probabilities AB has abstained from alcohol since about 25 December 2023. It is a remarkable achievement. I have no doubt that part of his motivation was to give him a chance to secure the return of his children to his care. The hair strand testing, blood results, and evidence from AB’s clinicians, all support his own assertion of his abstinence.

It is fair to note that when HHJ Murray made the care and placement orders, the main concern was AB’s alcohol abuse and the neglect that had flowed from that abuse, but it does not follow from AB’s subsequent abstinence, however sustained it has been, that his history of alcohol abuse is no longer something to be taken into account. Nor is it the case that the Court can have confidence that AB will remain abstinent just because he has achieved abstinence for eleven months. The risk of relapse, and the consequences if relapse occurred, have to be assessed.

It is over a year since the placement orders were made and there have been changes other than AB’s alcohol consumption during that time. Firstly, the Court now has medical evidence of the extent of AB’s liver cirrhosis and the impact of that on his life expectancy. The Court also has evidence about the need for gastroscopy investigations and the risk of fatal complications from varices. The children have come to speak English and they cannot communicate with their father in English. They have grown in confidence. They have benefited from stability in foster care but they have been waiting now many months for adoption so that they can have a permanent family.

The risk of harm to the children in AB’s care primarily arises from the risk of his relapse to alcohol abuse. It is very difficult to assess the extent of the risk of relapse but the following factors seem to me to be relevant:

AB invites the Court to accept his assurances that he will learn English, that he will fully comply with medical advice and investigations, that he will engage in relapse prevention work, and that he will build a support network amongst new friends. The difficulty in accepting those assurances is that in the past year since the placement orders were made, he has not done those things. The past, it is often said, is the best predictor of the future. I have little confidence that AB will put into action all those assurances. Likewise, his assurance that he will remain abstinent cannot carry much weight given his history of abuse, the stresses he would be under if the children were returned to him, and the lack of support he has to remain sober.

AB has not engaged with professional help which has been available to him to support his abstinence and health. I am not persuaded that he would accept professional help in the future. His approach has been to tackle his issues himself, alone. During his evidence he seemed to struggle to understand why his own efforts were not considered to be sufficient and why he ought to be accepting professional help. Support from the Local Authority might be of some assistance to him as a parent for the children but I do not believe that it would reduce the risk of relapse. AB likes to go his own way and to be self-sufficient. He does not welcome what he regards as interference. He finds ways of disengaging from professional support. I find that he would be reluctant to be open with social workers as to his vulnerabilities, health, and risk of relapsing.

AB has not put any expert evidence as to the risk of relapse before the Court. In part his failure to engage in any long term therapy or relapse prevention work has precluded the admission of evidence from professionals on the risk of relapse. The burden is on him to satisfy the court that the placement orders should be revoked albeit an application like this should not be determined on the basis of where the burden of proof lies. Had he sought out support he might have been able to call on those professionals assisting him to advise the Court of the sustainability of his abstinence. I do not have such evidence. Doing the best I can and weighing all the relevant factors, I find that if the children were returned to AB’s care there would be a substantial risk that he would relapse and recommence abusing alcohol during the first year or so when they were in his care.

If AB were to relapse, that would be devastating to these children who have already been removed from his care once before in circumstances that were harmful to them. AB accepts that if he were to relapse he would be likely to return to drinking excessively. I find that in those circumstances the children would be highly likely again to suffer neglect and harm. If they had to be removed from their father’s care again they would suffer even further emotional harm.

Aside from the risk of relapse there are other factors that weigh against revocation of the placement orders. Mr Trory for AB contended that AB’s limited life expectancy would not by itself be a ground for removing the children from his care and it cannot be a ground for maintain the placement orders. With respect, the life expectancy evidence is one part of the whole picture and cannot be ignored. It is surely of significance that the Court now has evidence that AB’s liver damage is already so severe that his life expectancy is between 10 and 15 years even if he remains abstinent for the rest of his life. He is unlikely to survive his children’s childhoods. It is also a reasonable inference that before his death he will suffer symptoms of liver cirrhosis and require interventions. His health would have an adverse impact on his ability to care for the children and their experience of him as their parent, even if he were to remain abstinent.

It has taken time to identify suitable potential adopters and they have now been waiting for the outcome of this application for some months. They are described as an ideal cultural match for the children and being “gold standard” adopters. There is a real risk that further delay will lead to the loss of those potential adopters which will risk the children suffering attachment issues and emotional harm. These children are approaching the ages of five and four respectively. They need a permanent family and they have waited long enough for that.

Balancing all the relevant factors and considering the welfare of the children within the context of s1 of the ACA 2002, I am satisfied that the placement orders should remain and I dismiss AB’s application to revoke them. It would be contrary to the best interests of the children to revoke the placement orders. It is in their best interests that the orders should remain in force. This outcome will lead to the severing of family ties for the children which must be a last resort. I am satisfied that the continuation of the placement orders is a proportionate interference with the Article 8 rights of the children and AB.

In my judgment the risk of harm to the children on the current placement orders being revoked and the children being returned to AB’s care, even if undertaken with the greatest care and support, are too great for me to take that course of action. AB is unrealistic. His abstinence is to his very great credit and demonstrates a keen motivation to turn his life around and to be reunited with his children. But he has not taken other steps as advised by professionals to secure the continuation of his abstinence. He has not undergone gastroscopy to check for the need treatment for varices even though such treatment could save his life. He has not engaged with relapse prevention work nor has he re-engaged with AA. He has not built a support network. He is not in accommodation that is suitable for the children. He has not learned sufficient English to enable him to communicate with his children. The Court has assurances from AB that he will take steps to remedy these problems but the evidence is that he has failed to do so thus far.

The issue of post adoption contact has been raised. I am invited by AB to consider making an order as to contact. The Local Authority and Guardian oppose such an order being made. I shall not make such an order. The prospective adopters have said that they are open to meeting AB but hesitant about agreeing to post adoption contact. Currently, family time is not going so well that it is necessary to insist that it continues post adoption irrespective of the potential impact on the adoption and the stability of the children in their new family. The potential adopters are agreeable to letter box contact which would provide the children and AB with information about each other and maintain the children’s awareness of their biological family. It is unknown how AB will respond to the refusal of his application to revoke the placement orders. I hope that the prospective adopters will meet AB and that the meeting goes well and that post adoption contact can be agreed but I do not believe that I should not tie the hands of the adopters in this respect. It would not be in the best interests of the children to do so.

I announced my decision in Court at the conclusion of the hearing, reserving my written judgment, so that AB and the proposed adopters would know of the determination at the earliest opportunity. I wish the children and all those who care for them the best for the future. I shall write short letters to the children explaining my decision. Given the change of Guardian I shall leave it to Ms Z to determine whether to give those letters to the children now or to give them to the adopters as and when an adoption order is made, to share with the children as and when they consider appropriate.