SITTING AT EAST LONDON
11, Westferry Circus,
LONDON,
E14 4HD
Before :
HER HONOUR JUDGE MADELEINE REARDON
Re Baby Gordon-Marten (Interim Care Order Hearing)
Between :
A London Local Authority | Applicant |
- and - | |
Constance Marten Mark Gordon Baby Gordon-Marten (Through a Service Manager, Cafcass) | Respondents |
Hearing date: 20 January 2023
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JUDGMENT
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This judgment was delivered in private. Both a reporting restriction order and a transparency order are in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children must be strictly preserved, in accordance with the terms of these orders. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Approved Note of Judgment
Delivered Orally on 20 January 2023
This is an application for an Interim Care Order for a baby whose name, gender and exact date of birth I do not know. The baby’s parents are Constance Dorothea Marten and Mark Gordon. The baby is a party to these proceedings and represented at this hearing by a solicitor. A Children’s Guardian has not yet been appointed and the child’s solicitor is taking instructions from the Head of Service. The application made by the Local Authority is supported by CAFCASS.
The hearing has taken place without notice being given to the parents. The sole reason for that is the whereabouts of the parents and the baby are unknown and the Local Authority has no means of making contact with them. It is believed the baby was born on or about 5th January this year, possibly in a car in the Manchester area. Since then, despite a significant police operation and publicity, the family has not been located.
The background to this application is as follows. This baby is the parents’ fifth child. On 28 January 2022, I made final Care and Placement Orders in respect of their older four children. Within those proceedings, I made findings that the parents presented significant risk of harm to the children for the following reasons:
The father has a conviction for a serious sexual assault perpetrated when he was a teenager and has served a lengthy prison sentence. There is evidence that since then he had avoided engaging with the offender management services and for example has not complied with the requirement to undertake an annual Risk Assessment. On the basis of this and other evidence I found that despite the passage of time since the offence, the risk the father posed to the mother and the children as a violent sexual offender remained, and had not substantially reduced.
I found that the relationship of the parents was one which involved domestic abuse. In particular, I found that there had been a violent incident in November 2019, during which the mother was seriously injured. The mother was pregnant at the time and the father failed to seek medical attention for her, putting her life and that of the unborn child at risk.
I found that the parents had failed to seek medical care during the mother’s previous pregnancies and for their children once born, and in doing so they had put their own need for privacy and secrecy above their children’s health.
I found that the parents had taken steps to evade child protection authorities and to prevent them from carrying out their safeguarding responsibilities towards the children. I found shortly after the mother was injured in 2019, the mother took the then two children to Ireland in an attempt to avoid the Local Authority, who were investigating the circumstances of her injury and the risks to the children.
At the conclusion of the fact-finding hearing, I appealed to the parents to engage with the court and professional child protection services to ensure that there could be a thorough assessment, against those very serious background facts, of their ability to provide safe care to their children. Very sadly, the parents did not engage in those assessments, although initially they had indicated a willingness to do so. The final hearing was delayed due to the birth of the parents’ fourth child and took place in January 2022. At that hearing there was no evidence on which I could conclude that the risks had reduced. For the reasons I gave in my judgment, I made final care and placement orders for all four of the children at the conclusion of the hearing.
It appears that shortly after the last set of proceedings concluded, the mother became pregnant again. The current evidence strongly suggests that she did not seek medical care during the pregnancy and no medical professional was aware of it. If it is correct that the baby was born in a car, as the evidence suggests, then it is also the case that the mother has had no access to medical care around the time of the birth or since.
On 6 January 2023, the police issued a public appealthat has led to the family being traced to Liverpool, then Essex, and London. The parents were last seen on CCTV in East London on 7 January 2023. On 19 January 2023, yesterday, the mother’s father made a public appeal to his daughter asking her to contact the police to assure them that she and the baby are safe and sound. Thus far it has not been possible to locate the family. Publicity has been extensive, and it is not realistic to think that the parents are unaware of the deliberate efforts to find them. It is not easy to evade the police for this length of time with a newborn baby, which would suggest some careful planning on the part of the parents during the course of the pregnancy.
The Local Authority issued proceedings this morning. It seeks an Interim Care Order. The plan for the baby, once located, is that it will be removed from the parents and placed in foster care. The Local Authority’s proposal is there should be supervised contact for the parents on three occasions per week.
The law which I am required to apply is as follows. The Local Authority must first satisfy the court that there are reasonable grounds to believe that threshold criteria in CA 1989, s31 are met: that is, that this baby is suffering or is likely to suffer significant harm, which is attributable to the care being given by its parents not being what it would be reasonable to expect a parent to give. The Local Authority relies on the findings I made in previous proceedings, and the more recent evidence which suggests the baby was born in risky circumstances and has had no medical care, including the standard newborn baby checks. For the purposes of today’s hearing at least I am satisfied that there are reasonable grounds to believe that the threshold criteria are met.
That being the case, in deciding what order to make the baby’s welfare is my paramount consideration and I have regard to the welfare checklist factors in CA 1989, s 1(3). The order sought by the Local Authority will enable it to share parental responsibility with the parents and authorise it to remove the child from the parents’ care into foster care. The court may only approve an order sanctioning the removal of a child from its parents if that course is both necessary and proportionate to the risk, and must consider all options, short of removal, that might address the risk. The court will give particular priority to the need of a newborn baby to remain in the care of its mother if at all possible. The court must bear in mind that at this early stage in the proceedings, when the full evidential picture is not available, it should only make such interim orders as are necessary to ‘hold the ring’ until a final hearing when evidence can be fully heard and tested.
The approach is summarised in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 as follows:
“A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.” [2]
I apply the welfare checklist factors through the prism of that approach. This is a very young baby who is very vulnerable as all newborn babies are. It is completely dependent on its carers to meet all of its needs. The situation of this child is particularly risky, because it appears that the baby has not been seen by any medical professional since birth, and because the parents do not seem to be staying in stable accommodation, but moving from place to place. Meeting the needs of a newborn in those circumstances, in winter, must be extremely challenging.
The parents in the past have been extremely reluctant to seek medical care for any of their children. I have made a specific finding that they have put their own need for privacy above their children’s needs for health care. Small babies can become unwell very quickly. The current circumstances sadly make it even less likely that the parents will be willing to seek medical help if it is needed.
Despite lengthy proceedings having taken place before me previously, the nature of the relationship between these parents is still obscure. I have made some observations about that relationship in a previous judgment and it is not necessary to refer back in any detail today. What I do know is that the relationship has involved serious physical violence perpetrated by the father against the mother, and therefore there is an obvious and significant risk to the newborn of being caught up in a similar incident.
I remind myself of the findings I have made in the previous proceedings that the parents’ care of their older children, when they have been observed in supervised contact, has been of a high quality. They have been gentle, warm and loving towards them. There is no reason to assume that they are currently acting any differently towards this child, who I am sure is very deeply loved. The bond between a newborn baby and a parent, perhaps particularly a mother, is a very close one and the interruption of the bonding process can impact on all aspects of the child’s development. That is why the court will not sanction separation unless there is no other option to keep the child safe.
My aim is to put in place arrangements for this child which cause the least harm and the least possible interference with the parent and child relationship and the child’s right to private family life. I have no idea what the situation of this baby will be once the family is located. I also bear in mind that there is a clear flight risk in this case and that the parents have gone to extreme lengths to remove themselves and the children from Local Authority oversight. In those circumstances it is necessary at a minimum for the Local Authority to hold parental responsibility so that it can step in quickly as necessary to protect the baby once the family is found.
In the previous proceedings the mother was offered opportunities which would have enabled her to remain with her older newborn babies in a safe environment. Those opportunities were not taken up, essentially because the mother was unwilling or unable to separate herself from the father even temporarily. This does not mean though that when the family is found, those opportunities should not be considered again. But it is not possible to know at this stage whether such an option is a realistic possibility or not.
I have considered whether there is a less interventionist order that would meet the risks in this case. In particularly I have considered whether I should make a Child Assessment Order which would enable the Local Authority to arrange for a medical assessment once the baby is found to ensure that it is well and does not need medical treatment. However that order would not grant the Local Authority parental responsibility or enable them to provide safe accommodation for the child. In my judgement that option does not sufficiently address the risks.
In my judgement, it is necessary in this case to make an interim care order and to approve at least a short term plan which will permit the Local Authority to separate the child from its parents and place it into foster care, provided that the Local Authority remains satisfied when the family is located that that is the only option which will keep the baby safe. I will make the order for the duration of these proceedings because there is no other option when the court does not know when the baby will be found. However I will direct that I should be notified immediately when the baby is found and the application should be restored to court within three working days, which will give the parents time to get legal representation and to prepare for that hearing. At that hearing the need for an Interim Care Order will be re-considered from a ‘clean slate’ starting point and the parents have the opportunity to make whatever representations they wish to make about the need for an order and their plans for their baby. I make it clear to the parents, as I have on previous occasions, that I will maintain an open mind regarding all options which will secure the safety of this vulnerable child without the necessity of separating it from its mother.
That is my judgment.
This Note is approved.
HHJ Reardon
