Stockton On Tees Borough Council v T & Ors

On 10^th July 2024 this matter returned back into my list for judgment after 3 days of evidence and submissions. I informed the parties that I had formed the view that it was appropriate for my judgment, then prepared from notes, to be formalised in a written judgment. However, I went on, with the agreement of the parties, to set out my decision and how I intended to progress the case. The following paragraphs below, at 2 to 14, are what I said.

In respect of C, I have determined that the right placement for her, so as to meet her welfare needs, is with her father, B.

For reasons that I set out within my judgment, I approve a plan whereby the mother’s contact will reduce to weekly contact. I have also determined that, for at least in the short-term, the mother’s contact ought to remain supervised.

I will make a Supervision Order for a period of 12 months in favour of the local authority.

In respect of D, I have carefully considered the issue of harm, risk of that harm occurring, and the consequences should that harm arise. I have fed that assessment of harm into my overall welfare analysis as I have considered the 3 realistic options that I have identified:

When I have done so, I am not satisfied on the evidence before me, that nothing short of adoption will do so as to meet D’s welfare needs. As such, I do not approve the Local Authority plan of adoption.

Nor do I, when I have analysed the evidence before me, consider that an adjournment to allow the mother to undertake work is in D’s best interests.

Instead, I have determined that with the right package of support put in place, by professionals, by family and friends, the risks of harm associated with D’s placement in his mother’s care can be mitigated to a level whereby he can be rehabilitated back into the mother’s care.

I will adjourn this case for consideration of my judgment and will invite the local authority to prepare a support plan which will include safety planning, crisis management strategies and work for the mother to engage with, including parenting work.

I will list the matter back before me on 30^th July 2024, allowing just over 2 weeks for that support plan to be prepared.

I will direct an advocates meeting next week to allow discussion of my judgment and allow the parties to consider what needs to be included in that support plan.

It is my hope and expectation that the Local Authority will accept the Court’s assessment of risk in this case and that the hearing on 30^th July 2024 can look at the practicalities of how a rehabilitation plan will work and under what legal framework.

I do not agree that the L’s contact can progress to unsupervised contact. Although I have noted positive aspects in respect of L, a proper assessment is required by the local authority in due course before consideration could be given to that. However, I am clear in my view that L plays an important part of the support that will be available to the mother in her care of D. I would hope to see a plan produced which allows L to play an active role in supporting the mother, including attending at her property and assisting her if required, not only on an emotional but also a practical level.

I have considered whether C’s proceedings need to be delayed any further, given my determination in respect of her long-term care. However, I have formed the view that issues of contact involving the mother as well as the siblings, are inevitably tied to support plans for rehabilitation. In my view, it is right that B remains involved in those discussions and, for the short delay it will cause, C’s proceedings ought not be concluded in advance of 30^th July. That position can be reviewed on the 30^th July 2024.

This case is about 2 children, C who is 8 years old and D who is 3 years old. They are represented through their children’s Guardian, Ms Patterson.

The children’s mother is T. I will refer to her hereafter as “the mother” hereafter. C’s father is B. D’s father is unfortunately deceased. His name was H, and the circumstances and ongoing impact of his death are a significant feature of this case.

The maternal grandmother is also a party to these proceedings. Her name is L (referred to as “maternal grandmother” hereafter).

The local authority issued these proceedings on 21^st July 2023. As I give this judgment, the proceedings are therefore 11 months old. The basis upon which the Local Authority issued proceedings is set out in a threshold document, which is, for the most part, accepted.

Before I come on to that threshold document, it is important to give some context as to how the point was reached whereby the Local Authority were issuing public law proceedings. Before I do so, I make the observation that the Court would have been assisted greatly in this case by the production of a chronology. It is exactly this type of case, involving specific issues, being raised on specific dates, over a significant period of time, where plans have changed, that a chronology dating back pre-proceedings would have been extremely helpful. As it is, I have pieced together the chronology from the various different pieces of evidence I have in the papers. As I have done so, I have applied the civil standard in my determination of that factual background and have applied the relevant legal principles, to which I will return.

When the mother was 12 years old, she lost her nana to cancer. Although some time ago, it is clear to me that her passing had a significant impact upon her. The mother was already experiencing difficulties in school, reporting physical bullying and general unhappiness. She was diagnosed as being dyslexic, but the issues were only compounded by lengthy absences from school and home moves, due to the bullying. However, when her nana died it appears that her unhappiness grew. She would later say to the psychologist instructed in this case:

“I’ve had anxiety all my life and depression started getting bad from 12 when my nana died…

My anxiety has always been there. My depression, I know it got bad after she died. I was depressed when she was ill but not as bad. Body dysmorphia, poor self-image that caused that, result of the bullying.

The mother self-reports that shortly thereafter, aged 13, she started drinking alcohol which eventually escalated to drinking during the week as well as during the weekend. Around this time, aged 13, the mother also reports that she was sexually assaulted.

When the mother was approximately 18 years old, she took an overdose. It appears that she then overdosed at least a further 2 times. She had been prescribed a number of different anti-depressant medications which she reported were not assisting her mental health.

The mother was 19 years old when she met B. Although their relationship only lasted 6 months, the mother fell pregnant and she gave birth to C in January 2016, when the mother was 20 years old. Although there are difficulties reported within the relationship, both during and after separation, it appears from the evidence that I have before me that there were no issues being raised in respect of any deterioration on the mother’s mental health or her ability to meet C’s day-to-day needs. The only Local Authority involvement seems to be in respect of an incident between her and B, which resulted in C falling out of her pram. Nothing I have read suggests that the local authority was raising concerns at that point in respect of the mother’s care of C.

However, although there does not appear to be any significant decline in the mother’s mental health during this period, it seems that the mother’s underlying issues remained. From the papers it seems that the mother was diagnosed with an emotionally unstable personality disorder in around 2019 or 2020.

It was also around 2018/2019 that the mother met H. The mother had met him whilst at college, when C was around 2 years old, where she studied art and design, receiving a distinction and level 2 qualification. She succeeded at college despite her underlying mental health difficulties and the stresses of caring for a young, and no doubt demanding, toddler.

It seems that the relationship between the mother and H was a positive one. I have read nothing to suggest otherwise. D was born to the relationship and the mother, H, D and C all lived together. The mother and H eventually got engaged. They were due to get married in 2022.

In February 2022, on a day unremarkable except for the tragedy that would follow, the mother woke up on a morning to find H lying dead beside her. D was also in the bed with them. The mother called 999 and attempted CPR, but, without success. His death was unexpected and sudden, he died from pneumonia, obesity, and an undiagnosed lung condition.

I have no doubt that the loss of H impacted upon the mother significantly, especially in the context of her earlier life experiences. She was supported by the maternal grandmother, with whom she eventually went to live with. Whilst C appears to have been supported by a counsellor at school, the mother did not attend any bereavement counselling. She explains that at first she was informed to wait a little while, and then when she did try to access the counselling, was told that there was a lengthy waiting list.

For the next year, there does not appear to have been any significant deterioration in the mother’s mental health. However, about a year after H’s death, the mother entered into a relationship with a man called K. Her entering into a relationship with K also marked the start of her regularly smoking cannabis with him.

The mother says in these proceedings that everything came to a head one year on from H’s death. The anniversary of his death had just passed, the mother was regularly smoking cannabis, she felt that her mother was not supporting her as much as she had been, due to work commitments. There had also been an incident in August 2022 whereby the mother and maternal grandmother had been involved in a physical altercation, and whilst not taking place in front of the children, had taken place in the home where the children were upstairs.

Although the papers are not clear as to chronology, I am satisfied to the requisite standard that the mother is right when she says that an incident between her and C then took place.

On the lead up to May 2023 the mother had been struggling to get C into school. She would tell me in evidence that C would run and hide from her when she was trying to get her ready, and having to also look after D. There had been issues raised by school around C’s attendance and her coming in late on a morning. On 5^th May 2023 the mother accepts that whist trying to get C ready for school, she slapped C on the arm in frustration. It seems that the mother informed the school that very morning that she had done so, which led to a safeguarding referral. That was the first, and last, time that any concern has been raised in respect of the mother physically chastising either C or D. It was at that point the Local Authority became involved.

It seems that the mother recognised that she was struggling and agreed for C to go and stay with her father, B. C has remained with B ever since. The mother told me in evidence that things then became too much for her. She told me that she decided to start an overdose process, which she expected to take place over a number of days with an increase in unprescribed medication. As she started that process, D was in her care. However, as the days went by, she told me that she had made arrangements for D to be looked after by the MGM. Although she thought that the overdose process would take 7 days, she ended up telling the social worker and her family action worker what she was doing. She was taken to hospital but shortly discharged home because the amount of medication she had taken was not life threatening and had merely made her unwell.

However, by the 4^th June 2023, the mother’s mental health had deteriorated to the point that she was detained under the Mental Health Act 1983 and placed in Roseberry Park. From the documentation I have read including the description provided by the mother to professionals, it seems that the mother was experiencing an emotional and mental breakdown.

The mother remained in Roseberry Park until around 24^th July 2024; some 7 weeks (Footnote: ¹). Her cannabis use ended on her admission to Roseberry Park. Hair strand testing took place during the currency of these proceedings which indicated that the mother had not been using cannabis and there has been no concern raised by any professional that she has resumed use.

And so it was on 21^st July 2023, whilst the mother was still residing in Roseberry Park, that the Local Authority issued proceedings. The threshold relied on by the LA is:

The matter came before me for an urgent hearing on 21^st June 2023. At that stage D was in the care of MGM but the LA were raising concerns about MGM’s ability to protect D, and MGM’s own daughter J, from risks associated with an ex-partner called Q.

I made an ICO I respect of D and adjourned the removal hearing for a contested hearing I also made a CAO I respect of C in favour of B.

At a hearing on 24^th July 2023 those Orders continued, with the inclusion of an interim supervision Order in respect for C. It was on that date that the Court was informed that the mother was no longer an inpatient at Roseberry Park but that she was staying there until suitable accommodation could be found. The Local Authority did not seek to remove D from MGM’s care, on the basis that an exclusion Order was made preventing Q’s attendance at her property.

On 9^th August 2023 the case was timetabled through to Final hearing on 16.01.2024. The Court approved an application for psychological assessment of the mother by Mr Marshall as well as HST testing of the mother, to which I have already referred. The MGM was also joined as a party to the proceedings.

Mr Marshall filed his substantive report dated 12^th October 2023. I will consider the contents for that report in greater detail later in this judgment.

The Local Authority filed its final evidence on 10^th November 2023. The analysis of the mother’s ability to care for both or either of the children relied heavily upon the conclusions reached by Mr Marshall, quoting large parts of his report. A positive special guardianship report had been prepared in respect of the MGM to care for D. Therefore, the plan for C was for her to remain in the care of her father B, under a CAO and the plan for D was for him to remain in the care of MGM under a CAO. By the time of the IRH the plan was for both children to be made subject to 12m SO. In respect of the MGM, it was noted that the MGM was currently engaged in proceedings relating to her own daughter, J.

At the Issues Resolution Hearing on 3^rd January 2024, the interim care order held in respect of D was discharged and replaced with a CAO in favour of the MGM. At that point, the mother was agreeing that D, alongside C, should remain in the care of MGM.

On 11^th January 2024 an urgent application for a hearing was made by the local authority. That application was based upon information received that the MGM had been in contact with Q, alongside an allegation that MGM had breached the exclusion requirement made back on 24^th July 2023.

The matter came back before the Court on 12^th January 2024 for an urgent hearing. D was placed back into the care of the local authority with the CAO in favour of MGM being discharged. D was removed from MGMs care and placed in local authority foster care, pending a contested hearing.

At the return date, MGM, then living in a refuge, did not seek D’s immediate return. The proceedings were extended and re-timetabled through to a final hearing on 10^th April 2024.

On 19.02.2024 the Court received a further application made on behalf of the Local Authority for a directions hearing. It was confirmed that the Local Authority plan was now one of adoption. However, due to availability for dates for an adoption medical and Agency Decision Maker approval, the Local Authority were saying that the current timetable could not be complied with.

On 4^th March 2024, the proceedings were extended yet again, with the final hearing being listed on 26.06.2024, time estimate 3 days. At that stage an application for an Independent Social Worker to undertake an assessment for the mother was approved on the basis that no assessment had been undertaken of the mother, because she had previously supported the Local Authority’s plan for MGM to care for D, and that the plan had now changed to one of adoption. Poppy Sinclair was identified as the independent social worker. She produced a substantive assessment dated 21^st May 2024 and an addendum on 13.06.2024. I will consider that assessment in due course but suffice it to say at this juncture that Ms Sinclair’s opinion was that the mother would be able to care for one child at this time and that the mother should not be ruled out at this stage.

On 25.06.2024 I was alerted, as Designated Family Judge, that due to unforeseen judicial unavailability, a tribunal was not available to hear the case on 26^th June 2024. Concerned by the delay that had already been caused in this case, I listed the case before me in my list on 26^th June 2024 for mention. I was able to make arrangements with the court listing staff, to move work already in my list and to enable me to hear this case as a final hearing the next week. And so it was that I have heard the final hearing listed on 1^st July 2024.

The Local Authority plan for C is that she remain in the care of B, underpinned by a Child Arrangements Order in his favour for a period of 12 months. The plan is for the mother’s current contract to be reduced from 3 x per week to 1 x week.

That is a plan which is agreed by all parties, save for the mother (supported by maternal grandmother) in respect of the issue of contact. The mother had only recently changed her position in respect of C, agreeing to C living with B. However, the mother’s position is that she would like to work towards a Shared Care arrangement with B. To that end, she does not agree that there should be a reduction in her contact.

The Local Authority plan for D is one of adoption. That is a plan supported by the CG. B has no role to play in respect of the placement decision in so far as D is concerned. The mother, supported by the maternal grandmother, argues that D ought to be returned to the mother’s care. In submissions, counsel on behalf of the mother clarified that mother’s primary position was that D ought to be returned to her care forthwith, but her secondary position was that further time ought to be allowed for the mother to engage in work to better her position.

Although counsel has not directed me to any specific statute or case law, in determining this case I have reminded myself of the relevant legal principles engaged in applications of this nature.

Each child’s separate welfare is my paramount consideration. With respect to both C and D, I must have regard to the general principle that any delay in determining the issues is likely to be prejudicial to a child’s welfare. That is specifically set out within s.1(2) of the Children Act 1989.

I must have regard to what is often termed “the least interventionist approach”. I must only make orders if they are necessary and proportionate, and I must have regard to the Article 6 and Article 8 rights of each family member. When I consider Article 8 rights, that also includes each child’s Article 8 rights.

When I look to the proposed plans for C’s future, I must have regard to the welfare checklist, set out in s.1(3) Children Act 1989

As the local authority plan for D is adoption, additional considerations also apply in his case. My paramount consideration is not simply D’s welfare but his welfare throughout his life. As such, I must have reference to s.1(2) of the Adoption and Children Act 2002 and it is the welfare checklist at s.1(4) of the 2002 Act which applies.

One of the matters that I must consider within both the 1989 and 2002 checklists, is any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering. In public law proceedings, the litigation is primarily centred around the identification, assessment and risk of harm. In accordance with Re F (A Child: Placement Order; Proportionality) [2018] EWCA Civ. 2761 approved in Re H-W (Children) (No. 2) [2022] UKSC 17. It is important therefore to consider in this case:

It is only having undertaken that exercise that the realistic options can be weighed up against each other and principles of necessity and proportionality applied.

Before I can make final public law orders for either child, I must be satisfied that the threshold as set out within s.31 of the Children Act 1989 is crossed. That threshold has been conceded by the mother, albeit some slight detail of the threshold remains in dispute.

When I consider findings sought by the Local Authority, be they threshold or welfare findings, the burden is on the local authority to prove those findings to the civil standard, that is on the balance of probabilities.

I am satisfied that those matters already agreed in the LA document are not only made out in the evidence to the requisite standard, but that they also meet the threshold for the making of final public law orders. No party has tried to persuade me otherwise. I will deal with the outstanding disagreement in due course. However, just because the threshold has been crossed does not mean that public law orders automatically follow.

What I must then apply is a welfare analysis as to what order, if any, best meets D’s and C’s welfare and whether it is necessary and proportionate to make any such order. If I am satisfied that threshold is crossed then I must go on, essentially, to conduct a welfare analysis of the competing realistic options for both children.

In doing so, the principles I must apply to the local authority’s applications for care and placement orders in respect of D are definitively stated in two cases: Re B (Care Proceedings: Appeal) [2013] UKSC 33 and Re B-S [2013] EWCA Civ 1146. I have reminded myself of the contents and guidance contained within those cases.

In Re B-S, the President said that the court must have in mind at every stage of the process the following matters:

I may not make a placement order in the absence of the parents’ consent unless I am satisfied that each child’s welfare require me to dispense with the parents’ consent and that is contained within s.52 of the 2002 Act.

I have also reminded myself in this case of what has later been described as the wise and powerful words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

“Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity, and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

I have had the benefit of reading not only the Court bundle and updated contact and police records, but also from hearing from the following witnesses:

The evidence concluded on the afternoon of 3^rd July 2024. I then heard submissions from all parties and adjourned to give judgment today, 10^th July 2024.

Although the expert evidence is an important part of the evidence before me, I remind myself that it is but one piece of the evidential picture, which I have the advantage of considering as a whole. It is often said that the expert advises but it is the Judge who decides.

There have been two independent experts who have provided assessments in this case, the psychologist Mr Marshall and the independent social worker, Ms Sinclair.

In closing submissions counsel on behalf of the local authority submitted that the Local Authority relied on the opinions expressed by Mr Marshall’s evidence, specifically that there would be a significant risk of harm, if a child is placed in the mother’s care. It is important therefore for me to look at exactly what Mr Marshall has opined. The following comes from Mr Marshall’s executive summary (those parts in bold are my own emphasis):

Later at para 27:

Further from para 34 into 35:

And then finally para 38:

In my view, Mr Marshall is setting out the difficulties that the mother faces, and opining that there is a risk that a child in her care would be exposed to those difficulties but particularly so where there is a deterioration in respect of the mother’s mental health. His opinion in respect of the children suffering harm, as a result of risk of exposure, is limited to “some degree” of emotional harm and “may include physical harm”, on the basis of the single incident involving the mother slapping C in May 2023.

That report was prepared in October 2023. For context, the mother had been discharged from Roseberry Park and was living in hostel accommodation whilst more permanent accommodation was identified. Dr Marshall had opined that due to the pervasive nature of the mother’s difficulties, the mother should engage in a longer-term therapeutic approach such as Dialectal Behaviour Therapy (DBT), typically delivered over the course of approximately 6 months. He also suggested that additional intervention could be provided to meet her individual needs to focus on the mother’s experience of trauma with a cognitive behavioural therapy (CBT) approach

Following the cautiously positive independent social worker assessment from Poppy Sinclair, Mr Marshall was asked to prepare an addendum. He did so on a paper-based exercise, having not seen the mother since he prepared his substantive report. I note that his second appointment with the mother was on 2^nd October 2023; now 9 months ago. The addendum is dated 26^th June 2024 and I quote from it:

Mr Marshall continues, having reflected on the positive aspects but also of some of the additional concerns raised by the local authority:

Before I move on to the independent social worker’s evidence, it is important for me to note that the concerns around the mother’s lack of engagement comes from evidence filed from a Senior Community Psychiatric Nurse at Stockton Treatment and Intervention Team, situated at Wessex House. In that report dated 24^th June 2024, I am informed of the difficulties that the mother initially faced upon entering Roseberry Park in early June 2023. Those difficulties included showing paranoid delusions and behaviour with hyper vigilance of her surrounding environment. It is noted that the mother was using illicit substances prior to admission but that she remained abstinent from substances and started to make improvements. Upon discharge from Roseberry Park, she remained involved with the team until she was discharged from secondary mental health services on 2^nd May 2024. When she was discharged there were no concerns being expressed about the mother’s presentation and she remained stable with her mental state, continuing to take medication.

Although the service was aware of Mr Marshall’s opinion in respect of DBT the service did not, for the reasons set out in their report, consider that the mother met the criteria for DBT.

However, an offer was made by Wessex House for behavioural activation in advance of the possibility of engaging with CBT work. Despite multiple attempts to engage the mother in undertaking that work, the service says that the mother did not engage in attending appointments. She was therefore discharged from their psychological team due to non-engagement. It is not clear to me at what point in the chronology that the mother did not engage with that process. The mother tells me from the witness box that it was at a time when she had understood the LA plan was D’s placement with MGM. The Local Authority say that at the point of non-engagement, the mother was already aware that adoption was a potential plan for D at the time. I have heard evidence from the social worker as to the attempts made to try to get the mother to engage with services. However, following the change of plan, I am aware that the mother has made some attempts to engage in CBT with IMPACT. Again, there is some confusion in the papers as to what has happened in respect of that referral. The social worker final evidence dated 3^rd June 2024 suggests that the mother is on a waiting list for CBT, but enquiries made by Ms Sinclair indicated that she may not have been. At the point of this final hearing, I am told that the mother has been referred and is awaiting a start date.

Ms Sinclair produced a substantive report dated 21^st May 2024 and an addendum dated 13.06.24. At the time of preparing both reports, she had the benefit of considering Mr Marshall’s report from October 2023.

Her assessment involved 5 assessment sessions with the mother, with the last taking place on 6^th May 2024. She also observed 3 supervised contact sessions, the last taking pace on 15^th May 2024. I quote selections from her report:

From her observations of contact, Ms Sinclair opined that, in general, her observations of the family time with the mother were positive. She raised some concern about conversations about B being framed negatively and the need for the mother to be mindful about the way conversations take place in front of the children. Although there were no significant concerns during contact, Ms Sinclair noted that, at times, the mother struggled to manage her time between the competing interests of D and C. Whilst not raised as a direct criticism of the mother, Ms Sinclair does raise concern as to why consideration was not given to the mother having some quality contact with D alone, especially once the plan for D had evolved into one of adoption.

In her conclusions, Ms Sinclair says at para 116 onwards:

Whilst expressing disappointment that the mother had not completed any specific work following Mr Marshall’s report, Ms Sinclair notes that the mother has positively engaged with her CPN, is taking her medication and that there has been no further mental health breakdown or significant deterioration in the mother’s mental health, for approximately 12 months.

As such, at para 121 she opines:

Ms Sinclair was provided with additional information and asked additional questions arising from her report which she answered in her addendum. She did not move from the views she expressed within her substantive report.

In her evidence to me, Ms Sinclair remained of the view that the mother should not be ruled out as a sole carer for D. She told me that she was concerned about the information indicating the mother’s lack of engagement with the work suggested by Mr Marshall. She told me that she agreed with Mr Marshall, in that it was important that the mother undertake the work recommended. However, she reflected upon the progress that the mother had made since her decline in early June 2023 and her engagement with professionals involved with her mental health, if not specific courses, since that time. Ms Sinclair was reminded in cross-examination that the mother’s mental health seems to have been stable but that it has been at a time when neither child has been in her care. Ms Sinclair again reflected that it could not be said that significant stressors were still not in play; for example, the removal of D into foster care, a change of plan to one of adoption and the ending of a romantic relationship during the proceedings.

I found Ms Sinclair to be a balanced and fair witness. She told me that in her view this was a finely balanced case. She did not minimise the LA concerns around the mother’s mental health, but ultimately nor did she accept that the mother’s lack of engagement in specific work identified by Mr Marshall, meant that she could not safely care for D. She accepted that the mother needed to do more work to deal with the long-term issues, but despite probing cross-examination from the local authority and on behalf of the Guardian, she was not moved from the view that the mother was able to provide D with good enough care.

I then heard from the social worker. Before I consider her evidence, it is important that I set out what was said in Re B-S [2013] EWCA Civ 1146.

Referring to highlighted cases where a proper analysis of the options by the relevant social work team were either missing or inadequate, Sir James Munby, then President of the Family Division said:

Over the last few years, I have become increasingly concerned that the clear guidance set out in Re B-S, which led to the term “Re B-S analysis” has either been forgotten or is no longer forming part of the training that social workers receive. I have noticed a gradual slide towards a linear analysis, often without any proper analysis of the pros and cons being included at all.

I am afraid that this case is one such case.

In the final social worker statement dated 24.05.2024 there is at page 34 the “Realistic options analysis”. That is the way that it is phrased in the table of contents and that is the way it is headed at page 34. That realistic option analysis commences with a table with 3 columns. The first column is titled “Long-term placement options explored”. Under that header are 6 options:

The next column is headed: “Is this option realistic and viable or has it been discounted?”. In that column every option has been marked “Discounted”, except for the Local Authorities settled plan that C be placed in B care and that D be made subject to a Care and Placement Order. Those two options, and those alone, are labelled “realistic”.

The final column is headed: “Reason(s) why it is viable or why it has been discounted?” What then follows under each option is either a justification as to why it has been either discounted or a justification as to why it is realistic. There is absolutely no analysis of the pros and cons of each option. As I say, it is simply a justification of the column 2 marking. For example, under the discounted option of C remaining in the care of the mother column 3 reads:

“The mother has not completed any of the recommended work in respect of her mental health and it is the view of the local authority that this option would not provide C with any safety and that she would be at risk of significant harm. The work the mother needs to complete is not within C’s timescales and there is no order that would enable C to be safe in her mother's care”

It is with considerable alarm that I then read that the “analysis” for D remaining in the mother’s care, is identical, word for word, except for replacing the name C, for D.

Turning to the only realistic option for D identified by the Local Authority, that being adoption, the third column reads:

After the table the LA’s “preferred and proposed placement option” is set out. In respect of D, it reads:

That justification is an echo of what was said earlier in the statement, before reaching the realistic options analysis, following consideration of the strengths and weaknesses of the mother’s parenting:

“The Local Authority feel that a plan of adoption is the only viable option to support D. The Local Authority are concerned that the mother did not engage in NHS CBT which has now led her to be on the waiting list for IMPACT, this waiting list is up to twelve months, and this is simply not within the timescales of D. D needs to be able to have safe and consistent care from the adults around him [my emphasis]”

I am afraid that the final social worker statement is lacking in terms of a proper analysis of the pros and cons of the options available to the Court for D; placement with the mother or a plan of adoption. Even where there is some rudimentary analysis of the cons of adoption, any weight to be applied to such analysis is lessened due to the linear approach having been undertaken in respect of the options.

It is simply not good enough.

I raised my concern that there was a deficiency in the analysis with the social worker when she gave oral evidence. To her credit, she accepted that a proper Re B-S analysis had not been set out within her final evidence. I then went through the process of identifying with her in her oral evidence, the pros and cons of each option in respect of D. My concern is not that she was unable to articulate the clear pros and cons for each option, but rather the lack of evidence that the process had been undertaken in a non-linear way before she reached her conclusion on final planning.

The social worker informed me that, as set out within the final evidence, the Local Authority’s view had been reached on three main strands:

I have used the words “lessen the risk to the children” intentionally in (b) above. Like the submissions made by the local authority in closing, I formed the impression from the social worker’s oral evidence that a risk of exposure to the mother’s underlying mental health presentation, had been read as a risk of a child suffering significant harm in the mother’s care. And that without a proper analysis as to how “risk of exposure” converted to “risk of harm”, and what that harm looked like, then inappropriate weight was placed on his reporting.

In respect of the evidence of the efforts made by the social worker to engage the mother in attending pre-CBT work, I accept her evidence to the requisite standard. Although I am not clear as to the dates, I do accept that this social worker was trying to ensure the mother attended therapeutic work.

The social worker also raised some concern in respect of the mother’s contact with the children. Primarily, the concern expressed was that the family time appeared at times to be chaotic, with the mother unable to implement boundaries or share her attention between the two children. The latter is pleaded within the welfare findings sought, as the mother being inconsistent in her ability to provide emotional warmth. The social worker was able to point to a number of examples within the evidence to support that concern. Under cross-examination, the social worker accepted that the mother had, for a significant period of time within the proceedings, been suggesting that her contact could be separated or managed differently. The social worker told me that consideration had been given to how the contact might be managed, including separating out the siblings contact with the mother However, I was told that there is a long waiting list for family time and the resources were not available to allow contact between, for example, D only and the mother to take place. The social worker also accepted in cross-examination that the evidence was not before the Court to say that the mother could not meet D’s needs alone in contact. She said:

“I can understand why the Court might think that is a gap”

I found the social worker to be a genuine and honest witness who was only trying to assist me in her evidence. However, I formed the view that significant reliance was placed on the opinion of Mr Marshall, perhaps inappropriately, and that such reliance had steered the final planning for the Local Authority without an adequate realistic options analysis being undertaken.

I am very alive to the pressures placed on social workers in the current working climate and what a difficult job it is, often without expressed praise or gratitude. I do not want any of the concerns I have raised to give the impression that I consider the allocated social worker to have done a poor job in this case. When I consider the case papers, I have had no cause for concern about her social work on the ground. My concern is that this allocated social worker, having qualified in 2022, may not have been taught in training the very important lessons set out by the Court of Appeal 11 years ago. What is important moving forward, is that the Court is provided, in each relevant case, with a full and reasoned Re B-S analysis, so that the Court, and parties, can understand how the Local Authority has reached the conclusions it has.

I then heard from the mother. The mother presented as very anxious from the witness box. I have reminded myself of the mother’s particular vulnerabilities and have been careful not to assess the mother from the witness box based solely on her presentation.

The mother told me that things had reached “a head” in May 2023, where everything simply became too much for her. She told me of the progress that she had made at Roseberry Park. She told me about the work she had done with her mental health team, in particular one worker Georgina, with whom she had a good relationship. She told me that she felt that she was being given different messages as between Mr Marshall and the mental health team who were engaged with her on the ground.

I was initially confused by the mother’s evidence. She told me that she understood that she needed therapeutic input and then, later, told me that she thought that she was coping well and could care for D. She told me that she did not need to do DBT, because her mental health team said it wasn’t right for her. She told me that she didn’t need to do CBT as it was more about coping strategies and not about counselling. She said:

The mother told me that she hoped to access counselling through Harbour. It was counselling which she said she thought might be the best help for her.

The mother told me that she had already undertaken CBT courses in 2017, 2018 and 2019. She told me that she understood what CBT taught around coping strategies and that was not what she needed. She told me that she had worked well with her mental health team who had helped her with coping strategies and recognising her triggers.

Upon reflection, I consider the mother was telling me that she accepted that she needed support going forward, but that the work identified by Mr Marshall was not necessary to allow D to return safely to her care.

I was also unclear about the mother’s evidence in respect of the plan for C. I was told at the commencement of the hearing that the mother accepted the plan in respect of C. However, during her evidence the mother told me that she thought she could also care for C. I formed the impression that the mother’s position had changed. However, in submissions, it was made clear on the mother’s behalf that it was still her ambition, at some point in the future, to reach a position whereby she was sharing C’s care with B. However, she accepted that C needed to be with B at this stage.

I took from that submission that the mother did not want to say that she did not want C to live with her. I accept that she does want that very much. However, I understand what a hard thing it must be for the mother to say that she wanted to prioritise D and her concern about how that might make C feel.

The local authorities interpretation of Mr Marshall’s evidence was clear in the way that questions were framed of the mother in cross -examination. I noted the following exchange:

As I have already set out, that is not the opinion expressed by Mr Marshall, but rather the position of the local authority.

There was one area of particular concern from the mother’s evidence. At the start of the final hearing I was provided with a letter, produced by C, indicating that she wanted to live with her mother. When it was explored in evidence as to how that letter was produced, the mother told me quite candidly that she was concerned that C ought to be listened to and had suggested she write me a letter. The mother did not seem to understand the pressure, especially at this later stage in proceedings, that the suggestion would put on C. There were other elements of the mother’s evidence in respect of C which caused me concern. For example, when asked about the appropriateness of conversations, or things said to C in contact, the mother appeared to believe that because C is 8 years old, she should only be told the truth.

Whilst I accept the importance of a parent being truthful to an 8-year-old, it seems to me that the mother did not seem to grasp the nuanced way that things could be discussed, or closed down with an 8 years old, so as to protect them from what you might consider to be the truth. I was concerned that the mother did not seem to recognise that what she said to C, in particular in respect of B, might negatively impact upon her.

Finally, I heard from the children’s Guardian. Ms Patterson had produced a final analysis dated 18^th June 2024. The Guardian supports the LA plans for C and D. In respect of the former, she had suggested that the Supervision Order ought to be 12 months in duration; something the Local Authority took onboard and agreed.

The Guardian’s analysis raises a number of understandable concerns in respect of the mother’s engagement with services, following on from Mr Marshall’s report, and despite what seems to have been support put in place by the local authority to encourage her to engage.

The Children’s Guardian did produce a very helpful and full Re B-S analysis, weighing the pros and cons of each option before arriving at her conclusion. She refers to Re B-S specifically within her analysis and stresses the high nature of the test that must be met before a Court can sanction a plan of adoption. Having considered all options, she has formed the view that nothing but a plan of adoption for D will do, so as to meet his welfare needs now and into his majority.

Ms Patterson maintained that view in her oral evidence. She accepted all of the positives put on the mother’s behalf but told me that her view was that until the mother had undertaken the work recommended by Mr Marshall then it would be unsafe to place D in her care. When asked whether she was encouraged by the mother’s engagement with her mental health team, Ms Patterson said:

I take Ms Patterson to be raising understandable concern about the mother not engaging with Wessex House, to the point that they discharged her from the psychological team.

When it was suggested to Ms Patterson outright, that this was not a case that met the test for adoption, Ms Patterson responded:

Ms Patterson is an experienced and well-respected Guardian who often appears in my Court. I am impressed with the analysis that she has undertaken in reaching the view that she has. But I remind myself that the evidence of the Guardian is yet another piece of the evidential picture, which I must consider and feed into my overall analysis alongside all of the other evidence in this case.

As I have indicated earlier in this judgement, I am satisfied that the conceded parts of threshold are made out on the evidence and meet the threshold under s.31 Children Act 1989. I turn to those matters which are not accepted by the mother.

I understand the mother does not agree that finding on the basis that the chronology is wrong. As the mother told me in evidence, and as she told Mr Marshall, the incident with C had occurred first. She agreed for C to stay with B, albeit she is clear to me in her evidence that she did not consider it was to be long-term. It was after that when the mother started to take medication over a number of days before finally telling the social worker what she had done. As I have already indicated, the LA case on the chronology is unclear and I prefer the evidence from the mother. I make the following two separate findings instead, satisfied that they are made out to the requisite standard:

The evidence from this pleading comes from a conversation that the paternal grandmother has with a social worker on 12.05.2023. This was at a time when C was in the care of B following the incident between the mother and C on 5^th May 2023. Paternal grandmother tells a social worker that C has informed her that the mother attended at the school fence and had spoken with her. The recording sets out the following: C became upset and crying. C advised that mummy had said to her that mummy was the most important person in the world and that C cannot survive without her mummy. C became visibly upset and crying and advised that she believes mummy or herself may die if they are not together [my emphasis].

The mother accepts that she attended at the fence, told C that she loves her and wants to live with her, and that making such comments were wrong and will have caused C emotional harm. When asked by Mr Marshall about that incident, the mother was adamant that she would not have said that C could not survive without her mummy.

I have read the above recording carefully, upon which the Local Authority rely. I have my concerns from that recording as to whether the paternal grandmother is saying that it was the mother who said that C “cannot survive”, or whether it was C who was saying she “cannot survive” without her mummy. However, even if it was the latter, my view is that the mother’s attendance at the school fence, no doubt in an emotional state resulting, as the mother told me in evidence, with C becoming upset and distressed, was an emotionally harmful thing to do. On balance, I am satisfied that the following finding is made out to the requisite standard:

Although the mother accepts the factual basis of the finding, she does not accept that the altercation placed the children at risk of physical harm. The mother accepts that the children were in the house, upstairs, whilst the altercation took place downstairs. The mother told me that the altercation lasted about 2 minutes and the children never came down.

The local authority submits that if the children had come down during the altercation, then they may have been caught up in the altercation and physically harmed. I am not satisfied that the Local Authority have proven to the requisite standard that there is a real risk of that happening in that hypothetical situation. I am satisfied that the proportionate finding is that:

Finding 1 (i) through (iii) are taken verbatim from Mr Marshall’s substantive report. In so far as they relate to his assessment as of October 2023, on balance I accept Mr Marshall’s opinion.

Findings 2 and 3 are pleaded by the Local authority as a consequential finding from those paragraphs that the children would be at risk of significant harm if they were to be returned to the care of the mother, including in circumstances where the mother has failed to engage in CBT. I will discuss those findings shortly at paragraph 149 onwards, as I identify the harm in this case and consider the risks and consequences of it arising.

Finding 4 is pleaded as follows:

That finding is a matter of record. I have carefully considered the judgment of DJ Lalas from 13^th March 2024 and am satisfied that the finding is made out, in so far as it relates to either of these two subject children residing in the care of the maternal grandmother.

Finding 5 is pleaded as follows:

I have carefully considered the contact records provided in support of that pleading. I have done so in the context of the social worker accepting in evidence that separate contact was not progressed due to resources and that there was no evidence in respect of the mother’s ability or inability, to meet one child’s needs alone. I can understand the concern of the local authority and the concerns arising out of the mother’s management of contact involving both children together; those concerns are set out clearly in the contact records.

However, I am not satisfied that the finding as pleaded in a fair or accurate reflection of the mother’s ability to meet a single child’s needs in contact or provide emotional warmth. I am certainly not satisfied, in so far as it relates to D, that the local authority has proven to the requisite standard that the mother would be inconsistent in her ability to provide emotional warmth to D and would be unable to implement boundaries so as to cause emotional harm. Whilst I am sympathetic to the issue with a lack of resources, I am mindful that I must not reverse the burden of proof. It is for the Local Authority to prove the finding.

On the evidence I am satisfied that the following finding is made out:

Finding 6 is pleaded as follows:

I have again carefully considered the contact records in support of this finding. I have also considered the concerns, raised previously, that I have had about the mother’s understanding of the impact on the children of the things she says in contact. There is evidence that the children have been exposed to adult issues, with C referring to herself as being anxious and using other adult-based phraseology. I am satisfied on all of the evidence I have read and heard, that the finding is made out.

As I go on to undertake my welfare analysis of the realistic options, I filter those findings, both threshold and welfare, into that analysis.

I turn then to identify realistic options for D and C.

The only realistic option I am asked to consider for C is one of placement with her father. No party seeks to persuade me that there is any other option to consider. There remains an issue in respect of frequency of contact, which I will consider in due course.

No party has attempted to persuade me that long-term fostering is a realistic option in this case. Ms Patterson has properly raised it as an option within her analysis and I agree with her view that this is not a case, in D’s particular circumstances, whereby long-term foster care is a realistic option. For D, there are but three realistic options:

As I have indicated earlier, in public law proceedings it is often that element of harm, or risk of harm, within the 1989 and 2002 welfare checklists which becomes the primary focus when engaging principles of necessity and proportionality. As I go on to undertake a balance sheet analysis of the identified 3 competing realistic options, I will be considering not only the findings I have made, but also filtering into that analysis the relevant parts of the welfare checklist. To that end, it is right that I should at this stage ask myself those 4 important questions about the harm in this case:

As I consider all of the evidence as a whole, and Mr Marshall’s report specifically, I am satisfied that the primary type of harm D would be exposed to in his mother’s care, would be emotional harm. The harm arises should D be in the mother’s care when she has a mental health crisis as she did in May 2023, or more generally exposed to presentations occurring as a result of her underlying mental health difficulties. The latter is described by Mr Marshall as the mother being a particularly reactive individual who at times experiences difficulties in regulating herself emotionally. If there were a decline in the mother’s mental health or she became distressed following an accumulation of difficulties, she may not be in a position to adequately meet D’s needs and may prioritise her own needs and act impulsively because of her own emotional crisis.

I consider the emotional harm primarily to therefore be two-fold:

D might also suffer emotional harm as a result of being exposed to frightening behaviours, such as the altercation between the mother and the maternal grandmother in August 2023.

I then consider how likely it is of that harm arising. What is the risk of it occurring? In answering that question, I look not just at Mr Marshall’s evidence but at the entire evidential picture before me. Mr Marshall quite properly identifies long-term issues that the mother has, which require further work. He expresses a view as to the risk of the children being exposed to the mother’s presentations. But that does not equate to the children being at risk of significant emotional harm, as submitted by the local authority. I keep in mind the following aspects of the evidential picture:

When I consider that evidence alongside that of Mr Marshall, I am led to the view that the risk of D suffering a degree of harm through general exposure to the mother’s presentations is high. However, when I consider the likelihood of D being exposed to the kind of deterioration of the mother’s mental health that occurred in May/June 2023, then for the reasons set out above, I consider that risk to be real but not high.

I then look at what the consequences for D would be if he did suffer that emotional harm. It is a question of the severity of the harm. As I have indicated, I do not accept that Mr Marshall opines that it would be significant harm; again, he refers to “some degree” of emotional harm. The determination of severity, or consequences, is one for me. I consider that the consequences for D would be that a deterioration in the mother’s mental health would likely result in his needs not being properly met and neglected. The mother may not be able to prioritise D’s needs. He may need to be removed from the mother’s care, causing disruption and instability. He may be impacted emotionally and psychologically by the mother’s presentations, at its extreme in terms of the mother self-harming or incidents of overdose.

The consequences of D being exposed, more generally to the mother’s presentations arising from ongoing issues with her mental health, are less severe. I agree that there is likely to be some degree of emotional harm. D may grow and recognise that his mother is particularly upset or sad on occasions, and that may have an emotional impact upon him. Exposure to the mother’s presentations may impact at times upon his own mental health.

But I remind myself again that the mother has cared for these children over a number of years without evidence of them being negatively impacted until the events of May 2023. I remind myself that many parents up and down the country suffer from poor mental health, but are still able to parent safely

I consider that the risk of the emotional harm arising can be mitigated by the mother’s continued compliance with appropriate medication and support services. She has engaged well with those support services since her discharge from Roseberry Park until her discharge in May 2024. She can be supported with referrals, if not made already to IMPACT for CBT and Harbour for counselling work. A plan could be put in place, involving wider services, whereby the mother could reach out and obtain support if she needed it. Whilst I do not mean to minimise the stresses of raising a child, I am drawn back to the fact that there has now been over a year whereby the mother has accessed support and assistance, through professional services, maternal grandmother and her close friends, and has not been impacted by way of a significant deterioration in her mental health.

I also consider the type of harm caused to both children if they were exposed to adult conversations, as I have found they have been during these proceedings. The type of harm is emotional harm and the risk of that harm occurring in respect of D are different, in my judgement, to that in respect of C. For C there remains an element of hostility as between the maternal family and B.

I have already expressed my concern as to the mother’s inability to grasp that conversations she has had in contact may be inappropriate. She specifically did not seem to understand that things she says to C may have a negative impact upon her, both in terms of negative way she may frame B, but also in terms of C’s ability to feel settled and secure in B’s care. For as long as C remains in the primary care of B, there is a high risk that the mother’s interactions with C may continue to make her feel that way. The consequences of that behaviour are that C may not feel able to settle into B’s care. She may not feel that she has been given permission to be happy and secure in B’s care.

It is less likely that D will be exposed to that emotional harm because B is not his father. However, I remain concerned that the consequences of that harm might add to the concerns that I have already read about in the sibling assessment, in respect of the sibling relationship. There is a real risk that if D is exposed to negative views of B, whilst C is living in the care of B, that the sibling relationship may be negatively impacted.

In my view, and package of support for the mother must include work undertaken with the mother, be that with a family support worker or by way of a programme, to assist the mother’s understanding of the impact of such behaviours on a child. Specifically, as the mother’s behaviours relate to emotional harm of this type suffered by C as result of her contact with the mother, the harm can be mitigated by the mother’s contact remaining supervised until she has been able to access that work and/or programme which will then reduce the risk of the emotional harm and the need for supervision.

The secondary type of harm is physical harm. As I consider the papers, I am satisfied that the potential for physical harm arises solely from the evidence in respect of the incident on 5^th May 2023. Like the emotional harm, the physical harm is linked to the mother’s emotional and mental well-being.

In respect of the physical harm, I consider the likelihood of it occurring to be low. The only time that this mother has caused physical harm to either of her children was when she slapped C on 5^th May 2023. Since the death of H, the mother had not had any professional support round that loss. I am satisfied that a number of factors resulted in her slapping C, including the anniversary of H’s death, her regular use of cannabis and the change in the support that MGM was able to provide. I consider her actions to have resulted not as a result of her general and ongoing mental health difficulties, but when coping with extreme life events, such as the anniversary of the death of her fiancé in the circumstances he dies and was found, have become particularly difficult.

The consequence of the harm is that the mother may act impulsively and strike D if he were misbehaving. I do not minimise any physical harm caused to a child, but I remind myself that the sole evidence I have as to the physical harm caused at the point whereby the mother’s mental health was reaching crisis point, is a slap which caused no marks.

I consider that the mother could be supported in parenting work to reduce an already low risk that the mother would act in such a way again. A support plan could be drawn up, identifying agencies to contact if the mother was feeling low or at a crisis point, which would mitigate the risk that the children would be exposed to either emotional or physical harm.

Drawing that analysis together in terms of the welfare findings sought by the local authority at paragraphs 2 and 3, I find on balance that the following findings are made out on the evidence I have before me:

Having undertaken that assessment of harm, I then go on to consider that harm, and risk of harm, as part of my global analysis of the realistic options and my applications of the principles of necessity and proportionality. As I do so, I have the welfare checklist firmly in mind, even if I do not specifically refer to each paragraph of that checklist.

The advantages of returning D to his mother’s care immediately, are obvious. It would allow D to remain part of his birth family. It would ensure that the bonds that he has undoubtedly formed in the care of his mother, and then through regular contact since separation, would be preserved. It would mean that he would have not just the opportunity of being brought up by his biological mother, but within the wider family unit. He has connections with other family members, in particular, with the maternal grandmother and his maternal aunt J, and those relationships would also be maintained.

Whilst I am alive to the outcome of the sibling assessment, I am also alive to the wider evidence which suggests that C has talked about D in a positive way and that, in the Guardian’s view, C does have an attachment to D. Placement of D in the mother’s care would allow for the potential of development of that sibling relationship and bond. It is often said that sibling relationships are the most enduring, lasting beyond the deaths of parents.

Growing up within his family would provide the benefit of security of identity; knowing his place in the world and how those around him fit into that world. He would be loved, as I have no doubt the mother and the maternal grandmother love him.

The disadvantages of returning D to the mother’s care are fundamentally based around the continuing risk of emotional harm that I have identified. That risk manifests in general as part of the mother’s ongoing presentation as a result of her poor mental health. However, both the severity of the harm and the risk of it increases, should the mother’s mental health deteriorate to the point that it did in May/June 2023. The concern is that the mother’s poor mental health may impact negatively upon D, not just now but throughout his life. There is a real concern that the mother has not seemed motivated previously to engage in therapeutic intervention when offered, and that those issues identified by Mr Marshall around the mother’s presentations, and inability to prioritise a child in her care, particularly at points of crisis, would remain unresolved.

A further disadvantage is that D may be exposed to ongoing inappropriate and adult based conversations, as have been observed in contact. As I have discussed, that would likely be emotionally harmful to D but may also be counterproductive in terms of rebuilding any relationship between the siblings.

There is also the identified risk of physical harm, should the mother’s mental health significantly deteriorate.

I look to the advantages of refusing to conclude the proceedings now, that being the second of the two options put forward by the mother. It would mean that more time would be given to the mother to evidence whether she is able to engage with the CBT work recommended. It would allow for a longer period of time to evidence whether there has been a deterioration in the mother’s mental health. It would allow the mother to undertake other courses or programmes associated with bereavement and parenting work.

The obvious disadvantage to adjourning the case is the delay that would be caused. At the end of this month, these proceedings will already be 1 year old. I remind myself that issues of delay are so significant that not only is there a 26-week statutory timescale for public law proceedings, but that the reason for that timescale is because any delay in determining the proceedings is likely to prejudice D’s welfare (s.1(2) CA 1989).

I ask myself what the purpose of that delay would be and if it would be meaningful. If the purpose of the delay is to allow the mother to undertake CBT, then I remind myself that the mother has already undertaken CBT on 3 occasions, the last time being in 2019. Whilst I am told that the mother is now on a waiting list, I have no evidence as to how long she will be on that waiting list or how long the CBT will take.

If the purpose of the delay is to allow additional time to evidence a sustained period of time where the mother’s mental health has not declined, I remind myself that here has now been a period of some 12 months where, even under the stressors of these proceedings and the plan of the local authority, there has not been a decline. I ask myself, rhetorically, how long is long enough?

If the purpose of delay is to allow the mother to engage in other therapeutic interventions, such as bereavement counselling or parenting work, then I do not have timescales for that work.

Any delay has to be meaningful. Identification of work to address the mother’s underlying mental health difficulties is important, as is engagement and completion of such work, but I must look to the necessity and proportionality of that work taking place whilst long-term decisions for D remain outstanding.

I look at the option of adoption and the advantages first. Such a placement offers the prospect of carefully selected carers committed to meeting D’s needs and with a lifelong commitment to emotional security and stability. It is a regime that gives a child an opportunity to establish an enduring relationship with primary caregivers and gives to a child that sense of permanence and what is often described in these courts as a “forever family”. Adoption would allow D to build long-term and enduring relationships with a new family, the benefits of which would stay with him throughout his life. He would have a family life free from the intrusion of the State. There would be an element of normality to everyday family life. He would no longer be at risk of the emotional harm that I have identified, may be caused to him if he were in the care of his mother. He would not be at risk of being exposed to the mother’s presentations and behaviours, as identified by Mr Marshall.

The disadvantages in respect of adoption are as follows. First of all, the interference on the family life simply could not be greater. Although most adoptions are successful, a not insignificant number break down resulting in harm to a child. I acknowledge, as I must, Baker J’s observation in Re HA (A Child) [2013] EWCA Civ 2974 that adoption is not and should not be considered a panacea. It would mean that contact with his mother would stop. The relationship between D and his mother would be severed in law and in fact. He would lose the benefit of the natural affection and love that his birth mother and wider birth family, could provide. Although the post adoption sibling contact landscape has begun to change, the reality is that it is likely that D’s relationship, or opportunity of developing that relationship, with C would be lost.

Ceasing to be a member of his birth family by way of adoption severs all legal ties between a child and their parents and with it the risk of a damaging impact on the child’s sense of identity and emotional wellbeing, not just now and during D’s minority but also as the D enters into his majority and throughout the rest of its life.

I look then at each of those options through the lens of necessity and proportionality. I acknowledge the understandable concerns that have been raised in respect of the mother’s mental health, in particular when her mental health deteriorates to the point that it did in May/June 2023. I do not minimise those concerns and note Mr Marshall’s opinion that there is a significant risk that D would be exposed to the mother’s impulsive responses and that particularly at times of distress, the mother may focus upon her own needs rather than prioritising D’s needs. I also acknowledge Mr Marshall’s view that there is an ongoing risk that the mother may present as inconsistent in recognising and responding to D’s emotional needs, if he were in her care.

However, when I have undertaken my analysis of the harm that may be caused, the likelihood of that harm arising, the consequences should that harm arise, and what could be put in place to mitigate the harm/risk of harm, I am drawn back inevitably to the question of the proportionality and necessity of the Local Authority’s plan. Despite the clear and understandable concerns raised by Mr Marshall, and echoed by the Local Authority and Children’s Guardian, I remind myself that this mother appears to have been able to adequately care for these children up until the incidents in May/June 2023. I am also reminded that this mother has successfully engaged with mental health services, both during her time in Roseberry Park and thereafter, without any concern being raised in respect of a significant deterioration in her mental health.

As I lay the realistic options for D side by side and consider their respective pros and cons in the context of the 2002 Act Welfare checklist, I am led to the conclusion that the local authority plan for D is neither necessary nor proportionate to meet the risk of harm associated with D remaining in the care of his mother.

As I weigh the risk of significant harm for D in respect of the Local Authority plan alongside a plan of rehabilitation to the mother’s care, I have formed the clear view that this is not a case where nothing short of adoption will do to meet D’s welfare needs. As I consider the option of an adjournment, alongside that analysis, I am not satisfied that the option of adjourning the proceedings for a period of time is either necessary or proportionate. In my view, an adjournment would achieve little when my analysis concludes that D can be rehabilitated back into the care of his mother on the basis of the evidence already before the Court.

In respect of C, no party seeks to persuade me that the Local Authority plan is not the right one. Regardless as to the parties agreement, I confirm that I have undertaken my own welfare analysis, incorporating the 1989 Act Welfare Checklist, and am also satisfied that a plan of placement with B will meet C’s welfare needs.

Acknowledging as I do, the risks associated with a plan of rehabilitation, it is my view that all must be done to ensure that a plan of rehabilitation is successful. In my view, a rehabilitation support plan ought to be prepared to identify how the mother will be supported, be it through professional support, agency support or family support. It should set out what referrals have been made and what referrals will be made including for CBT, parenting work and counselling.

I have carefully considered the role that maternal grandmother is able to play in supporting the mother. I have been told by the mother that she sees the maternal grandmother as a significant emotional support. Indeed, in my view it is likely that the absence of a significant deterioration in the mother’s mental health has been positively impacted by the support provided by the maternal grandmother over the last year. I can see how the maternal grandmother may be in a position to provide not only that emotional support, but also practical support moving forward.

However, I am very alive to the findings made by DJ Lalas earlier this year and the fact that the maternal grandmother’s contact with her younger child, J, remains supervised. Despite the arguments put forward on her behalf by counsel, highlighting the positive progress the maternal grandmother has made to address the risk of harm to J, as identified by DJ Lalas, I am not persuaded that the maternal grandmother’s contact with either D or C ought to move to unsupervised contact. It is my view that there will need to be an assessment undertaken by the local authority to ensure that it is safe to progress in that way.

But that does not mean that the risks identified by the Court in respect of J, mean that the maternal grandmother cannot play a practical support role for the mother. For example, I have asked myself what the risk would be to D of the maternal grandmother attending at the mother’s home to practically assist her or to let the mother have rest, whilst maternal grandmother looks after D. In my view, the risk of D being exposed to the type of harm identified by exposure to the maternal grandmother’s inappropriate relationship, and dishonesty about that relationship, is low. In my view, it is that type of support which ought to be clearly set out within a support plan.

I have considered the frequency of the mother’s contact with C and whether it ought to remain supervised. On the basis of the decision I have made in respect of D, and the findings I have made in respect of issues within contact, I consider:

On that basis I approve a plan whereby the mother’ s contact with C is reduced to a frequency of 1 x per week.

I have then considered whether the mother’s contact with C ought to remain supervised. In doing so, I am mindful that I have determined that D can be returned to the mother’s care, which of course clearly indicates the absence of any need for supervision as between D and the mother.

However, I must look at each child’s individual welfare and the risk of harm relevant to each specific child. In my assessment of risk of harm, I have identified the continuing risk of harm, specific to C, as a result of inappropriate conversations and comments being made in contact. Much is about to change for this mother. I have already set out my concerns in respect of her ability to understand and reflect upon how things said in contact may negatively impact upon C. There will need to be a plan as to how news of D’s rehabilitation to the mother’s care will be managed with C. Great care will need to be taken in contact between the mother and C to ensure that C is not negatively impacted by that news. Until the mother has been able to complete parenting work around inappropriate comments/conversations, there is an immediate need for the mother’s contact with C to remain supervised.

I invite the local authority to consider some specific work with the mother around how to deal with the issue of D’s rehabilitation to the mother’s care in her interactions with C.

Although I am satisfied in principle that the right plan for C is for her to remain in the care of C and the right plan for D is a plan of rehabilitation, I will not make any final Orders today. There needs to a period of reflection on my judgment before the matter returns back for conclusion. I invite the local authority to accept the Court’s analysis of risk and formulate a support plan to include those elements I have set out above. Whilst there is agreement in respect of the final Orders for C, I invite the local authority to consider what legal framework ought to underpin D’s rehabilitation to the mother’s care. I will hear submissions on that issue in due course.

That ends my judgment.