A London Borough v Mrs A and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2203 (Fam) |
| Court | Family Division |
| Docket Number | Case No: AL11C00030 |
| Date | 27 July 2012 |
[2012] EWHC 2203 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Jackson
Case No: AL11C00030
Alison Grief (instructed by local authority solicitors) for the Applicant
David Boyd (instructed by Edwards Duthie) for the First Respondent mother
Wendy Frempong (instructed by Charles Allotey & Co) for the Second Respondent father
Giles Bain (instructed by Lawrence and Co) for the Respondent children
Hearing dates: 23–27 July 2012
These proceedings concern three siblings, identified by initials: C (a boy aged nearly 6), J (a boy aged 18 months) and M (a girl aged 7 months).
The local authority seeks care orders in relation to all three children and placement orders in relation to the younger two. The applications are supported by the Children's Guardian and opposed by their mother and by their father. The mother seeks a postponement of the decision about the children's future to enable her to start on a course of therapy, so that the children might be safely returned to her sole care.
The reason for the proceedings is set out in a judgment given on 11 November 2011. I found that the father was responsible for the death of J's twin brother B in February 2011. I exonerated the mother, who was not present, and C, who was present but did not cause B's injuries.
On 11 December 2011, the mother separated from the father in the sense that they have since that date lived apart and had no contact of any kind with each other, except unavoidably at meetings and hearings about the children.
On 13 December, there was a pre-birth case conference and on 29 December, M was born. She was removed into foster care at the time of her birth.
On 20 January 2012, there was a further case conference in relation to M.
On 18 July 2012, the father's appeal against the finding of fact against him was dismissed by the Court of Appeal.
At the beginning of this hearing, I reviewed the finding of fact against the father in the light of evidence about an incident in May 2012 when C had kicked and injured his school transport assistant. My conclusion, for reasons given at the time, was that this did not affect my findings of fact.
A decision must now be taken about the children's future. As to that, their welfare is my paramount consideration, and other considerations, such as sympathy for the mother, must give way to it.
A number of professional assessments have been carried out with the purpose of identifying what is in the children's interests. These have been of a consistently high quality. I have received written reports and oral evidence from the following:
Laura Stephens, the children's social worker
Nkechi Ode, social worker, Moorfield Family Assessment Centre
Dr Eia Asen, Consultant Child and Adolescent Psychiatrist
Carmel Shepherd, Children's Guardian
C and J are currently in one foster home and M in another. There is a very high level of contact between the children and their mother and occasional contact with their father.
The local authority's plan is for C to remain as a long-term foster child with his current carers, for J to be moved and adopted or (more likely) long-term fostered elsewhere, and for M to be adopted on her own.
I will describe the relevant features of the children's situation with reference to aspects of the welfare checklist.
The children's ages and relevant characteristics
C's autistic spectrum disorder is prominent, but he has been making very good progress recently. Unfortunately, J is showing unmistakable signs of global developmental delay, which makes him a demanding child to care for. His exact health status will not be clear for some time. M is making good developmental progress and is a rewarding child to look after.
All the children, and particularly the younger two, are at an age where it is very important that they should be able to make attachments to their permanent carers as soon as possible.
The children's wishes and feelings
None of the children is able to articulate wishes, but their feelings are apparent. C has a close relationship with both parents, while J and M have a close relationship with their mother, sustained through contact.
The children's needs
Following the death of B, the children need to be protected from violence at the hands of their father.
After a prolonged period in foster care, they need clarity about their futures, and an environment in which they can learn in an appropriate way about what has happened in their family.
Effect of change of circumstances
Both younger children face a move from their current placements. The earlier it happens, the easier it will be.
Harm
The fate of B shows that the children would be at risk of serious and possibly fatal physical harm if they were in the unsupervised care of their father, either as a result of the mother resuming her marital relationship with him, or of her allowing unsupervised contact.
Moreover, the children would be at risk of emotional harm if they were brought up in the belief that C was the cause of B's death. This would be particularly harmful for C himself, and the issue is also of great significance to J, as B's twin.
Parental capacity
The father being excluded from any significant role in children's future, this assessment now concerns the mother.
There is strong evidence of her excellent parenting. The children were apparently well looked after up to February 2011, and since then her commitment to contact and her behaviour with the children has been exemplary. She is good at providing routines and stimulation. She is warmly devoted to them, and well equipped to help C and J with their difficulties. She has insight into the children's need for permanence. In all these respects, she is a very good mother.
The problem is that there is serious doubt about whether she can meet the children's physical need to be kept safe and their emotional need to understand their family history.
There is unanimous professional advice that the mother is not currently able to do these things. Even the mother herself does not argue with that. I am clear that the children cannot be returned to her care now. The risk is far too high. The mother's good intentions cannot protect the children over time while she genuinely believes that the father is the victim of a miscarriage of justice. If a decision is to be taken now, it must be to approve the care plans.
The only remaining question is whether the mother has the capacity to meet the children's needs within their timescale. The only possible way that this could be achieved if she were able to participate in and benefit from psychotherapy.
The disadvantages of the care plan
The children will lose their mother, and will learn in later life that this happened despite her being blameless in relation to the death of B.
They will not grow up in their family of origin, and are unlikely to find carers who reflect their distinctive ethnic and cultural identity. Neither of the present foster homes fully meets this need, and it is unlikely that a full match could be found for J or M.
The children will be split, with uncertain prospects for future sibling contact. While M will be adopted, C will not be, and J probably will not be. There will be difficulties in arranging contact with M if her placement is a conventional adoptive placement. There is likely to be a situation where one or more child has some parental contact while one or more does not.
C will lose parents to whom he is very attached and who know his ways well.
Rather than being adopted, it is more likely that J will grow up in long-term foster care from infancy.
The disadvantages of deferring a decision
It leaves the children in limbo for a further six months.
This is particularly concerning in M's case, as she could almost certainly be placed for adoption by then; delay affects her ability to make the most secure attachments. It may also somewhat reduce the pool of prospective adopters.
Deferral also holds disadvantages for J, who will not get to the adoption starting gate without a placement order. In the meantime, his foster placement is not absolutely guaranteed to last, due to the demands he places on his carers.
For C, it would be a disaster if the current plan was lost. It is possible that his carers would be disheartened by being asked to wait. The process of making definite long-term ties between him and his carers could not begin on either side.
Discussion
A decision can only be deferred if there is a real prospect of a different outcome emerging. That depends on two things: the mother's state of mind and the court's criteria.
The mother's state of mind is that she does not accept the judgment. To the perplexity of those working with the family, who all acknowledge her good parental qualities, she remains stuck in this position.
In my earlier judgment, I said this:
The mother's actions cannot remotely be compared to the father's, and some understanding and sympathy is due. She has lost a child in tragic circumstances, been separated from her other children, and is now pregnant again. However, by her response to B's death, she has let him and the other children down. She has put her own dependence on the father ahead of the interests of her children. This cannot continue if she is going to parent C, J and the expected child safely without the father's involvement.
From the standpoint of the children's interests, this creates a real dilemma. It is clear that the mother...
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