Newcastle City Council v WM and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,The Honourable Mr Justice Cobb |
| Judgment Date | 08 May 2015 |
| Neutral Citation | [2015] EWFC 42 |
| Court | Family Court |
| Docket Number | Case No: NE14C00125 |
| Date | 08 May 2015 |
[2015] EWFC 42
IN THE FAMILY COURT
Sitting at Newcastle Upon Tyne
The Law Courts,
Quayside,
Newcastle-upon-Tyne
Mr Justice Cobb
Case No: NE14C00125
Miss Lesley McKenzie (instructed by Local Authority Solicitor) for the Applicant
Miss Katherine Wood (instructed by Singleton Winn Saunders Solicitors as agents for the Official Solicitor) for the 1 st Respondent Mother
Miss Lesley Monkhouse (solicitor of David Gray) for the 2 nd Respondent (father of HA)
The 3 rd Respondent (father of TY) was neither present nor represented
Mr Mark Styles (instructed by Duncan Lewis) for the 4 th and 5 th Respondent (maternal grandparents)
Miss Fiona McCrae (instructed by Co-operative Legal Services) for the 6 th Respondent (maternal aunt)
Miss Pauline Moulder (instructed by Richmond Anderson Goudie) for the 7 th to 9 th Respondents (children)
Hearing dates: 27 April – 5 May 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. 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 and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
At the heart of this dispute lies the future of three young children, aged 6, 4 and 3, whose young mother has learning disabilities, and is acknowledged by the Official Solicitor, her litigation friend, not to be in a position to care for any of them. They are all currently together in foster care, and the Local Authority seeks their permanent placement for adoption, albeit split as a sibling group and placed in two separate homes. The mother has a fourth child, born only within the last few weeks, who is the subject of separate public law proceedings.
The three children with whom I am concerned have different fathers; the father of the oldest child is unidentified, the father of the middle child has not seen her for many months and does not seek the return of his daughter, and the father of the youngest child was until recently in custody serving a prison term for sexual offences against his own step-daughter. The children are second generation of a family (on the maternal side) of asylum seekers from Somalia, and have lived in England a considerable distance from their extended family. The oldest child (aged 6) has a degree of developmental delay. The mother's younger sister (maternal aunt to the children) seeks the full-time care of the oldest two, but not the youngest of the, children. The youngest child is mixed race. Those are just some of the factual complexities of the case.
The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:
i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;
ii) The children were accommodated under section 20 of the Children Act 1989 ("CA 1989") from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;
iii) The 'letter before proceedings' (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);
iv) The final hearing is taking place in the 43 rd week, not the 26 th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);
v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that "she did not appear to understand the reasons why her children had been placed in foster care"), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;
vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;
vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;
viii) The Children's Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.
ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt's lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;
x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;
xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.
Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don't, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105–111]).
Intermediary involvement
Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
Ms Jones' report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother's participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother's evidence, which we all endeavoured conscientiously to observe.
Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance.
The applications and parties
These proceedings concern three children, two girls, namely HY (d.o.b. 16.7.08) and HA (d.o.b. 21.09.10), respectively therefore aged 6 years 9 months and 4 years 7 months, and a boy (TY) (d.o.b. 5.4.12) aged just 3 years. Their mother is WM (hereafter "the mother") is 27 years old; she has been assessed as lacking capacity and is therefore a protected party under rule 2.3 FPR 2010, appearing (since September 2014) by the Official Solicitor as her litigation friend. Each child has a different father; only HA's father (AM) plays any part in the proceedings though he has played no meaningful part in the life of HA for the last 10 months. As indicated above, the children have one further half-sibling who was born two months ago, and who is the subject of parallel public law proceedings.
By applications dated 3 July 2014 Newcastle City Council (hereafter "the Local Authority") seeks full care orders under Part IV of the Children Act 1989 ("the 1989 Act") in relation to the three children; by application dated 21 January 2015 they further seek placement orders for the three children under Chapter 3 of the Adoption and Children Act 2002, on a plan to place HY and HA together for adoption, separately from TY. The applications for care and placement orders in respect of all three children are opposed by the...
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