R-B (A Child)

This is an appeal against care and placement orders made by HHJ Black sitting in the Family Court at Portsmouth on 28 September 2018. The child who is the subject of these proceedings (“J”) was born on 29 May 2018 and is therefore now aged 13 months. At the time of his birth, his mother (“S”) was herself aged only 16 years, three months. When J was born, S and her siblings were living at home with their mother. For several years, the family had been known to social services, and the children, including S, had been categorised as children in need and latterly had been the subject of child protection plans under the category of neglect. The local authority had a wide range of concerns about the family, including the very poor condition of the home and the behaviour of S's younger siblings.

In the light of these concerns, the local authority made J the subject of a child protection plan himself during S's pregnancy and after he was born decided to start care proceedings. An application was issued on 5 June 2018 when he was only a few days old. At the first hearing on 25 June, HHJ Levey made an interim care order on the basis of a care plan that provided for S and J to be accommodated together in a mother-and-baby foster placement while various assessments were carried out of S's capacity to care for J. J's father was not living with S, and, although he has had contact with J, he has not at any stage put himself forward as a potential carer. He too is a young person from a difficult family background who has been supported by social services for a number of years.

In the following weeks, S and J did not have a stable life. Instead, they moved on several occasions between a series of mother-and-baby placements. Two of those moves were apparently necessary because the foster carers had pre-booked holidays. Other moves apparently took place because S said she was unhappy in the home. In the course of those placements, various concerns were raised about the quality of care which S was providing to her baby. There was also concern about S taking J to the family home and exposing him to the risk of harm there. On a number of occasions it was alleged that S had left J in the care of a foster carer for several hours, contrary to the arrangements set out in the care plan. As a result of these concerns, the local authority imposed a further restriction that S would not have unsupervised contact with J.

The assessments carried out included a psychological assessment of S. The psychologist concluded that her full-scale IQ was within borderline range. She was said to have the immaturity and inexperience of many girls of her age from deprived backgrounds. She was assessed as having the capacity to conduct proceedings and to give instructions, although it should be noted that the psychologist expressed a degree of caution about this, observing that “provided her solicitor is suitably experienced in and mindful of these considerations, and provided matters are discussed patiently and in simple terms, [S] should be able to provide appropriate instructions”.

During the proceedings, the local authority instigated a PAMS assessment. The report of that assessment indicated a number of ways in which S had failed to provide appropriate care for her baby. The conclusion reached by the assessor was that, despite the support she had received in the placements, S had failed to demonstrate that she had the capacity to care for J or to prioritise his needs. The local authority therefore concluded that J should be removed permanently from her care and placed for adoption. To that end, the local authority filed a final care plan in those terms together with an application for a placement order. In accordance with earlier court directions, the local authority also filed a report under section 37 of the Children Act 1989 in respect of S's siblings. The care plan for J was supported by the children's guardian.

In accordance with the public law outline, the case was listed for an issues resolution hearing originally on 1 October 2018 but then brought forward by the court to 28 September 2018. In a position statement filed on her behalf two days before that hearing, S's solicitor stated that S had had the opportunity of reading the local authority's final evidence, was aware of the plan for adoption and was opposed to the plan. The solicitor proceeded to go through the allegations on which the local authority relied in support of their care plan and argument that the threshold under section 31 of the Children Act was crossed. The solicitor stated that the mother accepted some of the allegations but not others. The solicitor stated that the main point that S wished to raise was the fact that she and J had moved foster placements on four previous occasions. The solicitor contended that it was clear that this level of moving was not conducive to S's learning. The solicitor added however that S had been much more settled in her current placement, where she had been getting on really well with her carer.

The issues resolution hearing was listed before HHJ Black. A transcript of the hearing has been prepared for this appeal. The first part of the hearing lasted 13 minutes. I realise the danger of a partial quotation from a transcript such as this, but what follows is, I hope, a fair summary of what transpired during those 13 minutes. After the introduction, the judge addressed the mother's counsel. She referred to the mother's very young age and cognitive difficulties and to the fact that she had moved foster placements on several occasions. The judge expressed concern about the PAMS assessment and the concerns identified by the local authority. She said that:

“The PAMS assessment was really important, because that was really to reinforce all the teaching and to get your client, because she is a young parent and because she has got her own learning difficulties, to make sure that she really did give and was given the best opportunity to learn more than anything else.”

The judge added:

“And that is the difficulty you have. That was your chance, really, and it does not seem to have been used in the way that I was expecting it to be.”

Counsel then addressed the concern raised by the local authority about S absenting herself from the foster home and said that S had found it difficult when J had not been allowed to stay in her room after the restriction on unsupervised contact had been imposed. To this the judge responded:

“Yes, but it is a vicious circle, really, isn't it, because these extra restrictions were put in place because of the worries that social services had. But you should still be there caring for your child, even with those restrictions in place. If you're not, what is the point of you being there? That seems to be your client's view, in that she is not there. In fact, what I see more is your client almost having to come to terms with the fact of the reality of the situation and just waiting for a decision to be made, because her actions are not showing to me someone who is wanting to roll up her sleeves and say, ‘Well, stuff the social workers, I can prove that I can do this’. It is quite the reverse.”

A little later in the transcript the following exchange took place:

“JUDGE: She's had four months. It's a long time. What are you suggesting I do?

COUNSEL: Well, mother wishes to put her case forward.

JUDGE: Yes, but what does she want me to do with J? Where is she thinking this is all going?

COUNSEL: She wishes to be afforded a further opportunity to demonstrate that she can bridge the gap between what the PAMS assessment is saying, the understandable concerns that have generated from that, and her ability to meet his needs.

JUDGE: Yes, but your client knows she's got 26 weeks to do this in. There is no reason to go outside 26 weeks. She has four months now in a mother-and-baby foster placement. How much longer are you thinking I should give her?

COUNSEL: I would suggest another two months to be able to demonstrate a level of stability.

JUDGE: I can't. That's...