“I have considered extensively whether it would be possible for the children to return to their mother’s care and, if so, what support would mitigate the risks identified in this assessment. Unfortunately, I am not convinced there is any realistic level of support which would guarantee the safety and security of the children moving to live with their mother, at this juncture. S’s emotional needs present serious risk of her regressing, enduring further trauma through being reminded of her adverse experiences, confusion and placement breakdown. Furthermore, there is no realistic level of consistent support from the same caregiver, or any person who is familiar with all children, which would alleviate pressures on [the mother] who will be expected to meet the needs of four to seven children at any one time – a very demanding and pressurised task, one which is untested.”
“The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.”
“It is quite clear that the test for severing the relationship between parent and children is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do.”
“49. In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. 50. The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare. …. 54. In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge's judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”
“16. In addition to those specific legislative matters the following principles can be drawn from the extensive case law which has developed, but in particular from the landmark decision of Re B (A Child)[2013] UKSC 33 : (a) the paramount consideration for a court when considering an outcome for a child is that child’s welfare; (b) it is a principle of the law that the welfare of a child is best met by maintaining the connection with birth parents to as full an extent as possible; (c) that principle is underpinned by application of the least interventionist principle enshrined in s.1(6); (d) adherence to those principles reflects and respects both the importance of the right to family life set out inArticle 8(1) of ECHR and the limited scope for interference with that right as set out in the exceptions in Article 8(2); (e) interference in the right to family life, which is the right both of the parent and of the child, is parametered by necessity, proportionality and legality. (f) As a consequence, the permanent severing of ties between a child and her birth parents is an outcome only to be ordered in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare. (g) To arrive at that conclusion the possibility of parental care or, in the alternative, care by members of the wider birth family must be shown to be options which are not realistic either by reason of unavailability (i.e. they do not exist) or because such care cannot meet the welfare needs of the child. (h) That option of parental or family care should not be rejected if identified deficits could be remedied through appropriate and proportionate support provided by the Local Authority, even if such support would be necessary for an extended period of time. (i) In order to arrive at a valid conclusion that a child’s welfare requires their permanent removal from parental/family care it is necessary to consider individually all of the competing options for care, to assess their respective strengths and weaknesses and then to look at those options against each other to ensure that every option is fully considered against every other option. (j) Having done so and identified the outcome most able to meet the welfare needs of the child it is necessary to consider whether that outcome is itself a proportionate interference in the rights of the child.”
“Finally, in respect of the law I make it clear that there is no ‘status quo’, by which I mean no argument that because a decision was made in 2018 that placement orders should be made that that is now a default position which will determine this application absent some significant or exceptional situation. That was the position until the point where leave was granted. The granting of leave effectively levelled the field. Put simply the question in my view is not ‘why shouldn’t the placement orders remain?’ but ‘what does the welfare of these children now require?’” “Finally, in respect of the law I make it clear that there is no ‘status quo’, by which I mean no argument that because a decision was made in 2018 that placement orders should be made that that is now a default position which will determine this application absent some significant or exceptional situation. That was the position until the point where leave was granted. The granting of leave effectively levelled the field. Put simply the question in my view is not ‘why shouldn’t the placement orders remain?’ but ‘what does the welfare of these children now require?’”
“(a) What now are the possible outcomes for these children? (b) Which of them best meets their welfare needs? (c) If that outcome does not result in a return to the mother, is that undoubted interference in their right to family life both necessary and proportionate?”
“There is no doubt that [the mother] has effected a transformational change in herself, her life and in her significant relationships. During the course of the hearing witness upon witness, even those who do not support her overall aim, paid tribute to the difference [she] has made in her own life. I do not normally spend time in a judgment dealing with matters which are not in dispute but I think the following needs to be set out simply to record just what this mother has achieved.” 29. He proceeded to set out in detail the transformation of the mother’s life. Having summarised the background leading to the making of the care and placement orders he continued: “24. That was then. In my experience that sort of record combined with the outcome which followed leaves most parents despondent, possibly even depressed and certainly defeated. They rarely come back from such a setback and invariably any progress which follows is limited. 25. [The mother] chose a different route. 26. Before me last week I watched a confident, capable and engaged woman. Despite her previous experience of the Family Court she engaged with the hearing with patience, courtesy and commitment, just as she has with the whole of the proceedings. 27. But [the mother] now has much to be confident about. In 2018 she met JA and started what has slowly developed and matured into an established, mutually supportive and committed relationship. That relationship has been thoroughly stress-tested not only by [her] participation in this litigation and all the pressure but by the envelopment of JA himself into these proceedings as an intervener ….” 30. Noting how the mother and JA had coped with caring for his children and then the arrival of the baby N, the judge continued (at paragraph 30): “What shone out from the mother during her evidence was not how testing, tiring and troubling all of this was but how much she had felt engaged and committed to the children whose care had become her responsibility.”
“the couple are a team and that team has stepped up at a very difficult time for three children and provided them with a sense of security and stability which has served them well and which will have made a real difference to them this year.”
“when weighed against all that has gone on since and all that this couple has achieved, in my view it would be wholly disproportionate to attach a significance to one night in 2019 which then sounded in my decision-making now. [The mother] and JA are not perfect and they can make mistakes like all of us. I move on.”
“The position therefore in terms of her own development is that [this] mother has demonstrated a level and scope of change which on any basis justified the granting of leave because it raised her from a failed parent to a good one and therefore has opened the door to the reassessment which this hearing now requires. As change goes it is very significant, it is successful and, most importantly, it has been sustained when tested. It is difficult to see what else this mother could have done to turn around her own life and that needs to be set out here for her to know.”
“Of the children an uncertainty lies in respect of S and what is best for her. S is nearly 7 years old, by any margin that is an age when even finding adoptive placement becomes less and less likely. In this case there is a placement available for S, but the question remains as to whether it can be a successful placement.”
“51. The other potential catastrophe and linked to the first would be for S to endure a failed attempt at rehabilitation to her mother, to have her hopes of such a future raised up only for them to be dashed if the children had to be removed. 52. The effect of such a failure would be threefold. It would cause significant emotional harm to S if that failure was despite her own efforts and contrary to her wishes as opposed to her needs. It would almost certainly remove any prospect of a successful transition through to a permanent stable future for her. Finally, it would probably require separate consideration of the outcomes for the children with the likelihood that adoptive placements could be secured for only the younger two as they could still move on but S would be unable to form such permanent attachments to entirely new parents. 53. For S this would be a loss of huge proportions: an emotionally damaged little girl condemned to the care system, facing the loss of a settled future and enduring a permanent separation from her siblings to an adoptive placement to which she could not go.”
“55. I start therefore from the position that [the mother] and JA want to offer home to the children and to do so would enable the reintegration of a family and so uphold the rights of those involved. The only reason why that should not happen is, if in doing so, it is unlikely to work and will not therefore give these children what they need and to which they are entitled. Children are not simply the products of their parents but have their own entitlements, needs and rights. 56. In my judgment these children need and are entitled to the following: (a) a settled, stable and permanent future; (b) delivered with immediacy given their ages, particularly S’s: (c) which enables them to live together on a long-term basis and to enjoy the benefits of their sibling relationships throughout their lives; (d) where their immediate, medium-term and long-term needs can be met on a daily basis and with a degree of certainty, insofar as life ever carries a guarantee about anything, that that will continue. 57. In my judgment that outcome cannot be delivered by [the mother] and JA, despite all the positives recorded in this judgement, and that if the welfare of the children is to be the paramount consideration I must dismiss the application for revocation.”
“It is no answer to say that the pressure points arise only at weekends when it is currently anticipated that most children will be sharing the same space. A permanent household of four children is itself a significant change for the children with whom I am concerned and the regular and frequent enlargement to seven brings with it an exponential increase in stresses, care requirements and emotional pressure points. It is not a household which lends itself to calmness, to stability or to individualised care time for children who need it.”
“A coping household would be sufficient for children who have known no different and who have become emotionally and psychologically resilient as they became resigned to the fact that their parents’ time had to be split across several siblings. This is not the evidence of what these children need. By reason of their damaged experience in early life the children need more than merely coping parenting and in my view would be unable to develop a mindset which allow them to flourish in regular and relative chaos.”
“the risks for the children of attempting a migration to the care of [the mother] present too many risks which collectively cause me to conclude that the outcome would be a near certainty of placement breakdown and an inevitable separation of the children into different futures.”
“(a) The risk of a failed reunification between the children and their mother; (b) The risk of a difficult introduction and acceptance of JA as the mother’s partner; (c) The uncertainty over the introduction of N to the children; (d) The inevitable re-introduction of their father to the children in the context of their adjusting to their mother’s new arrangements; (e) The introduction and attempted merger of the two sibships; (f) The potential for difficulty for two sibships ‘sharing’ N: (g). The possibility, which I acknowledge is not a current reality, of the two sibships having to fully merge due to situational change for JA’s children, as has occurred in the past, and seven children attempting not only to get along at weekends but to integrate into a single household.”
“All of these risks are evidentially possible and some of them are probable. I do not need to be satisfied that they all will happen. I am however satisfied that they are all likely in one form or another and that to ignore them would be wrong.”
“The immediate outcome of an adjournment would be delay, no clear outcome, an extension of the proceedings, a confusing picture for the children, a possibility of invoking the very catastrophic outcome to be avoided at all costs and, possibly, the potential complete loss of a placement for all three children which could maintain the sibship and so open up the possibility that a divided sibship would end as a wholly separated one.”
“79. In my judgment it is clear from the evidence of what the children need that there is only one outcome which will meet their welfare needs both now and in the future and that outcome is for them to move forward towards a permanent non-family placement rather than to return to the care of their mother or even to test out that possibility by trying it out. 80. There are many downsides to an adoptive placement and some are inevitable. There is a real risk that S may not settle or do so over such a time as to destabilise matters for all three children. There is the high likelihood that even a successful transition will, at some point, cause an eruption for a child who suffers in later years a real sense of dislocation and loss, a possibility made all the greater for a child who remembers their parents and can access social media. There is the inevitable loss of the possibility of a continuing relationship with a birth family and the severance of [ties] which will undoubtedly cause a sense of dislocation, even if it does not result in a breakdown of the adoptive placement. 81. In arriving at the conclusion that I do I have to both acknowledge that the mother could literally have done no more than she has to achieve her aim but to equally acknowledge that for these children their needs now and in the future must be given greater precedence than even this mother’s achievements. The problem for these children is not what their mother can offer them now but what they need now as a result of what they endured in the past.”
“The support required to enable the children to achieve rehabilitation at home without incurring the risks of separation or re-removal would have to be sufficient to effectively remove from the parents nearly all other burdens and distractions to enable them to focus upon the needs of the children. That would amount to care by the local authority in the presence of the adults rather than care by the adults. The obvious benefits of being brought up within the birth family are, in my judgment, significantly outweighed by the real risk of a failed attempt at rehabilitation which resulted in long-term damage to at least S and the possibility of a separation of the sibship. An outcome for even one child that left all three of them suffering the loss of a sibling or was causative of an inability to secure future permanence is a detriment which, in my view, outweighs the benefits of maternal care.”
“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.”