Bournemouth, Christchurch and Poole Council v Mother & Ors [2025] EWFC 185 (B)

IMPORTANT NOTICE 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.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWFC 185 (B)IN THE FAMILY COURT AT BOURNEMOUTH AND POOLEDeansleigh RoadBournemouthDorsetBH7 7DSDate 15 May 2025
Before
HIS HONOUR JUDGE SIMMONDS
Between
BOURNEMOUTH, CHRISTCHURCHApplicantAND POOLE COUNCILApplicant(1) MotherRespondents(2) FatherRespondent(3) FatherRespondent(4) Older siblingRespondent(5) Younger Sibling (Via his Children's Guardian)Respondent
MS ELISABETH HUDSON (Counsel) appeared for Applicant Local AuthorityMS MELANIE DE FREITAS (Counsel) appeared for First Respondent (Mother)The Second Respondent was discharged as a party and was not present or representedMS CAMILLA CODLING (Solicitor) appeared for Fourth RespondentThe Fourth Respondent was discharged as a party and was not present or representedMR ADAM LANGRISH (Counsel) appeared for Guardian
DRAFT JUDGMENTDigital Transcription by Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]This is an oral Judgment given at the conclusion of a final hearing for a care and, if granted, placement order in respect of Peter (not his real name), who is 4 years of age. When these proceedings commenced they were in respect of John and his two older siblings: X and Y aged 15 and 13. I made final orders in respect of X and Y at the Issues Resolution Hearing.[2]The local authority is BCP, represented by Ms Hudson. The mother of Peter, and X and Y, is XX, represented by Ms De Freitas. The father of Peter is XXM, represented by Ms Temple, and the Guardian for the children is represented by Mr Langrish.[3]Peter is in foster care. He has been in foster care since I made interim orders in October. He has recently moved placement.

The Parties Positions

[4]The local authority seek a care and placement order in respect of Peter. They say that Peter would be able to have yearly contact with his older siblings, subject to a risk assessment, and letterbox contact with the parents twice a year. They would wish to consider direct contact with the parents, but that will depend on the parents' acceptance of any placement.[5]The mother neither consents nor opposes the applications sought. She accepts she is not in a position to care for Peter, either now or in the foreseeable future. She has recently attended little contact, and I excused her attendance from this hearing given her position. She is not a realistic option.[6]The father opposes the making of placement orders. He agrees a care order. He seeks an adjournment for a period of time to allow him to be released from prison and to deal with his outstanding criminal matters.[7]The Guardian supports the plans of the local authority.

Background

[8]These proceedings were issued on 23rd September 2024. I of course undertook the interim removal hearing when I made orders in respect of the children. The local authority have been involved with the mother since 2006, both in respect of these children, but also in respect of her older children who are now adults. The local authority undertook Public Law Outline in September 2023 which ended in February 2024 on the basis that the mother had engaged. However, further concerns were raised. X was deeply enmeshed in a network of drugs and crime. It was reported that he was earning about £1,500 a week. Y was engaging in similar activities.[9]Peter was living in a home where there were large and accessible quantities of drugs. There were weapons, and those were found on a police raid. There were unsafe adults. Peter, being in a home where there were drugs, weapons and a lifestyle of criminality was a real concern. He later spoke of doors being kicked, police coming through windows and police attending.[10]When I heard the interim care hearing, X was permanently excluded from school. There were concerns as to his possession of a weapon, using and threatening violence. Before his exclusion he attendance at school; had been around 23%. Y was also struggling at school. His attendance was around 62%. Peter had been seen on a motorbike with one of his brothers with no helmet. He was reported to be at a window shouting "Fuck off, n…..s" and there was worry about the lifestyle he was witnessing.[11]The mother accepted she is not in a position to care for Peter.[12]At the time of the first hearing the father was in prison.[13]I was clear at that hearing that for these three children their lived experience since 2006 (and so for Peter throughout his young life) was a real concern and there were no boundaries and routines. For the older children either no or very limited school attendance; a complete life of criminality; young boys selling drugs; raids at the home which included the finding of weapons (and, by that, I mean knives and swords); a kilo of cannabis; large quantities of cash; knuckleduster; pepper spray; and items that both X and Y had that were expensive and unaccounted for; that the home had been raided and two men had assaulted the mother wearing balaclavas; and, for Peter, he was in a home where all this was happening.[14]By the time we came to the IRH, X and Y could not return to the care of their mother. Their father was not available as a carer. They have remained in their own placements and they continue struggling with their own needs. This hearing, therefore, has concentrated and has only been about Peter.

This Hearing

[15]Because the father is in prison, a production order was made for his attendance. The prison, though, was unable to facilitate his physical attendance and he has attended via CVP. I accept he wanted to attend in person. There were on Day 1 some problems with sound. We checked, though, over lunch to make sure it was working properly. We also made sure at the beginning that we had the ability for the father to signal if he could not hear and, when he could not hear, the advocates very kindly moved around so that they were asking questions at one stage from the witness box.[16]I of course have a full screen picture of the father and, because we have a signal if he could not hear, I was able to ensure that he was following the hearing. As I have said, for his evidence the advocates went in the witness box to be able to ask questions, and we did another test over lunch. I set all that out because I am clear and of the firm judgment that the father was able to give clear and cogent evidence. He was able to fully participate in the proceedings and there was no impediment to his ability to a fair hearing, and that was not diminished in any way. I carefully monitored it to ensure that he was fully able to participate and, as I have said, the quality of his evidence was clear; he was able to follow, to answer questions, and to consider the papers which he clearly had a good understanding of. As an experienced trial judge, those are matters well within my trial management abilities.[17]I am sorry that the prison was unable to facilitate his physical attendance but this did not hinder his evidence.

The Law

[18]When the local authority applies for a placement order the court's paramount consideration is the welfare of Peter throughout his life. I have full regard to section 1(2) and section 1(4) of the Adoption and Children Act 2002. I also consider the whole range of powers under both that Act and also the Children Act 1989.[19]From case law, I can take the following principles;a. the paramount consideration of the court when considering an outcome for a child is of course the child's welfare.b. wherever possible, and in accordance with the child's needs, a child deserves the right to be brought up within their birth family.c. once the threshold criteria though has been established, the child's welfare is the court's paramount consideration. The duty on the court, as set out in Re N (A Child) [2024] EWCA Civ 938, paragraph 61, is to assess and evaluate all the relevant factors to be taken into account. i. "61. ... In that exercise, there is no starting point and certainly no starting point, as referred to by the Judge, 'that the best arrangement for a child is to be brought up by a parent'. It is right to acknowledge that the Judge said that she had 'to decide what is in the best interests of” the children and that she needed to undertake 'a global, holistic evaluation … before deciding which of the options best meets the duty to give paramount consideration to the child’s welfare'. However, the approach the Judge in fact adopted can be seen from what she said immediately after she had referred to the need to undertake 'a global, holistic evaluation'. She said, repeating an observation that she had made previously, that: ii. 'In evaluating the evidence and arriving at my conclusions to where the children should live, my starting point is that the best arrangement for a child is to be brought up by a parent unless there are reasons why this should not be the case'. (emphasis added) iii. This is, with all due respect, to assume the likely answer prior to undertaking the required balancing exercise and undoubtedly reflected the Judge’s reliance on Re L. iv. 62. No-one challenged that the Judge was entitled to take into account, in general terms, the potential disadvantages for a child of remaining in foster care nor of the potential advantages of living with a parent. However, these are, to the extent relevant in the particular circumstances of the case, part of the balancing exercise. There is no presumption or tilted balance in favour of the latter because the welfare outcome will depend on the facts of the case (emphasis added). In some cases, the former will be in the best interests of a child and in others, the latter will be."d. Where the plan is for adoption, it is an option of last resort and will not and must not be ordered unless it is demonstrated that nothing else will do, when having regard to the overriding requirement of the child's welfare. The term "nothing else will do" or "last resort" means that there is no realistic option, as the now President said in Re W (A Child) [2016] EWCA Civ 793: v. "The phrase 'nothing else will do' ... does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs."e. I must therefore grapple with the competing options and give them proper focused attention. I need to assess the positive and negative factors and look at the options against each other and to ensure that every option is fully considered against the other options, focusing at all times on Peter's welfare globally and identifying what outcome is most able to meet Peter's welfare needs.f. If I consider that adoption is the best outcome for Peter, then I must be satisfied that the welfare of Peter requires the consent of the parents to be dispensed with. I can do that under section 52(1) of the Adoption and Children Act 2002. I of course have the power to make orders for contact following a placement order, and I remind myself of the powers under section 26 of the Act.

Evidence, witnesses and findings

[20]The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to set out in this judgment – indeed any judgment – everything I have heard and read, and my job is not to rehearse all the evidence or the submissions. I need to highlight those matters that are relevant to my assessment and to explain how I have come to the decision I have.[21]This is an oral Judgment given at the conclusion of submissions.

Threshold

[22]Threshold was agreed at the IRH on 25th April 2025 in respect of all of the children and I adopt that. The local authority ask for an additional finding that Peter’s father has failed to be available to care for him as a result of his conviction. It seems to me that is a statement of fact and one that I adopt.

Peter

[23]Peter is four. He loves cars. He is, from all that I have read, thriving in foster care. He is, though, a little boy that requires routine and predictability. The social worker says that he seeks attention. He can struggle with the impact of younger children and will seek assurance from his carers. His previous carers were not able to care for him long term because they were not able to meet the needs of Peter and their own younger child, and it is very clear that Peter needs to be in a placement where he is the only young child. The social worker tells me that his responses are very much indicative of having received a young life characterised with violence – inconsistent and unpredictable caregiving – and indeed we know that Peter talks about the police raiding and doors being broken down. That must have been very frightening, and we do not know what else was going on in the house where there are weapons and drugs, and weapons being bought for a person's own protection.[24]I am clear that there is a positive relationship between Peter and his older siblings. He identifies with his family. He struggled with his speech and language when he came into foster care, although that is getting better. He still, though, very much struggles to express his emotions. He is, however you look at it, a very needy and vulnerable little boy. All professionals tell me that Peter needs a calm, settled, predictable environment. He needs a lot of attention, care and nurture, and it is only with that predictable, settled environment, attention, care and nurture that he will be able to make the progress that he is making. He needs a home where there are no other younger children because he perceives them as a threat and he will edge more into survival mode rather than being a four-year-old. The recent assessment of Peter says that he requires therapeutic support, but that cannot start until he is in a settled placement.

The father's involvement in Peter's life

[25]Peter, in months, is 52 months old. The father's involvement in Peter's life ended when he was seven months old. Since then the father has been incarcerated, and in my judgment his involvement has been extremely limited. His direct contact was limited but has not taken place for well over a year – indeed more. I appreciate he has tried with indirect contact. He has made a comic book and sent a DVD. The father, his release and delay.[26]The father tells me that he has a parole hearing on 12th August 2025. I am clear that he has been a model prisoner, although I accept that that is the way he normally behaves in previous times when he has been in prison. He accepts that he has an extensive criminal history. The first offending commenced in September 1987. The last conviction was in June 2022. He has a pending criminal trial which he believes commences on 26th April, but his criminal solicitors believe commences on 13th April next year. It is a huge case, I am told listed over five trials. The father's alleged involvement is limited to opening a company bank account for the alleged offenders, and his counts are Counts 22 and 23.[27]Count 22:
"Statement of offence: Participating in the activities of an organised crime group contrary to section 45(1) and (9) of the Serious Crime Act 2015. Particulars of offence: Between 24th July 2018 and 27th February 2020 agreed to participate in the opening of bank accounts and formation of companies that he knew, or suspected, would assist the activities of an organised crime group in return for financial reward; namely, payments of money into his personal account."
[28]Count 23:
"Statement of offence: Acquiring criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002. Particulars of offence: Between 24th July 2018 and 27th February 2020 acquired property - namely, money - which, as he knew or suspected, constituted or represented others' benefit from criminal activity."
There are counts, I am told, in the alternative.[29]I asked how long the trial was going to last, and I am told some six weeks so should conclude by the end of May 2026. If convicted, I do not know what the sentence will be. I am told it will fall within the Category C range, which is 26 weeks to three years in custody, but there would be mitigation in support of a non-immediate custodial sentence. Of course, on the other side he has his criminal history, his previous convictions may be relevant, and also his life licence. There is, for the father, in my judgment, enormous uncertainty.[30]With regard to his criminal history, they include criminal damage, theft, handling stolen goods, forgery, burglary, having imitation firearms, committing an indictable offence, to resist arrest, aggravated vehicle taking and the production of cannabis. He has spent considerable time in prison, going in and out over the last 20 years. He accepted that over the last 20 years he in fact has been sentenced to approximately eighteen and a half years in prison and is on a life licence.[31]I accept that, if the father is granted parole on 12th August, then the process takes, I am told, about eight weeks for him to be released. That was the evidence of the social worker, from I believe the probation officer, and that was unchallenged. He would then have to go to a halfway house for a period of time.[32]To assist the parties having head all of that I set out to the parties what would be a possible timeframe. This was nt challenged. It would be parole on 12th August; so out, say, on 7th October with eight weeks. Allowing him time to settle, say, for just over a week, any assessment would start on 17th October and the assessment report by 9th January.[33]If the further assessment if that were negative they would return to ADM and the quickest time for that would be 23rd January. Evidence from the parties: from the local authority 30th January; from the parents 6th February; Guardian 13th. And the earliest one could list this, reasonably, with the quickest possible timescale, would be February. To put it more bluntly for Peter, at Week 74 of proceedings, because of course the proceedings themselves were issued on 23rd September 2024.[34]Peter would be, by then, a year older, but of course what that all misses is the elephant in the room, which is that the father may not be able to care for Peter because he has a pending criminal trial starting in April and ending by the end of May 2026, or, to put it more bluntly, over a year from today.[35]All professionals say that Peter cannot wait that long, and the delay being looked for is not six months, but at least a year. Of course, if the father was convicted, then he would not be able to care.[36]On behalf of the father, it is argued that the risk of his offences has not been assessed. With respect, that is completely wrong. That is not the issue in the case. It is not the risk of his offences, but that his offending means that he is not available to care for Peter, and the risk of him being unavailable gives Peter instability.

X and Y

[37]I made care orders in respect of X and Y, and it is important to deal with them and set out where they are. I approved their placements and they are separate. X is in a specialist residential placement. I have already set out the heavy involvement of both X and, it is suspected, Y in criminality and how unregulated they are. There of course is a ten and eleven-year age gap between X, Y and Peter. X and Y have their own needs and vulnerabilities. They are on their own journey. I know at the end of January the social worker took Peter to see X to his placement. It was very difficult. At the end of Day 1, X went missing, and Peter was caught up in all of that. Mum was very upset and crying and Peter experienced that. X has still six outstanding charges.[38]Y is open to the exploitation team. Like X, he can be dysregulated. Since the sibling assessment, he has been found to have over £600 worth of coats and other items that he could not explain. He is subject to the high risk of harm team, and there is a real risk that Y is following very firmly in X's footsteps.[39]So, although there is a good relationship between Peter and his brothers, they are a risk. His brothers are struggling with their own very specific needs, and I have already said what home life was like with his siblings.

The father

[40]The father accepts his offending history. I have sympathy for the father as there is little that he can do to improve the position. He accepts that he cannot care at the moment because of his incarceration. He wrote me a very moving letter which I have read carefully. He thinks that about six months is what is required, but I am clear it is at least a year. He says that Peter will be okay in foster care during that time, even though Peter has already been there for some considerable time. He believes that when he leaves prison a friend will pay six months' rent for him and, although the criminal proceedings are pending, he is hoping for a good outcome although he size of the alleged fraud is considerable. He does not accept that his relationship with Peter is limited. He says that before his incarceration he was a very hands-on father. He made no application when contact broke down.

The Local Authority & Guardian

[41]Both the local authority and the Guardian say that Peter is a young boy that desperately needs security and stability. They tell me that Peter is unable to cope with competing with younger children. The father would say that, because he has been a model prisoner, he will be out. He has been granted enhanced privileges, and I have read what the prison say about him. All professionals, though, say that, sadly, Peter cannot wait for the father. The Guardian repeats the fact that the father just cannot change the current circumstances he finds himself in, but again says that the delay is just too much.

Discussion

[42]Can Peter wait a year for the father on the best case scenario working on the basis that he will be granted parole and will not be convicted in May 2026 or is that delay, and uncertainty outside of his timescales? Does Peter’s welfare require a decision now ?[43]I am of the firm judgment for the reasons I have set out that the delay the father seeks is a year. The outcome is very unknown, because of course nobody can guess the outcome of the criminal trial, or indeed the parole hearing, but in fact I think the parole hearing is a red herring. It is the trial next year which is the other big issue. So what the court is really being asked is to delay in the hope that something may happen and for more time, but with the purpose being unclear. I appreciate that sometimes there is very good reason for adjourning decisions for information, but in this case the delay would be for a year from now.[44]When I look at the options before the court, I ask myself what the realistic options for Peter are, and they are these: i) a care order and long term foster care with a plan that at some stage there be an assessment of the father but, if the outcome of the criminal trial is a conviction then reconsideration of adoption ii) adoption.[45]Long term foster care has obvious benefits. It would mean that Peter would be safe. He could continue the relationship with his birth family, and particularly his older siblings. It would give the father time to see if he could be released and be able to resume the care of Peter in May next year.[46]The problem with long term fostering is that it is not permanent. The father's release and not being convicted next year is uncertain. It means that for Peter he would not have a sense of belonging. He would have the involvement of the State. Foster placements are inherently fragile, and I can take judicial note of my own experience of the number of foster placement breakdowns that children have and indeed that Peter is on his second placement during these proceedings. It does not have stability or security or lifelong benefits. It would also mean that Peter would get to a stage where, if the father was incarcerated, adoption would be much harder because he would be a year older. He would miss out on a year of stability and security if adoption were eventually in his best interests.[47]Adoption has an enormous negative because it severs the relationship between Peter and his parents. In respect of the father indirect contact would continue which is very similar to now, although not to the same level. There would be no direct contact at this stage between Peter and his parents. The local authority are proposing, provided it is safe, contact with his siblings, but it would be less, once a year – not perhaps six, as would be envisaged if he was in foster care. It would mean that the father's ability to care for him if he were released would not be there.[48]So it is a significant, an enormous, interference with family life. It goes to Peter's identity: who he is; his biology; his history. He will know who his parents are, and everybody tells me that he knows who his siblings are. At the same time, it would allow him to have stability and security. I am told he needs therapy, but that cannot start until he is in a stable placement. Adoption offers stability and security. It means that he will not have the interference of the State. It gives him the chance of normality, love, warmth and becoming a full member of a family.[49]I appreciate, in cases concerning young children in care proceedings there are sometimes very good reasons to adjourn a final decision in order for the court to get better information. The court must deal with matters justly. Articles 6 and 8 are fully engaged. But, at the same time, delay is harmful to children. Section 1(2) of the Children Act is clear. For Peter, the time of weeks and months is significant. A year is enormous. It is a quarter of his life. The court must think very carefully before it pushes the pause button and adds to Peter's delay.[50]Therefore, when I stand back and I bring all these factors together in a holistic analysis, I am clear that, sadly, the only realistic outcome which meets Peter's need for stability, for security, for therapy, and within a reasonable timeframe and throughout his life, it is a placement order. I accept that that means that I am going to sever the relationship with him his parents and siblings, but, by ensuring and recording that there should be contact subject to a risk assessment, between Peter and his siblings that relationship will continue. In my judgment, a delay of a year just cannot be justified for Peter. His welfare and needs means that he cannot wait. I accept the evidence of the social worker and guardian in this regard. The father's position is just so totally uncertain. Even if he were to get parole in August and be released in October, Peter could not be placed with him until May 2026. Although I feel nothing but sympathy for the father, Peter just cannot wait.[51]In my judgment, long term foster care will mean for Peter instability and I accept the evidence of the social worker and the Guardian. In my judgment, therefore, this is an overwhelming case where placement for adoption is the only outcome and nothing else will do. It is both necessary and proportionate. Threshold being agreed, I make the care order as sought by the local authority. I approve the plan for adoption. I make the placement order on the basis that it is the only order that will meet Peter's needs throughout his life. As such, the consent of the parents must be dispensed with.[52]In coming to that decision, I of course have considered firmly the factors in section 1(4) of the Act. I am clear that Peter, were he to tell me, would want to be brought up within his family, but he is only four. His life so far as been chaotic. With regard to his particular needs, those early years make him particularly vulnerable. The way that he is in foster care clearly highlights that and his needs for stability and therapy are, in my judgment, sharp.[53]Any delay and any instability will be harmful to him. I acknowledge that he has a relationship with his siblings and one I will do my best to continue, subject to the risks that they may pose. In respect of the mother, of course, her attendance at contact has been very limited, and in respect of the father you cannot get away from the fact that he was, sadly, removed from Peter's life when Peter was seven months old. There is nobody else who is able to care for him, and although this order will be in the teeth of his siblings and his parents, it is, sadly, for him and his welfare the right order and the order that is on the facts both necessary and proportionate. Accordingly, I make the placement order as sought. -------------------------------------- Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone No: 020 7067 2900 DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com