K (A Child: Post Adoption Placement Breakdown), Re [2012] EWHC 4148 (Fam)

Neutral Citation Number: [2012] EWHC B9 (Fam)Case No EY11CO0084
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY
Before His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
(Judgment handed down 27 th July 2012)
Re K (A Child: Post Adoption Placement Breakdown)
Miss Elizabeth McGrath for the Local Authority
Miss Martine Kushner for the parents
Miss Elizabeth Walker for the child
JUDGMENT
Date 2012-07-27
[1]Coventry City Council (‘the local authority’) applies to the court for a care order in respect of a child who I shall refer to as K (that is not her real name). K is 15½ years old. She was adopted in 2004. Her adoptive parents are MG (‘the mother’) and FG (‘the father’).

K’s early history

[2]K is the fifth youngest of six children. K’s birth family first became known to Bradford Metropolitan District Council (‘Bradford’) in 1995 as a result of an unexplained injury to one of the older children. Subsequent concerns included inappropriate sexual behaviour involving some of the older children and allegations of sexual assault against the birth mother’s then partner. A Child Protection Conference was held on 2nd July 1999 and the names of all six children were placed on the Child Protection Register under the category of sexual abuse. On 14th February 2000 the children’s names were removed from the register. On 7th March 2000 the local authority closed its case file. By then the birth mother’s former partner was serving a six year prison sentence for offences of indecent assault and affray.[3]Concerns about the family persisted. These included the birth mother’s lack of adequate control over the children; her long history of mental health difficulties; the children’s poor school attendance; the children’s physical appearance at school; the birth mother’s lack of co-operation with social workers; reports of the children being left home alone and on occasion being locked in the house alone; and the physical conditions within the house which, on occasions, were noted to be appalling.[4]The local authority issued care proceedings. On 8th August 2001, having obtained interim care orders, K and her siblings were finally removed and placed in foster care.[5]In a written statement prepared for the Bradford proceedings, K’s foster mother said that K and her two siblings were very scruffy and dirty when they first arrived. They had very bad head lice. When she took K to visit the family dentist, the dentist advised that four of K’s teeth were rotten. Following x-rays she had eight teeth removed. The children did not appear to have routines. K did not want to go to bed, saying that when at home she often played out in the dark. K spoke about her mother’s boyfriend throwing video-cassettes at her mother and about them arguing and him kicking the door.[6]Although the foster mother noted that academically K appeared to be doing well at school, she also noted that her teacher had reported problems with defiant behaviour.[7]The final report of the Bradford Children’s Guardian addressed issues which find an echo within these present proceedings. She said that in her opinion, ‘all the children have been deprived of consistent parenting and they are all extremely needy children. [K and her sister Rosie] do not appear to have significant attachment to a primary carer. Both present as indiscriminate in their relations with adults, freely going to any adult for attention…In my view with preparation and a good level of support following placement, the three youngest children can effectively move onto new families, none of the younger children appear to have particularly strong attachments to their mother or siblings.’[8]K was presented to Bradford’s Adoption Panel on 4th March 2002. In a report prepared pursuant to Schedule 2 to the Adoption Rules 1984 the author notes that K, ‘will not show affection, but will respond to hugs and kisses. [K] has difficulty in accepting discipline and will push the boundaries. She is described as sly and devious at times…’ The report goes on to note that at school ‘There have been incidents when [K] has taken things that do not belong to her’.[9]Section 6 of the Schedule 2 Report sets out a general overview:
‘K is a popular child who has a warm and friendly personality. K has met all her developmental milestones. She shows her emotions in an age appropriate way. K needs a permanent family who can offer her stability and unconditional love. She also needs a family that can offer her the appropriate boundaries and stimulation to enable her to reach her full adult potential. K is used to being in a busy household but she also enjoys one-to-one attention and can amuse herself. Although K interacts well with other children she would benefit from being in a home where he (sic) does not have to compete for attention.’
[10]In her conclusions, the author of that report states that, ‘K has had a lot of instability in her life, lack of routines, boundaries and has had her education and health needs neglected. She needs to be able to build up the security and stability of relationships during the rest of her childhood so that she can enter adulthood from a firm basis. K can be a demanding child, liking one-to-one attention, but is also very rewarding to care for. She therefore needs carers who can give him (sic) the attention and boundaries she requires and can help channel her energies into constructive pastimes. She is a child who craves ‘normality’ and although she would have achieved this with her current foster carers, it would be detrimental to her welfare, given her age, to leave her in long-term foster care if an adoptive family can be found.’[11]The Bradford Adoption Panel made a ‘best interests’ decision that adoption would be in K’s her best interests. On 30th April 2002 Bradford Family Proceedings Court made a final care order and an order freeing K for adoption.

The adoptive parents

[12]FG and MG have been married for twenty-five years. They have two children from their marriage, Chloe and Rachel. Chloe and Rachel are now aged 20 and 18 respectively. They are both at university.[13]MG is 45 years old. She has been a school teacher for 20 years.[14]FG is 48 years old. He is self-employed, running his own business.[15]MG and FG are committed Christians. They are Roman Catholics (the significance of which will become apparent later in this judgment). Their decision to adopt was borne out of a desire to help a child less fortunate than their own children. They approached Coventry City Council in February 2000. In their Form F it is recorded that they ‘do not feel able to take a child who has been sexually abused or who displays sexualised behaviour because of the effect this might have on Chloe and Rachel.’ It was recommended ‘that they are approved as adopters for one child of either sex aged between 4 and 6 years with no major health or emotional problems.’[16]MG and FG were approved as adopters on 22nd August 2001.

The local authority’s records

[17]Before I consider the history of the placement it is necessary to say something about the presentation of the local authority’s records. In charting the history of a local authority’s engagement in the life of any family, its records are a key source of information. When a family becomes involved in court proceedings, those records are likely to be an important part of the forensic enquiry. In this case, the standard of the local authority’s presentation of that material to the court has fallen far below that which the court is entitled to expect.[18]The required content and format of court bundles is set out in simple, clear, easy-to-follow terms in Practice Direction 27A to the Family Procedure Rules 2010. The Practice Direction’s repeated use of the word ‘shall’ makes it clear that compliance with the Practice Direction is mandatory. The Practice Direction requires that bundles ‘shall contain copies of all documents relevant to the hearing, in chronological order…paginated and indexed’. It goes on to provide that the bundle ‘shall be contained in one or more A4 size ringbinders or lever arch files (each lever arch file being limited to 350 pages)’.[19]In the index to the hearing bundle in this case, section K is described as ‘Social Care documents’. This section runs to 1,350 pages. It is contained within three lever arch files. The documents in this section are not in chronological or, indeed, in any other discernable order. There is no indexing of these documents. Several documents appear more than once at different points throughout this section. Even accepting that some degree of redacting may have been necessary, it is difficult to understand the purpose of including more than 150 pages in which the entirety of the text has been completely blacked out.[20]This key section of the hearing bundle is disorganised and chaotic. In the words of Bracewell J, it is ‘a jumbled mass of documentation’ (Re E (Care Proceedings: Social Work Practice) [2000] 2 FLR 254 at p. 257). It has hindered rather than assisted the forensic process. Twenty years ago Ward J (as he then was) memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The pressure under which modern family judges are required to work is such that they simply do not have the time to be ‘forensic ferrets’ searching through inadequately prepared and disorganised hearing bundles in order to identify key information.

The placement

[21]The possibility of K being placed with MG and FG was first discussed with them in September 2002. According to a statement by their adoption social worker, Gail Helfet, in February 2003 she went with them to meet with the psychologist who had been advising K’s foster carer. In her written statement, Ms Helfet says that she ‘noted at the time that the psychologist was of the view that K was a child who could make secure attachments. The foster carers described K as an open and truthful child and they had seen no lying or stealing behaviours from her.’ It is common ground that although the psychologist had been advising the foster carer he had not undertaken any work with K. Indeed, it is accepted that he had never met K.[22]On 17th March 2003 the Bradford Adoption Panel approved the match. Introductions took place. On 19th April 2003 K was placed. K was six years old. MG and FG subsequently issued an application for an adoption order.[23]The Schedule 2 report for the adoption proceedings was prepared by Gail Helfet. Given all that has happened over the last four years it is appropriate to note the very positive beginnings to this placement. Ms Helfet said that, ‘K has made significant progress in all areas of her development whilst in her adoptive placement. She responds to praise…She has settled well into her placement. She has thrived whilst in the care of her new family…’ With respect to the adoptive parents Ms Helfet said that, ‘They have a good understanding of the nature and effect of adoption and are sensitive to the needs and feelings of a child who has been removed from their birth family. They are very child orientated and felt that they had a good deal to offer such a child. In the time that K has been with this family she has blossomed. MG and FG have a great affection for K and feel that she has fitted into their family very well…They are realistic about the limitations, which K’s early life experience may place upon her but they are committed to doing the best for her and encouraging her to grow in confidence and ability…The adoptive family are able to offer K a secure, loving family experience throughout her childhood and beyond. There is considerable evidence that MG and FG are experienced, competent parents who can meet K’s needs…’[24]A final adoption order was made on 4th August 2004.

The history of the placement

[25]On 20th October 2004 the father telephoned the Adoption Support Team expressing his concern that K had downloaded pornographic images from the internet and shown them to six children at school. K was suspended from school until after half term. K was then aged 7. The family were offered post adoption support until late 2004.[26]Further problems arose in 2007. The parents again sought assistance from the Post Adoption Team. In December 2007 Ms Helfet met with the mother to discuss concerns about K’s behaviour. K was taking things from her sisters’ rooms, was stealing (the mother often found things in K’s school bag that didn’t belong to her), was trying to hurt herself (she would bang her head on things and had recently put her school tie around her neck and pulled it tight), was unusually independent for her age, was at times walking out of the house and down the road, day or night (including one occasion when she had climbed out of the living room window), and was blaming the mother for not being able to live with her birth family. Ms Helfet arranged for the mother to have a consultation with CAMHS.[27]In January 2008 Ms Helfet had a meeting with Julia Davis and Jane Francis, senior case workers in the local authority’s Post Adoption Team. It was agreed that Ms Davis would contact Bradford to arrange to have access to K’s social work files.[28]Ms Helfet reports that, ‘The files in Bradford recorded the severe neglect that K and her siblings had experienced, birth mother’s mental ill health and drug use and the sexual abuse of K’s 3 older siblings by K’s father…The records described some incidents in more detail than had been available at the time of K’s placement with MG and FG, for example describing how birth mother had injured herself in front of the children by burning herself with cigarettes and cutting herself with glass. There were also indications that K had at least witnessed the sexual abuse of her older sister…though it was unclear whether she herself had been sexually harmed.’ Ms Helfet notes that ‘most of this information was given to the adopters at the time of the placement but in general rather than specific terms.’

Life story work

[29]In June 2008 the Post Adoption Team began life story work with K and her parents. K was then aged 11. This was the first time any life story work had been undertaken with her. This marked the beginning of a sustained period of active work with K and her parents.[30]In a report dated 6th January 2009 Ms Davis notes an incident which graphically depicts the kind of challenging behaviour the parents had to contend with. She records that ‘…recently K was sent to her room to calm down, having become hysterical after being challenged about taking money from her sister’s purse. When FG went upstairs 15 minutes later, K seemed to have disappeared. Having searched the house to no avail FG set off in his car but still could not find her. On return to the home, he decided to stand very quietly outside her room and after 15 minutes heard K stirring. She was on top of the wardrobe, hiding behind clothes.’ Ms Davis went on to note that K ‘is very controlling…Julia and I have observed how controlling K can be…’[31]The life story work was undertaken over a period of twelve months. In their written statement for these proceedings, Ms Francis and Ms Davis reflect on the outcome of the life story work:
‘The parents were offered advice and strategies to parent K according to her needs as a child who had experienced trauma and severe neglect, both through discussions in the sessions and in parent mentoring sessions. The discussions focussed on developing their understanding of the impact of early trauma on K’s development and behaviour and to enable them to parent K using therapeutic parenting strategies… Through requesting the work, the parents demonstrated a commitment to supporting K with her difficulties. There was some evidence of warmth and empathy with K. As their struggles to parent K became more pronounced, this appeared to decrease… They struggled to implement the strategies given and reverted to their established parenting style, particularly when they were under stress which indicated the extreme pressure they were under. They would articulate how they were “running on empty” and “at the end of their tether” and FG said on several occasions this was not what he had “signed up for”. Jane Francis and Julia Davis acknowledged with the family that given K’s early traumatic experiences she would continue to struggle and present with challenging behaviour – and that K and her parents may need to seek further therapeutic support as she grows up.’

Child and Adolescent Mental Health Services (‘CAMHS’)

[32]On 26th November 2008 Ms Davis wrote to CAMHS asking for an ‘urgent referral…as K’s parents and myself consider a psychological assessment could help build a picture of what services K might benefit most from’. That referral led eventually to some play therapy. On 5th August 2009 a note of a telephone conversation with Jacqui Mitchell, a social worker working for CAMHS, records that the play therapist ‘has found K to be over-familiar, quite rigid, poor concentration, lacking in spontaneity and comprehension…Jacqui and I discussed how K lacks imagination and whether her behaviour is all attributable to the huge attachment disorder she has or possibly some sign of autistic spectrum disorder. She also lives in quite a controlling environment.’[33]On 16th July 2009 Jacqui Mitchell completed a Multi-agency Referral & Initial Information Form, referring the case to the local authority because of her concerns. Ms Mitchell said that ‘K is becoming increasingly difficult in the home. She has run away…Unaware of risk to herself, defiant and angry with her parents…K seen in CAMHS since April 09…I am concerned about K’s emotional health and her anger. She is at risk outside the home and beyond parents (sic) control. Parents have reached the end of their management strategies.’[34]In November 2009, in a letter from Jacqui Mitchell to the local authority, the nature and extent of K’s difficulties were set out very plainly. Ms Mitchell said that:
‘K’s early history is one of abuse neglect and violence; she became a resourceful and inventive little girl within this environment in order to survive. K suffers from significant attachment difficulties; she has minimal problem solving skills preferring to run away; she will steal and lie; she is fickle in peer relationships and can chose friends who are ‘less than desirable’; she has some speech and language difficulties in that she is slow to process information and can get overwhelmed with information… K struggles when unsupervised, she is poor at choices, she is easily led, she has poor judgment, and she can get in a lot of trouble with inappropriate comments to peers… K is currently being seen by CAMHS…Art Therapist…The aim is to begin to help K to understand K – she has little or no understanding of her own feelings, she struggles to identify emotion of any sort, and her interaction is mostly superficial.’
[35]Ms Mitchell outlined the difficulties the parents were experiencing in coping with K. She said that, ‘Within this family there are quite high expectations in relation to behavioural and social time. K has in general fitted in well with the activity side of family life. She will do Irish dancing, she will swim, she runs and she currently is roller-skating every week… The parents have struggled to change their expectations of K; they made allowances for the first two years of placement, but then felt she needed to be treated like their own children and began to expect her to behave as one of the family. Initially K was able to manage this…however as she has become older the expected move to more independent actions has been very difficult and has exposed the deficit in K’s ability to grow up in the same way as other girls… K’s parents are coming into CAMHS every 2 - 3 weeks for work with me…The aim of this work is to help parents manage some of the difficulties by advice around changing their style of parenting and specific tactics for specific issues. Parents are very stressed by the process and I think some of the changes they are being asked to make are very alien to their parenting style. From an outside viewpoint the family seem to have unhelpfully high expectations and they appear particularly rigid about some pieces of behaviour which could be classed as trivial…However, K will need to stay living with this family if she is to make use of the start they have given her. If she comes into care I fear she will revert to her other self which is the child of a family in which she grew up. She will easily become a street kid, wandering off, and making poor choices. Within this family she has a lifestyle and some of her own expectations which are better than her birth family; K can with some support manage to access this lifestyle and as she matures she will hopefully be better able to self monitor. In the mean time we need to help the family manage K as a much younger child something which they find very stressful. Her stealing and running away also cause considerable difficulty both at home and with peers.’[36]Ms Mitchell recommended that ‘The family need an opportunity to have a break from K, to relax and operate ‘normally’. With K in the home they have to be hypervigilant 24 hours a day, a stressful and tiring process. This is then a request for social care to support the finding of some foster carers who can offer once a month or once every 6 weeks respite. Not to be used as punishment or reward for behaviour, but to be explained as a break for everyone…K herself knows that all is not well at home and I believe she will understand the need for this respite both for her and her parents. I believe without this level of support there is a very high risk of K needing to come back into care something which needs to be avoided if at all possible.

Respite care and accommodation under s.20

[37]By mid-2009 the pressure upon the parents had become acute. On 20th July 2009 the father asked the local authority to provide respite care. He was told that the local authority was unable to provide respite care. On 2nd December 2009 the father asked again. Again the request was declined. On 3rd December the father made it clear that he and the mother ‘are desperate for a break’. A further request for respite care was made on 7th December. That, too, was declined. On 23rd December it is noted that the father again said that he and the mother ‘are desperate for respite’. Still no respite care was provided.[38]Another request for respite was made on 29th December. The father telephoned the Emergency Duty Team. The social worker records that the father had called ‘to say that they were having major problems with K, she was smashing things in the house and refusing to do anything that she was told. Parents were both at the end of their tether with her and requesting accommodation’. The local authority agreed to accommodate K.[39]K very quickly asked to return home. She returned home on 31st December. The problems with her behaviour continued. The parents continued to struggle. A note in the social work running record, dated 29th January 2010, records ‘Professionals meeting…Discussion focused on very stressful current situation for family as K is at home and Panel rejected the request for respite…The social worker will return to Panel to make another request for respite…’[40]K was accommodated under s.20 Children Act 1989 from 23rd February until 14th May. She returned to the care of her parents on 14th May her foster carer having indicated a wish to terminate the placement because of concerns about K’s behaviour towards the younger children in placement.[41]Still the problems continued. On 11th August K refused to remain with her parents. The Emergency Duty Team were concerned that K may abscond. She was placed in foster care. It is unclear precisely when this period of accommodation ended but it appears to have been some time in late September.[42]During the course of the next few weeks K’s behaviour continued to be very difficult. She smashed items in her bedroom. She hit herself. She banged her head against the wall. The parents were finding it very difficult to cope.[43]In November the family’s allocated social worker, HR, put in a request to the Complex Cases Panel for funding to enable K to attend a residential school. At the time, K was attending an ordinary state secondary school. Some of the social work records give the indication that problems at school were far less than those at home. The application to the Complex Cases Panel shows that that was not the case at all. That application is supported by a statement from the school. Its says that K, ‘has been with us since September 2008. During Year 7, we experienced no issues with K’s behaviour…K’s behaviour slowly deteriorated through Year 8. It started off with her being cheeky to staff and stiring (sic) trouble between friendship groups. She then started truanting, stealing from school, and local shops. It got to the point towards the end of year 8 where K was truanting more lessons than she arrived at. The lessons she was attending, she was seriously disrupting the teaching…She was leaving the school site and then running away from home. She was very rude to staff and making some very rude and upsetting comments to her peers. K got in with a bad crowd of girls who were the ones orchestrating disobedience, disruption and defiance, but then would set K up to be the fall guy and get her into trouble. All the while this was going on, K believed these people were her friends…K refuses to deal with the consequences of her actions. She always removes herself from the blame and it is always somebody else’s fault. She cannot join up the dots when it comes to actions and consequences and feels that if something happened yesterday then it is forgotten and it is unreasonable of us to punish her for that…At school we have used many strategies to try and combat K’s behaviour…We are at the stage now where K has been working in our Referral unit…As the reintegration progressed it became clear that there had been no change in K’s behaviour over the summer break and she spent another week in the Referral centre due to her difficult behaviour. As we are such a large school, it is extremely difficult to keep tabs on K if she wants to abscond or not be found then it is very easy for her to do this. She does not have the skills required to make the right choices and is very easily led. She would benefit from being in a smaller environment where it is easier to keep an eye on her and guide her in the right direction.’[44]The Complex Cases Panel met on 23rd November. On 24th November HR informed the parents that, ‘The panel suggested that K, should go to a main stream residential school rather than a specialist residential due to her capabilities within education. They have agreed that should you (emphasis supplied) find a suitable residential school that the Local Authority will assist with paying the cost of this. Panel agreed to pay 50% of the cost.’

Family and adolescent support service (‘FASS’)

[45]In the autumn of 2009 the local authority agreed to provide assistance from its Family and Adolescent Support Service (‘FASS’), a service which works with families in crisis. A FASS worker, Nina Aldous, worked with K and her parents between 5th October 2009 and 8th December 2010.[46]When she began working with the family Mrs Aldous knew nothing about attachment disorders. By reading and arranging to go on courses, Mrs Aldous took positive steps to learn about attachment disorders. Her industry and her commitment to this family are highly commendable.[47]The family found Mrs Aldous to be very supportive. It is clear that the parents and K had a good relationship with her. Mrs Aldous speaks positively about the parents. She says that, ‘While working with the parents I found them to be polite and welcoming for me. They had clear rules and boundaries and high expectations for K but unfortunately she did not always respond to these…At no time did I hear either parent shout at K when she had misbehaved. In my presence they always spoke to K in a firm and clear manner. I found their reasoning with her very acceptable. I would then support them in their views to attempt to make sure K understood.’ She described them as ‘a supportive family’.[48]Mrs Aldous notes with sympathy and understanding the stress being experienced by the parents. She refers to conversations with the father in which he had told her that ‘he and MG could not cope with K any more and they would like her placed elsewhere…He said K is “mentally and physically hurting them and they can’t continue on this basis”…He said “the price we are paying is too high and she is getting worse as she is getting older”.’[49]It is the parents’ case that in between the crises family life was normal and good. Mrs Aldous agreed. She said that there were what she called ‘spikes of trouble’ but that there were also very good times as well.

The end of the adoption placement

[50]A professionals’ meeting was held on 8th December 2010. K was missing. The parents say that they were not allowed to attend this meeting. It is clear from the minutes that the tone of the meeting was deeply hostile towards the parents. The minutes give the impression that the meeting considered the parents to be responsible for K’s problems. The minutes refer to the parents being challenging and rude to professionals. The Team manager said that the parents ‘don’t meet us half way’. Another participant said that ‘there was no warmth shown by parents’ and that the parents were ‘always happy to run [K] down’. Claire Edwards, a police officer, said that the parents were ‘torturing’ K. The minutes record that ‘Everyone felt that [K] does not get any emotional support and nurturing from parents’. The representative from the Education and Learning Service said that ‘Schooling is not going to make any difference, [K] needs warmth from parents. Residential school would not be good role model for her.’ Jacqui Mitchell (CAMHS) said that K ‘needs good therapeutic fostering home, good carers will manage her behaviour’. The minutes go on to record that ‘Members feel that parents are high risk abusive parents.’ Andy Waugh, Intake Service Manager, said that ‘Professionals have offered as much as they can. Nothing else seems to have worked, only option is to bring her into care.’[51]A meeting then took place with the parents. The parents agreed that when K was recovered she should be placed in residential care out of city. A place was identified for her at Greendale Residential Children’s Home in the south west of England (‘Greendale’). The parents’ agreed to K being placed there.[52]In the event that K should be recovered outside normal office hours an out of hours plan was agreed. The plan was that K should stay with her parents overnight and then be taken to Greendale the next morning. That plan should have been recorded on the local authority’s system and should, therefore, have been accessible to the Emergency Duty Team.[53]The parents spent all weekend looking for K. They leafleted every house on the estate where they thought she might be. Late in the evening of 11th December the father located K at an address in Warwickshire. He informed the police. The police were able to recover K. Having recovered her, the police contacted the local authority’s Emergency Duty Team. The Emergency Duty Team could find no record of the out of hours agreement referred to by the father. Unable to establish the existence of that agreement, the police exercised their powers under s.46 Children Act 1989 to take K into police protection. During the early hours of the morning of 12th December the police transported K to Greendale. She arrived at Greendale at 3.00 a.m.[54]I am satisfied that there was an agreement for a sensitive and orderly transfer of K from Coventry to Greendale. Had that agreement been adhered to there would have been no need for the police to exercise their powers under s.46 and no need for K to have been taken to Greendale in the middle of the night. The parents’ concern about the way in which K’s move to Greendale was carried out is in my judgment both understandable and justified.

Greendale Residential Children’s Home

[55]Two days after her arrival at Greendale, K made an allegation that she had been assaulted by the father. The allegation was investigated by the police. On 5th January 2011 K was interviewed by the police in accordance with the guidance given in Achieving Best Evidence. On 21st January 2012 both parents were arrested for ill-treating K. Both denied K’s allegations. Both were bailed with conditions that they should not have any unsupervised contact with any child under the age of 16. Given her occupation, for the mother that was a serious restriction. On 21st February 2011 the police decided to take no further action. Neither parent was charged or cautioned.[56]It is clear that after the professionals’ meeting on 8th December the local authority’s focus was on child protection. K’s allegation of ill-treatment added to the local authority’s concerns. An Initial Child Protection Conference was convened. That meeting was held on 5th January 2011. Although the parents were aware that a meeting was to be held on 5th January they say they were not informed that it was to be an Initial Child Protection Conference. They believed it was a routine meeting of the kind they had attended in the past. I accept their evidence on this issue.[57]The social worker, HR, visited the parents’ home early on the morning of 5th January to deliver her report. The parents were not there. They had taken Rachel for a university interview. The conference took place in their absence. The minutes of that meeting identified the following concerns:
‘Issues around the methods used to manage K’s behaviour. The lack of emotional warmth from parents towards K. A lack of insight into K’s emotional needs and inappropriate comments made to her by the parents. Lack of engagement with social care. The parents refusing to provide K her personal belongings during this period of care. The parents using inappropriate methods to ensure that K …does not abscond (Alarm systems and locks on windows). K’s lack of insight into how her behaviour places her at risk. K’s association with possible risky adults.’
[58]The parents have found it difficult to come to terms with the breakdown of their relationship with K. Echoing concerns expressed at the Initial Child Protection Conference, PC, the manager at Greendale, catalogues concerns about the parents’ failure to provide all of K’s clothing and personal effects, their delay in providing her life story book, their delay in giving permission for K to participate in clubs and organisations, their delay in informing K of the death of her (adoptive) maternal grandfather (who died on 3rd January 2011), and about their attempts to prevent K from having an ongoing relationship with her godfather.[59]One issue that continues to upset K is her parents’ failure to let her have the medals and trophies she won at Irish dancing. K has mentioned this in all of her recent letters. The parents threw the medals away shortly after K’s admission to Greendale. They say they were then at a very low point and were upset to be told they couldn’t send Christmas presents to K. They accept that they shouldn’t have disposed of them but say that this is a reflection of the state to which all of this had driven them. Although they say that the medals and trophies can be replaced, they have not yet been replaced.[60]PC also expressed concern about a message posted by the mother on K’s Facebook page on 17th May 2011 in which she wrote, ‘Just wondering how you are doing? Hope you are well and happy. I realise that you don’t want to be part of our family any more – so am thinking about your 2010 Christmas presents which have been kept here for you so far, as I thought things might have been better resolved by now. Let me know what you are feeling, as I would like to redistribute them to others if you don’t want them, i.e. are no longer in our family. We can then formalise this legally and get your name changed etc., and say our goodbyes. (Ex) Mum xx’ PC says that K ‘was extremely distressed’ by this message and required a visit to the GP as her psoriasis returned as, too, did her incontinence.[61]The local authority relies upon these and other similar reports from Greendale as evidence confirming their own assessment of the parents as lacking in emotional warmth, lacking in empathy, lacking in commitment to work co-operatively with professionals and abusive. Dr John Richer, a psychologist appointed as a single joint expert witness in these proceedings, takes a different view. I deal with his evidence later in this judgment.[62]From the outset of the placement at Greendale the parents’ contact with K was problematic. In July 2011 contact broke down completely. The parents have had no contact with K for the last twelve months.[63]In May 2012 K sent the parents an e-mail. The e-mail was positive to the limited extent that it informed the parents about her exam results which she said ‘…proves to you that I can do well in school, it wasn’t just me messing around at school it was you at home that was preventing my learning, well now I can have good GCSE’s and do well in my future life unlike I could have done living with all of you!!! This is the end of it now, I don’t want to hear from you, FG, Rachel or Chloe again. Your making it seem like you care buy you don’t you just trying to hide the fact you have been caught and you can’t do anything about it except watch me do well in life!!!’[64]The mother responded positively, saying ‘K this is the first time we have heard from you in almost a year. We are glad that you liked your Christmas presents, and are enjoying your new mobile phone. You will always hold a special place in our hearts and family. You may think that we don’t care but actually we all care more than you can ever imagine and everyone hopes that your future will be good. You will not know what we think and feel, unless you talk to us. Your medals were thrown away at Christmas when we were so upset that we were not allowed to give you anything or see you. We are sorry because it could easily have been prevented… You are a very intelligent young girl and have always got good results, which we are certain will continue. You are also a talented dancer and a caring person. We continue to do our best for you and are delighted to hear from you, although we know that it is difficult for you, Mum & Dad’[65]K’s response was robust. She replied, ‘you are NOT my mum and dad for starters!...you have wrecked my childhood and you still are by contacting me, checking up on me on [Facebook]. I don’t want anything to do with you. Im extremely happy here at Greendale and I don’t need you interfering in my life anymore. You have caused enough damage in my life…’[66]It is clear from PC’s evidence that although, with their specialist expertise, staff at Greendale have to an extent been better able than the parents to manage K’s behaviour, her behaviour has at times continued to be challenging. She has absconded on six occasions. There has been one incident of self-harming, on 22nd June 2012, when she inflicted superficial cuts to her left wrist after returning home under the influence of alcohol. PC notes that K is very quick to lose her temper and that she uses her behaviour to control situations in order to achieve her desired outcome. There have been times when she has been verbally abusive, has thrown things around and, on occasions, has upturned her bedroom (as she did when at home). PC confirmed that if K puts herself in a position where she might come to harm or harm others then the staff will intervene by physically restraining her. Although that is an option of last resort it has been used.[67]PC supports the making of a care order. It is what K wants. It would give her ‘emotional space’. Although she believes that K understands that even under a care order her parents would still have parental responsibility for her she accepts that in her letters K gives the impression that she believes that a care order will sever her relationship with her parents.

The application for a secrecy order

[68]Greendale is an all-female unit. In December 2011 there were just four girls in placement. On 24th December K and the other three girls absconded. They returned a few hours later. On 31st December K told PC that whilst absent from Greendale she had been raped in a park. Her assailant was known to her. She gave PC the name of the youth concerned. Police investigations are ongoing.[69]Over the course of the few days following K’s disclosure her behaviour deteriorated. According to a note made by PC, on 2nd January 2012 K was exceptionally rude and abusive towards staff, ‘threatening to smash their faces in’. She took part in an incident involving the removal of a television from a locked bedroom which she and others had broken into. She was seen to throw plates of food at the walls and at staff, all the time screaming hysterically at staff. Staff became aware that K was holding a broken razor blade which she had taken from a disposable razor. Staff attempted to remove the razor blade from her and in doing so a female staff member sustained a deep cut as a result of K closing her hand tightly around the staff member’s hand to prevent her from removing the blade. K showed no response to the injury she had caused. PC accepted that on this occasion K had been beyond parental control. She went on to say that K ‘is beyond parental control when she wants to be’.[70]PC says that this incident ‘resulted in the need for [K] to be physically restrained for the first time since her accommodation. Staff had no other choice but to call the police as [K] had now assaulted to (sic) staff members and kicked a hole in the wall. K was arrested and remained in custody overnight.’[71]K told the staff at Greendale, the police, her social worker and the guardian that she did not want her parents to be informed about the sexual assault. She threatened to run away if they were told.[72]The local authority issued an application for permission to withhold information concerning the sexual assault from K’s parents (a ‘secrecy order’). The application was supported by the guardian. On 13th January Mostyn J granted an interim declaration absolving the local authority from its duty to inform and consult with the parents with respect to the sexual assault. The Attorney General was invited to appoint an Advocate to the Court.[73]The local authority’s application came on for final hearing before Roderic Wood J on 11th May. Having considered the report of the Advocate to the Court, Mr Simon Murray, both the local authority and the guardian acknowledged that the local authority’s application was unlikely to succeed. The application did not proceed.[74]A few days later the parents were informed about the alleged rape. K was told that they now knew about the allegation. Contrary to her initial threat, K did not abscond.[75]In the midst of all this there was a LAC review. That meeting was held on 5th March. The parents were not allowed to attend.

Social work support

[76]Whilst the support the family has received from the local authority’s Post Adoption Team and FASS has been good, that cannot be said of the support the parents have received from social workers allocated to work with this family. The picture that emerges from the local authority’s records and from the oral evidence presented at this hearing is that social workers allocated to this family have been quick to judge the parents and seemingly unable to make the link between the severity of K’s attachment disorder, her grossly disturbed behaviour and the profound difficulties this gives rise to in terms of parenting K.[77]Claire Lisseman was the first social worker to be allocated. She was allocated on 20th October 2009. She has not filed a witness statement within these proceedings. The second social worker to be allocated was HR. HR was involved with the family for around six months from 15th July 2010 to the beginning of 2011. During her involvement she made just two visits to the family’s home. She agreed that she should have visited more frequently.[78]HR recognised that the parents were at the end of their tether. Although at one point during her evidence HR agreed that there was nothing more the parents could have done to contain K at home, towards the end of her evidence it became clear that she supports the view expressed at the professionals meeting held on 8th December 2010 that the parents were ‘abusive’. She said that it was her view not simply that K was beyond parental control but that she was beyond parental control because of the parenting she had received from her adoptive parents.[79]HR ceased to be the allocated social worker at the beginning of 2011. On 15th November NT became the fourth allocated social worker. The intervening months are a grey area in respect of active social work. I am told that Hardev Sandhu was the social worker for part of that time but that for part of her watch she was off work sick. There is no evidence from her. The impression I am left with is that for a period of some nine months during 2011 there was little, if any, active social work.[80]In August 2011 the parents signed a working agreement. They agreed ‘to delegate the decisions about day to day activities for K such as dancing, clubs, camps, social events and holidays, friendship groups, to Coventry City Council or the manager of Greendale’. They also agreed not to contact Greendale by email or telephone save in the event of an emergency. There is no evidence of significant breaches.[81]For its part, the local authority agreed to e-mail the parents ‘on a weekly basis to update them as to K’s life at Greendale’. There has never been a time when the local authority has consistently provided the parents with regular updates.[82]The Working Agreement also provided that the local authority ‘shall ensure that the parents are consulted in writing on…significant health concerns’. In November 2011 the parents were told that K was experiencing bad period pains and had asked to see the sexual health nurse. The next the parents heard was in March 2012 when they were informed that K had had a contraceptive implant fitted. They had not been asked for their consent and neither had they been given advance notice that this procedure was going to be undertaken. The local authority appears to have been oblivious to the significance of the fact that this is a Roman Catholic family.[83]At a family and professionals meeting held on 8th December 2011 it was agreed that the parents should in future be provided with updates every six weeks. That has not happened. It was also agreed that there should be a new Working Agreement. That, too, has not happened.[84]Since becoming the allocated social worker in November 2011, NT has never visited the family home. Although in her witness statements she refers to there being locks on the internal doors of the family home, in cross-examination she accepted that she had taken that information from the notes of HR and had simply assumed the detail to be correct. The parents say that there are no locks on internal doors. I accept their evidence.[85]NT’s first meeting with the parents was at court. Her second meeting, in November, was at the school where the mother teaches. She did not see the parents again until shortly after the hearing before Roderic Wood J on 11th May 2012, at a meeting convened to tell the parents about the sexual assault on K.[86]The father says that in the intervening months they became aware from K’s Facebook page that she was telling her friends that she had been arrested for an assault. He had asked NT if that were true and had been told it wasn’t. NT did not dispute the father’s account. It is clear that this incident was to do with ‘K’s life at Greendale’ and some detail should therefore have been provided to the parents under the terms of the Working Agreement. The order made by Mostyn J on 13th January 2012 did not entitle the local authority to withhold information concerning this incident[87]It was clear from NT’s oral evidence that she had found it difficult to know how to approach the parents in light of the order made by Mostyn J on 13th January. So she didn’t approach them.[88]The parents first witness statement is dated 3rd February 2012. It includes what the parents perhaps unwisely referred to as a list of ‘objectives’. The list was said to have been arranged in order of priority. The final item in this list was a proposal that K be moved to a residential unit closer to Coventry. At paragraph 12.4 of her second witness statement NT says that ‘Since she has had sight of the contents of the parents’ statement on the 7/02/2012 K’s psoriasis has flared up and she is suffering from enuresis on a frequent basis.’ In her third witness statement NT again refers to the parents’ statement, this time saying that she is very surprised that in that statement the parents should have talked about K moving away from Greendale given that their statement is ‘a document which K will see’. In her oral evidence NT said that she had not allowed K to read that statement but had simply discussed its contents with her.[89]I find it hard to believe that when preparing her second witness statement NT could mistakenly use the expression ‘has had sight of’ when she meant to say ‘has been informed of’. Whether K has seen her parents’ statement of 8th February 2012 or has simply been informed of its contents, given her fragile mental state I am in no doubt that it was inappropriate for NT to have shared the contents of that statement with her.

The findings sought by the local authority

[90]In its initial threshold document the local authority asserted that K ‘is suffering or is likely to suffer significant harm…attributable…to the care given to her or likely to be given to her…not being what it would be reasonable to expect a parent to give her’. At the IRH on 8th February 2012 the local authority indicated that it intended to file a revised threshold document alleging that K is likely to suffer significant harm attributable to her ‘being beyond parental control’.[91]In its final threshold document the local authority sets out 39 alleged facts which, if proved, it contends are sufficient to satisfy the s.31(2)(b)(ii) threshold. The parents accept 33 of those findings. The threshold document is appended to this judgment.[92]Fourteen of the findings sought relate to K running away from home. The parents’ case is that they were advised by the local authority that when K tried to run away from home they should not restrain her but let her go and that if she did not return within 30 minutes they should call the police. The police records disclosed by the local authority show that in the thirteen month period from 14th November 2009 to 11th December 2010 the father reported K as missing on twelve occasions. There is no evidence of any reports to the police prior to November 2009.[93]Eight of the findings sought relate to requests by the parents for K to be accommodated in order to give them respite. In November 2009 CAMHS social worker Jacqui Mitchell recommended that “The family need an opportunity to have a break from K, to relax and operate ‘normally’”. Several subsequent requests for respite care were refused. On one occasion the local authority’s response to a request for respite was to recommend that the parents undertake a parenting course.[94]Seven of the findings sought relate to steps taken by the parents (mostly the father) to restrain K. The parents say that attempts to physically restrain K were always a last resort employed at a time when her behaviour was so bad that there was a real risk that if not restrained she may cause harm either to herself or to them. The local authority’s position appears to be that physical restraint under any circumstances was not appropriate because of the risk of harm to K.[95]The FASS worker, Nina Aldous, said that the father had always been clear with her that the use of physical restraint had always been a last resort. She said that she knew they would always have tried negotiating with K before getting to the point where restraint was the only option left. She suggested that as a last resort, for example when K was smashing up her bedroom, the parents could have held K’s arms. She accepted that that would have been physical restraint. As she put it, it then boils down to the question of what physical restraint is appropriate as a last resort.[96]I noted earlier the evidence of PC that since her admission to Greendale there has been occasion when it has been necessary to use physical restraint.[97]The other findings sought by the local authority relate to damaging property, stealing property, and to the parents saying that they wish they hadn’t adopted K. The parents accept those findings.[98]The one glaring omission from the final threshold document is the failure to make any reference to the fact that K is suffering from reactive attachment disorder. That omission completely removes the underlying context for the local authority’s litany of criticisms of the parents’ parenting of K.[99]The parents challenge only six of the proposed 39 findings. They can be addressed quite briefly.[100]Finding 9 is that ‘On 14.02.10 the Second Respondent informed Nina Aldous that K had needed to be restrained by her sisters because she was banging her head on the floor.’ The parents deny telling Nina Aldous that K had needed to be restrained by her sisters. They say that they informed Nina Aldous of an occasion when K was lying on the floor and banging her head. The mother, Chloe and Rachel had sat around her and kept pushing pillows under her head to try and stop her hurting herself. K kept trying to push the cushions away. I accept the parents’ evidence on this issue. I find this allegation not proved.[101]Finding 10 is that ‘On 25.05.10 K left the family home and went to [another child’s] home. The Second Respondent reported her as missing to the police. He told EDT that K had stolen his mobile phone and that the First Respondent had located it in K's pants. She later returned home.’ The parents do not accept the words underlined. They say that the mother did not locate the mobile phone in K’s pants. I accept their evidence on this issue.[102]Finding 22 is that ‘K was located by the police on the morning of 01.12.10 and alleged that the Second Respondent had been angry with her on a number of occasions and had grabbed her and restrained her. The Second Respondent said to the police that during the previous weekend he had physically restrained K in order to prevent her causing problems and throwing things, he also said that he used ‘Team Teach’ restraint techniques. K told the police that she was unhappy at home and did not want to be there anymore The First Respondent told Social Care that they had used restraint due to K refusing to go shopping with them because K could not be trusted in the house alone.’ The father denies that he grabbed K or restrained her. The parents admit that they had ‘guided her to the car’. I accept that K may have perceived this as ‘restraint’. It is clear that there was some physical coercion in order to persuade K into the car. I find this allegation proved.[103]Finding 25 is that‘In order to locate stolen property the Second Respondent has strip-searched [K].’ The father denies that he strip-searched K on this or any other occasion. I accept his evidence on this issue. I find this allegation not proved.[104]Finding 28 is that ‘On a number of occasions in the period leading up to 12.12.10 the Second Respondent restrained K by pinning her down on the floor or lying across her to prevent her from banging her head on the floor and from damaging property.’ The father denies this allegation. The father denies ever having restrained K in this way. I accept his evidence on this issue. I find this allegation not proved.[105]Finding 29 is that ‘Due to concerns that K would abscond or steal her parents placed locks and alarms on doors, windows and on cupboards.’ The parents say that no locks have been placed on doors or cupboards as a means of containing K’s behaviour. They admit that window locks have been fitted though this has been to protect against burglars and as a condition of their house insurance. Chloe and Rachel had portable alarms in their bedrooms, which they could use if they chose. Again, I accept the parents’ evidence. I find this allegation not proved.

The psychological evidence

[106]On 4th August 2011 the court gave permission to the parties jointly to instruct Dr John Richer to undertake a psychological assessment of K. Dr Richer is a Chartered Consultant Clinical Psychologist. He worked in the Department of Paediatrics at the John Radcliffe Hospital in Oxford for over 30 years. He was Head of Paediatric Psychology. In 2010 he retired from the NHS and took up an honorary post at the Department of Physiology, Anatomy and Genetics in the University of Oxford. He has an international reputation. He is an expert witness of the highest calibre. I found him to be an outstanding witness.

K’s background and presentation

[107]Dr Richer sets out very clearly the challenge which these parents faced in caring for K – a challenge which, as he points out, would have tested the resources of any reasonable parent: ‘18. Her response to her extremely frightening early experiences, was to become highly avoidantly insecure, to retreat within a shell, denying her own feelings and becoming caring and compliant, including caring for her siblings. Whilst this enabled her to survive, the cost was that she failed to develop the degree of social understanding and skills that most children develop and became hypersensitised to threat, violence and rejection… 30. Avoidant children find close relationships stressful. K was offered a loving family and inevitably found this highly stressful, despite also desperately wanting that closeness, care and security. She tends to choose more distant relationships. An extreme example of this is her tendency to approach complete strangers and be familiar with them, something which carries obvious risks. Such children usually direct their most angry and aggressive thoughts and feelings to those closest to them, in this case her adoptive parents. For a long while her difficult behaviour was confined to home.[108]In Dr Richer’s experience, children with histories similar to K’s are very vulnerable and have a tendency to get themselves into risky situations.

Psychological assessment and prognosis

[109]Dr Richer was asked about the psychological disorders or difficulties from which K may be suffering After quoting extensively from ICD-10 Reactive Attachment Disorder of Childhood, he goes on to say that ‘40. K clearly meets the criterion for grossly inadequate child care. But the behavioural criteria are not met with the severity that that is described, although her difficulty in close relationships, her indiscriminate approach to strangers, etc. has been seen, but not with the frequency or severity that is usually seen as necessary for the diagnosis. Interestingly her mother has wondered whether she shows features of autism and this question frequently arises with deeply insecure children with her history, as can be read above, because of the difficulty the children have with showing empathy, remorse and the like. She is not autistic. All this merely illustrates the inadequacy of conventional psychiatric diagnoses to map the real world behaviour in a useful way. At best the diagnostic categories imprecisely point to some features of behaviour which may be useful in understanding a child’s problems, and in K’s case the diagnosis of RAD does usefully point to her insecurity and its aetiology and some of the puzzling behaviours she has shown, but it falls short of being a precise description.’[110]Dr Richer was asked to offer a prognosis for K’s future psychological welfare. Given the events of 24th December 2011, just seven weeks after his report had been completed, his answer to this question was almost prophetic. He said, ‘44. It is difficult to give a clear answer here. The worse scenario is that she goes down the path described in Crittenden’s type A5 A5 individuals use a compulsively promiscuous strategy (Crittenden, 1995) to avoid genuine intimacy while maintaining human contact and, in some cases, satisfying sexual desires. They show false positive affect, including sexual desire, to little known people, and protect themselves from rejection by engaging with many people superficially and not getting deeply involved with anyone. This strategy develops in adolescence when past intimate relationships have been treacherous and strangers appear to offer the only hope of closeness and sexual satisfaction. It may be displayed in a socially promiscuous manner (that does not involve sexuality) or, in more serious cases, as sexual promiscuity.

The parenting provided by K’s adoptive parents

[111]Dr Richer made the point that when children arrive in an adoptive family as late and as insecure as K did, many aspects of normal parenting do not work. In his opinion it was unsurprising, therefore, that some of the action taken by these parents, though well-intentioned, had not always been helpful.[112]The father, in particular, had presented K with firm expectations about how she should behave. Dr Richer said that, ‘33. …firmness about the wrongness of stealing, lying, and the rest, would normally be regarded as very appropriate - setting clear standards, etc. …[This] approach works with most children because there is the foundation of a reasonably secure attachment relationship. With K that foundation does not exist.’ He went on to make the point that, ‘the extent to which the family went, with restraint, locks, alarms etc. was considerable, and fuelled(i) by their determination and strong values but(ii) by following the strong value of wanting to keep K in the family(iii) their own frustration which lead them in desperation to adopt cruder methods of control than they would normally, in part because more communicative and empathetic approaches seemed not to have worked. In other words the very strength of their values probably meant that the escalation went further than it might otherwise have done.’[113]Dr Richer notes that the parents’ have strong moral values and focus on high achievement, ‘both usually applauded in our society’. However, this does not equip them easily to accept K unconditionally – ‘weaknesses, oddities, fears and all’. Dr Richer said that, ‘the parents need to examine to what extent their well intentioned efforts to help K, (which would have succeeded well with attached children) were actually perceived as emotionally distant, cold, critical and controlling. And which have lead others unfairly to characterise them as controlling, seeing them through K’s eyes. But the acid test here is not whether the parents have done the “right thing” from the standpoint of usual rules and values, they clearly have, but whether they have done the right things from the standpoint of achieving success with K. Here they have encountered the same difficulties which have defeated so many families of late adopted children.’[114]Parents faced with the kind of difficulties these parents were faced with ‘31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like K. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel. The vicious circles that the parents and K got into are seen in many families with insecure adopted children, where well intentioned efforts to help the children and structure their behaviour and protect them, only lead to the child becoming more resentful and alienated and angry… 48. Families who adopt children like K are often caught in what seems like a double bind. If they ease off close structuring of the child’s behaviour, the child may behave recklessly and/or antisocially, if they try to guide and structure they run the high risk of being seen by the child as restrictive and untrusting and be seen by others as controlling.’[115]The local authority seeks to characterise some of the parents’ behaviour towards K as ‘rejecting’. Dr Richer disagreed. He made the point that in many families trying to cope with a child’s challenging behaviour parents may say things they don’t mean. In this situation professionals need to be able to see behind the parent’s behaviour in order to understand that it is not evidence of rejection. It can also sometimes be the case that where a parent becomes very angry, paradoxically that anger can be therapeutic for the child’s relationship with that parent because the child deduces that the parent does actually have strong feelings for them.[116]Throughout his evidence Dr Richer was very clear that no blame can be attached to the parents for K’s problematic behaviour. On the contrary, in his opinion they deserve much credit - ‘one’s heart goes out to them’, he said.

K’s experience of the parenting she has received

[117]In light of his discussions with K, Dr Richer notes that the key issues for her were, firstly, that her parents had too high expectations of her as a result of which she felt a failure, especially in comparison with Rachel and Chloe; and, secondly, that her parents did not trust her like they trusted her sisters. Dr Richer makes the point that underlying both of these issues ‘10. …lies the yearning to be accepted and nurtured for herself. This sense of being valued and understood is established in most children very early in life and was not established in K, so when she came to this family, that need was buried beneath her strong avoidant strategies which had enabled her to survive. As she became more secure with them that need surfaced more. However it clashed with the family’s focus on achievement and excellence morally, socially and educationally. Such a focus is fine for secure children like Rachel and Chloe, they know they are valued. But K had no such basic knowledge because of her terrible first four years. So the impact of these proper and normally successful values would have been different in K than in most children and lead K to the feelings, which she had, of not being trusted and feeling a failure and, by extension was not a part of the family.’[118]It was clear that Dr Richer did not see the making of a care order as the solution to K’s problems. Although he acknowledged that K herself is saying that that is what she wants, it is his opinion that once her wish has been granted there will be some new demand which she will set her sights on. Dr Richer expressed concern that if a care order is made then the parents may just decide to walk away from K and, effectively, say ‘good-bye’. If there is no way back from the present position then that is likely to have a very negative impact on K. In his opinion it likely that at some point K will want a way back.

The approach taken by the local authority

[119]Dr Richer expressed concern that the local authority does not appear to have understood the extreme damage that K had suffered as a result of her early life experiences. In his report he says that, ‘35. What K hides is her desperate need for closeness and being accepted and nurtured, a need which most children get satisfied as infants and toddlers, but which were not satisfied in her…behind her negativity to her family, is a desperation to be embraced by them…What very few adoptive families, or professionals for that matter, are aware of…is the extremity of the insecurity and damage suffered by children such as K…’[120]Dr Richer was concerned by some of the language used by the local authority. He noted that in one of the social worker’s statements she referred to what she termed the parents’ ‘punitive regime’. He is concerned that this not just a particular use of language by the local authority but a particular mindset.[121]Dr Richer was also critical of the extent to which the local authority has disclosed case papers to K. I noted earlier that NT accepts that she has shown or discussed some of the parents’ written evidence with K. Dr Richer did not consider it to have been in K’s best interests for her to have been shown her parents’ statement.[122]In his second report, in which he responded to questions put by each of the parties, Dr Richer was particularly critical of the local authority’s questions. He says, ‘36. I turn now to the questions from the Local Authority received in the late afternoon of December 1st. Many of these questions are different in kind from those of the parents and Guardian. Many focus on methodology but in such a simplistic way as to verge on the pointless and aggressive. Others are superficial, over evaluative and/or simplistic… 49. In considering the Local Authority’s questions, I am disappointed by the poor quality, imprecision, lack of focus on content and at times offensiveness which characterises them. I hope this does not reflect what this family has experienced.’[123]Those are strong words. In my experience such comments are rarely to be found in an expert’s report. I asked Dr Richer whether he stood by those views. Unhesitatingly, he said that he did.

Is K beyond parental control?

[124]Dr Richer had some difficulties with the expression ‘beyond parental control’. As he put it, it is not a ‘blanket’ term; ‘it is a matter of how much and when’. There were times when K conformed to the family’s routine and other times when she became distressed. That distress manifested itself in behaviour such as destruction of property, running away and taking things that weren’t hers.[125]Dr Richer acknowledged that some people will perceive a finding that a child is beyond parental control to amount to labelling and therefore likely to have a negative impact on the child. As for K, Dr Richer’s opinion is that if the court makes a finding that K is beyond parental control then, in the short term, it is likely that she will brush it aside as being ‘all their fault’. However, in his answers to written questions he makes the point that, ‘34. The trouble with the legal process surrounding Orders etc. is that they are predicated on events being someone’s fault: either the parents’ failed or K was too bad. This is unhelpful to the therapeutic process. Since the legal process exists, the challenge would be to explain it to K in a way which is helpful to her. I have tried to do that in my report, emphasising, in paragraph 50, the absence of blame. So the impact on K is determined by how well the decisions, whatever they are, are explained to her. It would be an uphill task since it risks leaving her with a sense that it was her fault that she left her home, and so by implication she is no good, or that it is all her parents’ fault, a conclusion which will be equally damaging in the longer term.[126]In Dr Richer’s opinion, K does not behave the way she does because she is beyond parental control. From his perspective as a clinical psychologist, if K is likely to suffer significant harm (and he did not disagree with the proposition that she is) then that is because she is suffering from a Reactive Attachment Disorder and not because she is beyond parental control.

Therapy

[127]K needs therapy. She has needed therapy for a long time. One of the most disturbing features of this case is the ongoing lack of appropriate therapeutic support.[128]I noted earlier that it was not until K was aged 11 that life story work began. It was long overdue. K was aged 5 at the date of the freeing order, 6 at the date she was placed for adoption and 7 at the date of the making of the final adoption order. Life story work could have been undertaken during those years. Though not in force at the time K was placed, it is interesting to note that Schedule 5 to the Adoption Agencies Regulations 2005 requires that an Adoption Placement Plan should state (paragraph 8) ‘The dates on which the child’s life story book and later life letter are to be passed by the adoption agency to the prospective adopter’. This implies that both documents should exist prior to an adoption order being made. This does not represent a change in practice, it merely formalises by regulation that which was previously considered to be best practice.[129]In both his written and his oral evidence, and during the professionals’ meeting on 8th December 2011, Dr Richer discussed the need for therapy. He was clear that there should be no delay. He suggested that some media-based therapy be considered. He also thought that K ‘has the intelligence to engage in some form of psychotherapy to explore her feelings’. In his second report he suggested that, ‘A therapist with counselling training, used to mediation, or ideally family therapy, would be suitable as support to K and as someone who could use this dialogue as a way of helping K herself understand better what had gone on.’[130]At the professionals’ meeting on 8th December 2011 the parents suggested a referral to Family Futures. Dr Richer has experience of this organisation and supported a referral. It was clear to everyone at the meeting that the parents had already had an initial telephone conversation with Family Futures. There was some discussion about what a referral to Family Futures might cost. According to the minutes of the professionals’ meeting Dr Richer made the point that, for K, there would be a cost if therapy were not provided. By the end of that meeting it appeared that there would be a referral to Family Futures. That referral has not happened. The local authority says this is not because of cost but because K has refused. It appears that the reason for her refusal is that she has been told that her parents have had a telephone conversation with Family Futures.[131]The local authority has identified Pamela Woodford, a Consultant Human Givens Psychotherapist, to work with K. No date has been fixed for this work to begin. Dr Richer agreed that Human Givens Psychotherapy is appropriate for K. K has said that she does not want to engage in therapy until after her exams. She has also said that she will not work with the therapist if her parents are involved with the therapy in any way.

The Children’s Guardian’s evidence

[132]K’s Children’s Guardian (‘the guardian’) is Wendy Nugent. Mrs Nugent is a very experienced and well-respected Children’s Guardian. She has prepared two reports. The first was prepared in March 2012 and appears to have been written in support of the application for a secrecy order. The thrust of this report is set out in the following passages:
‘14. …K has expressed very forcibly that she does not want any information about herself or her life to be shared with her parents. Her experience is that they will use this to try and control her life and prevent her from doing activities and things she enjoys…K is adamant she wants the right to have a life independent of her parents now she is no longer part of the family and therefore wants a Care Order on any basis to secure this. 15. In relation to the disclosure of information about the assault on her at Christmas to her parents, K is absolutely clear that she does not want them to know…[She] has talked on a number of occasions about running away so that no one can find her. It is felt by staff at Greendale…that this is a very real risk…’
[133]In the guardian’s opinion a care order is the best outcome for K. In her oral evidence, more than once the guardian made the point that ‘we have a very small window’. K is now aged 15. In less than three years time she will move into adulthood. She needs therapy now and she needs to undertake it in optimal circumstances – whilst in the safe surroundings of Greendale, untroubled by concern that she may have to move or that her parents may interfere.[134]The guardian was also critical of the local authority. There had been no pre-proceedings assessment of K’s needs, and in particular of her need for therapy. At the professionals’ meeting on 8th December 2011 Dr Richer had said that K needed therapy urgently yet it still has not happened. The guardian had left that meeting believing that agreement had been reached that therapy would be provided by Family Futures.

K’s position

[135]K has written letters to the court. In them, she states very clearly that she wishes the court to make a care order. In one recent letter she says, ‘I do not want to see or have any sort of contact with this family. They are not my family and MG and FG are not my parents and never will be in my eyes. The way that I feel I have been treated by their family will affect me for the rest of my life! Where I am now, I am able to be the person I was born to be not the person they wanted or tried to make me be. I would like everybody in the court today to know that I will not be made to return to this family. I do not want to live…with them or have anything to do with them. I do not want them to know anything about me or be given any responsibility for me.’[136]With the agreement of all parties I met with K on 13th June. Throughout my meeting with her K referred to her parents as ‘MG and FG’. She had nothing positive to say about them. She wants nothing to do with them. As in her letters to the court, K was very clear that she wanted me to make a final care order.[137]This hearing began on 13th June. For reasons which I explain later, on 14th June the hearing was adjourned to 9th July. I am told that K reacted badly to news of the adjournment. She wrote another letter to the court. In it, she says ‘On numerous occasions MG and FG have made it extremely clear they do not want me going back to live with them and Rachel and Chloe used to say to me when I was living with them…you’re not our real sister, we hate you, we don’t want you in our lives and all of them said at one point “I wish we never adopted you”. I have also made it clear I don’t want to go back and live with them so why do MG and FG still have Parental Rights for me as they have said they do not want me back. If their wish is they don’t want me living with them then why should they have responsibility for me. MG has signed me ex mum and has said chucked all my belongings out so it is clear they do not want anything to do with me. If this is the case then why are they still asking what I am doing and fighting for me not to have this care order. MG and FG do not want this to reflect on them and make them look bad. They are only curious about me because they know I am doing so well and from the first day I came to Greendale, the only thing they kept saying was, you won’t be able to cope with her, you will see the bad side of her and they said I will not do well in school. Everything is back firing on them and they having got to fight against because I am achieving in everything. I don’t know whether I am coming or going…Please listen to what I have said and give me freedom and chance to start a fresh without MG and FG in my life.’ K also wrote another strongly worded letter to her parents.

Compliance with best practice

[138]I noted earlier that an Initial Child Protection Conference was held on 5th January 2012. Under the heading ‘Involving the child and family members’, the guidance on Initial Child Protection Conferences set out in Working together to safeguard children (March 2010) states that ‘5.82 Before a conference is held, the purpose of a conference, who will attend and the way in which it will operate, should always be explained to a child of sufficient age and understanding, and to the parents, and involved family members… 5.87 The involvement of family members should be planned carefully… 5.93 Where appropriate, the parents and subject child should be provided with a copy of the report in advance of the conference. The contents of the report should be explained and discussed with the child and relevant family members in advance of the conference itself… 5.95 The child and family members should be helped in advance to think about what they want to convey to the conference and how best to get their points across on the day. Some may find it helpful to provide their own written report, which they may be assisted to prepare by their adviser/advocate.’[139]In this case the local authority has been continuously involved in the life of this family since December 2007. The decision to convene an Initial Child Protection Conference took the nature of the local authority’s involvement onto a different level. It was important that that was communicated to the parents clearly. That did not happen. I am satisfied that there was no explanation to the parents that the meeting on 5th January 2011 was to be an Initial Child Protection Conference. I am satisfied that the requirements of Working together to safeguard children were not complied with. Given the toxic views expressed by those who attended the professionals’ meeting on 8th December 2010, the failure to ensure that the parents understood the status and remit of the meeting on 5th January is a matter for concern.[140]The decision to hold an Initial Child Protection Conference does not trigger an entitlement to legal aid for the parents of the child concerned. That entitlement only arises when the case enters the pre-proceedings stage. An explanation of what is meant by the ‘pre-proceedings stage’ is provided in Preparing for Care and Supervision Proceedings: A best practice guide for use by all professionals involved with children and families pre-proceedings and in preparation for applications made under section 31 of the Children Act 1989. The guidance says that the term ‘pre-proceedings’ ‘2.1 …denotes the stages from the point that the LA is considering making an application to court to protect the child…The point at which pre-proceedings stages nominally commence…is where the legal gateway/planning meeting (section 2.3) has been held and the LA makes the decision to send a Letter before Proceedings (LbP) (section 2.4).’[141]There is no evidence before me to indicate when, or even whether, a legal gateway/planning meeting took place. What is clear is that it was more than five months after the Initial Child Protection Conference before the local authority issued these proceedings. The local authority clearly did not regard this as an urgent case. There was more than sufficient time for the local authority to have sent a letter before proceedings and convene a pre-proceedings meeting. It did not do so.

The law

[142]Section 31(2) Children Act 1989 provides that: (2) A court may only make a care order or supervision order if it is satisfied –(a) that the child concerned is suffering, or is likely to suffer, significant harm; and(b) that the harm, or likelihood of harm, is attributable to – (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.[143]The burden of satisfying the court that that threshold is met, and the burden of proving any factual matters that are in dispute, rests upon the local authority. The standard of proof is the simple balance of probability standard. ‘is likely to suffer significant harm’[144]The parties are agreed that in this case the relevant date for determining whether the s.31(2) threshold is satisfied is 12th December 2010, the date when K was first accommodated by the local authority at Greendale.[145]As I have already noted, in its final threshold document the local authority no longer seeks a finding that K ‘is suffering’ but only that she ‘is likely to suffer’ significant harm. In Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 Lord Nicholls made two particular points concerning the interpretation of the expression ‘is likely to suffer’. First, he said (p.95) that in his view ‘the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’. Second, he said that a finding that a child ‘is likely to suffer significant harm’ is a finding that must be founded on facts proved to the requisite standard of proof.[146]The parents do not challenge the assertion that on 12th December 2010 it could properly be said that K ‘is likely to suffer significant harm’. ‘attributable to’[147]Although Dr Richer accepted that there is a likelihood of K suffering significant harm it is his view that that is attributable to the fact that she is suffering from reactive attachment disorder. That raises an issue as to the meaning of ‘attributable’ in this context.[148]The clearest statement concerning what the ‘attributable’ condition is to be found in Lancashire County Council v B [2000] 1 FLR 583. Lord Nicholls said that, ‘5. …the phrase “attributable to” in section 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child’s being beyond parental control on the other…the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices.’[149]In my judgment it is clear from that explanation that even if a child is likely to suffer significant harm as a direct result of a disorder which affects that child’s behaviour, if the consequent behaviour is such that a parent is unable to control the child then the child’s being beyond parental control is, at the very least, a contributory cause of the likelihood of future harm. ‘the child’s being beyond parental control’[150]That leads on to consideration of the expression ‘the child’s being beyond parental control’. There is little authority on the meaning of this expression. It is an expression that appeared in earlier child protection legislation. Section 1(2)(d) of the Children and Young Persons Act 1969 provided that proof that a child ‘is beyond the control of his parent or guardian’ was sufficient of itself to empower the court to make a care order. The Children Act 1989 makes two important changes to that wording. First, the expression ‘he is beyond parental control’ is replaced by ‘the child’s being beyond parental control’. Second, proof of ‘the child’s being beyond parental control’ is not of itself sufficient to empower the court to make a care order. The court must be satisfied that the child ‘is suffering or is likely to suffer significant harm…attributable…to the child’s being beyond parental control’.[151]The first reported authority is M v Birmingham City Council [1994] 2 FLR 141. Stuart-White J there said. ‘…Subsection (2)(a) contains a verb, in what is unquestionably the present tense…whereas subs (2)(b)(ii) contains no verb in the present or any other tense.

(b) as follows:

“…that the harm, or likelihood of harm, is attributable to – (ii) the child’s being beyond parental control.”
The expression contained in subs (2)(b)(ii) is, it seems to me, plainly a substantival expression capable of describing a state of affairs in the past, in the present or in the future according to the context in which it falls to be applied. No doubt this is why the concept of likelihood finds no place at this point in the subsection. Two other matters in relation to subs (2)(b)(ii) have been canvassed in argument. In relation to those I am prepared to assume for the purpose of this appeal, without deciding the point. That ‘parental control’ refers to the parent of the child in question and not to parents, or reasonable parents, in general…’[152]The only Court of Appeal authority addressing the concept of ‘being beyond parental control’ is L (A Minor) 18March 1997 (unreported). Butler-Sloss LJ says, ‘It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful guidance to the Children Act, Volume 1, under Court Orders, which says at paragraph 3.25:
“…the second limb is that the child is beyond parental control…It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents or the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child.”
That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”. I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically…Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.’[153]The Children Act 1989 Guidance and Regulations, to which Butler-Sloss LJ referred, was updated in 2008. The text and tone of the latest guidance is noticeably different from the earlier version. The guidance now states:
‘3.41 If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’

Welfare

[154]In the event that I am satisfied that the s.31(2) threshold is met in this case then I must go on to consider what order, if any, the court should make. In approaching that issue the starting point is s.1 Children Act 1989. Section 1(1) provides that in determining any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in the best interests of the child’s welfare the court must have regard to each of the factors set out in s.1(3), the ‘welfare’ checklist’ as it is normally referred to.[155]Section 1(2) requires the court to have regard to the general principle that any delay in determining any question about the upbringing of the child is likely to prejudice the welfare of that child.[156]Section 1(5) provides that when the court is considering whether or not to make one or more orders under the Act it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order.[157]The court must also have regard to Art 8 rights – the parents’ and K’s – and seek to achieve an outcome which is both proportionate and in K’s best welfare interests. Discussion The placement

Discussion

[158]The message from research evidence, such as it is, is that the later a child is placed for adoption the greater the risk of the placement disrupting. Dr Richer made the point that K’s adoption was a late adoption. He said that these parents have encountered the same difficulties which have defeated so many families of late adopted children. For these parents, what began with high hopes, borne out of a desire to provide a loving home to a disadvantaged child, has ended in tears.[159]In their statement dated 3rd February 2012, the parents said, ‘2. We are disappointed that relevant information known at the time of adoption about abuse suffered by K’s (sic) at the hands of her birth family, was not properly or fully shared with them until 10th June 2011 when Coventry City Council started proceedings for a Care Order against us. This information would almost certainly have resulted in us not adopting K, particularly as we clearly stated in our adoption application, that we did not want a child that had been sexually abused in any way.’[160]Regulation 12(1) of the Adoption Agencies Regulations 1983 placed a clear obligation on adoption agencies ‘to provide written information about the child, his personal history and background, his health history and current state of health…’ That was reinforced by guidance issued under s.7 Local Authority Social Services Act 1970. On 28th August 1998 the Department of Health published Local Authority Circular LAC(98)20 Adoption – achieving the right balance. The Circular states that, ‘42. It is essential that adoption agencies make available to adoptive parents all material facts about children to be placed in their care. It is unacceptable for adoption agencies to withhold information about a child to the extent that the picture of a child provided to prospective adopters is so lacking in substance as to as to bear little relation to reality. Supplying information to adoptive parents is a legal requirement. It should include details about a child’s background history in care, including number and duration of placements, educational progress and special medical conditions. Such information is a vital tool for prospective adopters if they are to be able to understand and deal effectively with the particular needs of a child. One source of helpful information for this purpose is the material collected by local authorities as part of the “looked after” review of the child.’ That guidance was still current at the time K was placed for adoption.[161]The importance of providing prospective adopters with relevant, accurate and detailed information about a child who is to be placed with them was further underlined by the publication by the Department of Health in 2003 (the year that K was placed) of the Adoption – National Minimum Standards. Standard 5 states that ‘5.1 Approved adopters are given clear written information about the matching, introduction and placement process, as well as any support to facilitate this that they may need… 5.2 Before a match is agreed, adopters are given accurate, up-to-date and full written information to help them understand the needs and background of the child and an opportunity to discuss this and the implications for them and their family.’[162]In this case K’s placement involved two local authorities. K’s social worker was in Bradford. The parents’ social worker was in Coventry. Without seeing the Bradford file the parents’ social worker was unable to come to any view as to the adequacy of the information being disclosed to these prospective adopters. Only when life story work was undertaken in 2008 did two social workers from the Coventry Post Adoption Team travel to Bradford to inspect K’s case files. They discovered that the records described K’s history in much greater detail than that which had been made available to these parents when K was placed with them.[163]In A v Essex County Council [2003] EWCA Civ 1848 at para 54, Hale LJ (as she then was) referred to ‘the present policy…of encouraging the adoption of as many children being looked after by local authorities as possible; this policy aims to make good, so far as can be made good, the deficiencies in their early life experiences which have led to these children being separated from their birth families…[If] the state is to interfere in the child’s right to respect for his family life, it has a duty to use its best endeavours to make good what it has taken away.’ It is vitally important that the requirement to share good quality information with prospective adopters is not overlooked in the pursuit of those objectives.

Threshold

[164]These proceedings began just over a year ago. During that time the parents have attended every hearing. It has at all times been plain that they resist the making of a care order. It was with some surprise, therefore, that on the first day of this final hearing, after allowing time for discussions, I was informed that they were willing to concede both threshold and the making of a final care order. In light of my knowledge of this case I was concerned about the appropriateness of making an agreed order without hearing some evidence. I heard Dr Richer. That reinforced my view that it was not appropriate simply to nod through a final care order. I continued with the hearing as a contested hearing.[165]I am in no doubt that that was the right decision. Hearing the evidence in this case has been highly informative. It has illuminated issues that raise significant concerns about the local authority’s future management of this case.[166]The parents concede that at the relevant date K was likely to suffer significant harm. On the evidence, they were right to make that concession. It is equally plain from the evidence that K is beyond parental control. The question of substance has been whether the likelihood of harm is attributable to K being beyond parental control or to the reactive attachment disorder from which she suffers.[167]It is plain from the guidance given by Lord Nicholls in Lancashire County Council v B that the likelihood of harm may be attributable to more than one cause. A contributory causal connection suffices. In this case it could, of course, be said that the fact that K is beyond parental control is itself attributable to the fact that she is suffering from reactive attachment disorder. That may be so. However, that argument cannot be allowed to subvert the primary purpose of s.31(2) which is one of child protection.[168]This final hearing has been dominated by the issue of culpability. Notwithstanding its belated decision to seek to satisfy the court that threshold is proved on the basis of s.31(2)(b)(ii) rather than s.31(2)(b)(i) the local authority has continued to put before the court a case which, at its heart, is one based upon culpability.[169]I noted earlier Dr Richer’s criticisms of the local authority for the tone and content of the written questions put to him in response to his report. On behalf of the local authority Miss McGrath sought to reassure me that the local authority’s questions to Dr Richer do not reflect the attitude of Children’s Social Care towards these parents. In light of my review of the history of this case since K’s arrival at Greendale, I am not reassured.[170]If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions. Referring to the events that have taken placed in the period since K has been at Greendale, Miss McGrath submitted that the parents had utterly failed to understand the impact of their behaviour on K. She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’. She described the mother’s evidence as ‘chilling for its lack of sensitivity and understanding’. She urged me not to reinforce the parents’ views that the problems are all other people’s fault and not theirs. She submitted that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put K’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that K is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that K is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder?[171]The parents have had to contend with some profoundly difficult problems which they had not anticipated when they agreed to K being placed with them. Coping with those problems has at times (and particularly over the last two years) been rendered more challenging as a result of their difficult relationship with the local authority. I have had the opportunity to observe the parents in court several times over the last twelve months. They have attended every court hearing. During the course of this final hearing they gave evidence over the course of more than three hours. I have formed a favourable impression of them. In their evidence I found them to be open and straight-forward.[172]Sympathy for the parents’ predicament must not blind the court to the undoubted fact that they have not always responded as appropriately as they might have done to the problems that have arisen in parenting K. They accept that. Having successfully parented Chloe and Rachel they have struggled to adapt their parenting style to address the challenges that K has presented. They have struggled to accept and follow advice. They have behaved inappropriately in some of the things they have said, done and written. Some of the things they have said, done and written have undoubtedly caused K distress. Miss McGrath challenged the mother that some of her responses to K had been motivated by spite. Looked at in isolation, I accept that that is how it may appear. But the parents’ responses to K should not be looked at in isolation. They have to be looked at in the context of the fact that K suffers from reactive attachment disorder of childhood.[173]Although these parents are not above criticism, their parenting, insensitive and inappropriate as it has sometimes been, has not been the cause of K’s reactive attachment disorder. The cause of her attachment disorder was the appalling parenting she received in her first four years of life. The fact that K is beyond parental control is a manifestation of the attachment disorder. I am not persuaded that the shortcomings in the parenting provided by K’s adoptive parents has either caused or exacerbated the problem. Dr Richer was clear that in his professional opinion these parents are not responsible for K’s difficulties. As I noted earlier, he said that parents faced with the kind of difficulties these parents were faced with ‘31. …get caught in a vicious circle where their normal behaviour, which works with most children, often only serves further to alienate a child like K. To call these not uncommon parental reactions emotionally abusive is not only inappropriate and wrong, but cruel…’ I accept Dr Richer’s evidence.[174]Though I do not accept the local authority’s position on parental culpability, I am satisfied that the facts set out in the threshold document justify a finding that K is beyond parental control. They also justify a finding that K was likely to suffer significant harm and that that likelihood was attributable to her being beyond parental control. I am satisfied that the threshold is met.

Welfare

[175]In considering welfare issues it is appropriate to begin by undertaking a welfare checklist analysis.[176]Section 1(3)(a) requires the court to have regard to K’s ascertainable wishes and feelings, considered in the light of her age and understanding.[177]K has made it very clear to her guardian, to PC, to her social worker and directly to me when I met with her, that she wishes there to be a care order. There are two reasons for approaching that statement with caution.[178]Firstly, it is not entirely clear that K does in fact understand what a care order is. She is looking for finality. She says she is unhappy that her adoptive parents still have parental responsibility for her. PC accepted that K’s recent letters suggest that she may believe that a care order represents a legal parting of the ways between herself and her parents – a means of becoming ‘unadopted’. If a care order is made there is a risk that her developing understanding of the fact that her parents do still have parental responsibility for her may trigger an adverse reaction.[179]Secondly, I am doubtful not only about whether K does in fact understand what a care order is but about her capacity to understand what a care order is. K is fifteen years old. In terms of her academic abilities she is doing well. She hopes to be able to go to university. Although this suggests that her level of understanding is likely to be such that her wishes should be taken at face value, the records make it clear that, emotionally, K functions at a level well below her chronological age. Fourteen months after her placement, following a review held in November 2003, a minute records that K ‘is emotionally immature and often acts more like a 3 year old’. K was then almost 7 years old. At a review held on 31st March 2009, nine months into life story work, there is a note that the two Post Adoption Team workers, Julia Davis and Jane Francis ‘made it clear that they shared the parents’ concerns about K’s vulnerability being unaccompanied on the street and the child protection implications. Although K is 12, she thinks like a toddler and because her early brain development was negatively impacted on by her early traumatic experiences, she does not make the connection between running away and being at risk.’ In a note dated 7th December 2009, Nina Aldous records, ‘T/call to Jackie (sic) Mitchell. She informed me she has spoken to the parents many times about how to deal with K. She has told them that K can not process their commands and that she functions as a five year old…’ K was then just six weeks away from her thirteenth birthday.[180]Section 1(3)(b) requires the court to have regard to K’s physical, emotional and educational needs.[181]To achieve at school K needs to be able to function at school – to comply with school discipline, to behave appropriately towards staff and peers and to engage with the educational opportunities available. Physically, K needs to keep safe and avoid risky situations and risky people. She has a history of running away from home (including from Greendale) and of putting herself in a position of risk. K needs to be able to understand that actions (and in particular her own actions) have consequences. The alleged rape is a prime example of the risks that can flow from K’s own actions. K suffers from reactive attachment disorder of childhood. She needs therapy. Each of these needs is interlinked.[182]Section 1(3)(c) requires the court to have regard to the likely effect on K of any change in her circumstances.[183]No changes are proposed. The parents accept that K should remain living at Greendale and that she should remain at her present school. They accept that unless some serious adverse event occurs they should only have updates on K’s progress twice a year in advance of LAC reviews.[184]Section 1(3)(d) requires the court to have regard to K’s age, sex, background and any characteristics of hers which the court considers relevant.[185]K suffers from reactive attachment disorder caused by neglect and abuse in her early years. That is the background against which her behaviour and functioning are to be understood and future plans made.[186]One of K’s characteristics is that she is controlling. Jane Francis noted that K ‘is very controlling…Julia and I have observed how controlling K can be…’ PC, manager at Greendale, noted that K is very quick to lose her temper and that she uses her behaviour to control situations in order to achieve her desired outcome. She said that K ‘is beyond parental control when she wants to be’.[187]Section 1(3)(e) requires the court to consider any harm K has suffered or is at risk of suffering.[188]K was the victim of a sexual assault on 24th December 2011. That is the most serious (though not the only) harm she has suffered. That incident occurred because K put herself in a vulnerable position. K finds it difficult to understand that actions have consequences. The likelihood of K continuing to act in a way that puts her at risk of harm is very high.[189]Section 1(3)(f) requires the court to consider how capable each of K’s parents, and any other person in relation to whom the court consider the question to be relevant, is of meeting her needs.[190]The parents accept that if K returned to their care they would not be able to cope with her challenging behaviour. As Dr Richer put it, most parents in their position would be unable to meet the needs of such a child. There are times when K continues to be beyond parental control.[191]Section 1(3)(g) requires the court to have regard to the range of powers available to the court under the Children Act in the proceedings in question.[192]The only relevant order available to the court under the Children Act is a care order. However, as I noted earlier, in seeking to arrive at an outcome that is proportionate the court must adopt the least interventionist approach required by s.1(5). In this case that raises the alternative approach, the one proposed by the parents, that K should continue to be accommodated by the local authority under s.20.[193]Another option considered is to make K a ward of court. S.100(3) prevents the local authority from making K a ward of court without the leave of the court. The parents do not need the leave of the court to issue wardship proceedings. However, if they were to issue wardship proceedings they would face the not inconsiderable obstacle of s.100(2) which provides that, (2) No court shall exercise the High Court’s inherent jurisdiction with respect to children –(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;(b) so as to require a child to be accommodated by or on behalf of a local authority…[194]Wardship was the route used by Hedley J in K (Children) [2012] EWHC (reported on Family Law Week, 12th April 2012). As Hedley J himself acknowledged, this was an exceptional case. It involved a family of five children three of whom suffered from severe and complex disabilities. The facts of that case bear no comparison with the facts of this case though the primary reason for using the court’s inherent jurisdiction in that case was a reason which resonates with the concerns I have in this case. Hedley J said that it seemed to him, ‘26. …that what was needed here was not necessarily orders under Part IV of the Children Act 1989 but a legal framework which kept all parties on equal terms and did not undermine the morale of the parents, as I am sure a care order would have done, but nevertheless made both parents and the Local Authority accountable to the court for the maintenance of a proper working relationship. Again, a unique solution for a unique case.’[195]The range of services being provided for those three children included specialist placements the cost of which was borne by the local authority. It is not clear from the judgment how the court approached what I have described as the obstacle of s.100(2)(b).[196]In Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192 the Court of Appeal approved the use of wardship for a 17 year old girl, T, who was assessed as functioning within the 5 - 8 year age range. The judgment makes it clear that T was being accommodated at a specialist children’s home. The judgment of the Court of Appeal does not make specific reference to s.100(2)(b) and it is unclear, therefore, how that obstacle was overcome.

Conclusions

[197]Accepting a child for adoption, particularly a late adoption, inevitably involves taking a risk. The parents have said that had they known in 2003 what they know now they would not have proceeded with the adoption. But they did not know. And they did adopt K. There is no going back. Adoption is final, both for the child and for her adopters. It is to the immense credit of these parents that despite the challenges K has presented, and despite the difficulties they have had to contend with in engaging with the local authority, they still care about her, they still love her and they still want what is best for her.[198]In assessing the local authority’s care plan two particular issues give me cause for concern. Firstly, the local authority’s case for a care order is in large measure reliant upon the conviction of professionals that that is what K wants. Yet it is not clear that any professional involved in her care has stood back and assessed what K is saying against the backdrop of her acknowledged emotional immaturity and her propensity for using her behaviour as a means of controlling those around her.[199]Secondly, the state of the parents’ working relationship with the local authority is very poor. The local authority has been accommodating K since December 2010. In that time K has been sexually assaulted, prompting the local authority to apply for a secrecy order; she has been arrested for a serious assault on a member of staff but the parents were not informed; she has had a contraceptive implant fitted but the parents (Roman Catholics) were not consulted and were only informed after the event; the local authority has signed up to a working agreement which made clear provision for regular updating information to be provided to the parents but its compliance has been erratic and unreliable; at a meeting on 8th December 2011 the local authority appeared to agree to pay for Family Futures to provide therapy for K and yet, to date, no therapy has taken place and no clear arrangements for therapy are in place; at that same meeting the local authority agreed to prepare an updated working agreement but that, too, has not happened.[200]The father asks, plaintively: if this is the way the local authority treat us when we alone have parental responsibility, how will they treat us if they share parental responsibility with us under a care order? That is a serious question. I regret to say that on the evidence before me I am in no doubt that there is a likelihood, a real possibility, that if I make a care order the parents will be marginalised and largely ignored.[201]Dr Richer did not see the making of a care order as the solution to K’s problems. He is concerned that if a care order is made the parents may just decide to walk away from K and effectively say ‘good-bye’. He is also concerned that in the longer term that could have a negative impact on K. The local authority’s attitude to these parents significantly increases the risk of them walking away.[202]I noted earlier that the most recent edition of The Children Act 1989 Guidance and Regulations states that if a child is determined by the court as being beyond parental control, ‘3.41 …it is immaterial who, if anyone, is to blame. In such cases, the local authority will need to demonstrate how the child’s situation will improve if the court makes an order – how his behaviour can be brought under control, and why an order is necessary to achieve this.’ I am not satisfied that in this case the local authority has convincingly demonstrated how K’s situation will improve if I make a care order.[203]When taken together these points provide a powerful argument against making a care order.[204]There are also reasons against making no order and relying upon the local authority to accommodate K under s.20 – the outcome contended for by the parents. For accommodation under s.20 to work in K’s best interests there needs to be at least a basic level of communication and working together between these parents and this local authority. In light of all that has happened over the last two years I regret to say that I find it difficult to imagine that that level of working together could be achieved in this case. Without that level of cooperation I am in no doubt that it would be unhelpful and potentially damaging for K to find herself in caught in the middle of a legal no-man’s land.[205]Against that background, and for the same reasons that Hedley J gave in Re K (Children), I believe that in this case wardship has more to offer than a care order. It would make both the local authority and the parents accountable to the court. It would enable the court to oblige the local authority to keep the court and the parents informed about its progress in arranging therapy and about the progress of therapy once begun. It would enable the court to ensure that the parents receive the information proposed under the care plan. Were it necessary to do so, it would enable the court to regulate the parents contact with K, with Greendale and with K’s school. Were it not for s.100(2)(b) I would have no hesitation in making K a ward of court.[206]However, with regret, and notwithstanding the examples of Re K and Re F, I am not persuaded that I have the jurisdiction to use wardship in the circumstances of this case. I have already ruled out the option of making no order. I am left, therefore, with no alternative but to make a final care order. I do not consider that to be the best outcome for K but I am satisfied that it is a better outcome than making no order.[207]In light of the concerns I have expressed I direct that a copy of this judgment be made available to the Independent Reviewing Officer immediately. It is his responsibility to hold the local authority to account for complying with its care plan. I shall also direct that a copy of this judgment be made available to the Director of Children’s Services.[208]I noted earlier Miss McGrath’s submission that the parents are concerned about their reputation in the community and the impact that a care order may have upon the way they earn their living. The mother is a teacher. That submission is a reference to an indication given during the course of this hearing that the making of a care order could trigger disciplinary proceedings against the mother. I give the mother permission to disclose a copy of this judgment to any person or body charged with responsibility to consider whether to initiate any disciplinary process against her and to any body charged with responsibility for determining any disciplinary process which may be issued.[209]Finally, I want to acknowledge that the issues outlined at length in this judgment not only affect K and her parents but Chloe and Rachel too. Though now young adults, over the course of the last nine years they have experienced at first hand the events narrated in this judgment. Those events have touched upon their lives in a very real way. I am told that they have come to court with their parents on several occasions throughout the course of these proceedings. They are understandably concerned about the outcome. It is right that they should know not only the outcome but also the reasons for the decisions I have come to. I therefore give permission to the parents to disclose this judgment to them.

Cited in 5 later judgments