LA v FM & MA & others (Application to revoke placement order) [2014] EWHC 4793 (Fam)

Case No IL13C00216[2014] EWHC 4793 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Thursday, 26 th June 2014
Before
MRS. JUSTICE THEIS
B E T W E E N:
Between
FMApplicantA Local Authority and othersRespondents
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio TranscribersOne Quality Court, Chancery Lane, London WC2A 1HRTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR. D. MESSENGER (instructed by Terrells L.L.P.) appeared for Applicant.MR. A. VERDAN, Q.C.(instructed by Legal Services Department) appeared for Local Authority.MS P. TROY (Covent Garden Family Law Solicitors) for 3rd & 4th Respondents
J U D G M E N T

Introduction

[1]This ex tempore judgment is given concerning an application by the mother, FM, to discharge care orders and leave to revoke placement orders that were made on 5 November 2013 in regarding her two children, B who was born early in 2012 and A born in early 2013.[2]Her application is supported by the father, who is not present at this hearing. He is currently serving a ten-year prison sentence for the manslaughter of an older child of the parties C who died whilst he was in the father’s care in March 2013. There is an email letter from the father’s solicitors confirming that he does not have public funding, did not wish to attend this hearing and supported the mother’s application. The application is opposed by the local authority and the guardian.

Legal Framework

[3]The mother needs leave to make her application to revoke a placement order under s.24 of the Adoption and Children Act 2002. The parties have agreed the relevant legal framework. I have been referred to a number of cases, in particular Warwickshire County Council v M [2007] EWCA Civ 1084 and NS-H v Kingston Upon Hull City Council [2008] EWCA Civ 493.[4]There are two matters the Court has to be satisfied about: firstly, that there has been a change in circumstances. This change does not have to be significant, but must be of a nature and degree sufficient to reopen consideration of the case and of the placement order. Secondly, if there has been a change, the Court then has a discretion to decide whether leave should be given, and in exercising that discretion the children’s welfare is relevant but not paramount, and the question for the Court is whether, in all the circumstances, including the mother’s prospects of success in securing revocation of the placement order and the children’s interests, leave should be given.[5]I am acutely aware that the nature of a placement order is to provide for orders that permanently separate children from their birth family, and that such orders are only made after careful analysis of the competing considerations, in particular the final nature of such an order.[6]The mother has had the benefit of extremely effective legal representation. Mr. Messenger’s position statements, both for the last hearing and this one have very helpfully set out the legal position together with the factual analysis.[7]I have statements from the mother, FM; the social worker who is allocated to the children now; Ms G, who was the previous allocated social worker; and the social worker who is dealing with the assessment of the prospective adopters of the children. I have also heard oral evidence from the mother, Ms G and the children’s guardian, Mr. Y.

Background

[8]I have had a long involvement with this case. I heard the fact-finding hearing for two weeks in September 2013 (judgment reported at [2013] EWHC 4671 (Fam)) and the welfare hearing in October, with the judgment being given in November (judgment reported at [2013] EWHC 4672 (Fam)). At the conclusion of the September hearing I made the findings sought by the local authority, last made further interim care orders, against the professional evidence in the case from the social worker and the guardian to enable the mother to have an opportunity to consider the findings I had made.[9]The background can be summarised very briefly. B and A were removed from the care of their parents following the tragic death of their older brother C on 11 March 2013. He had been in the sole care of his father at the relevant time.[10]I found at the September hearing that the father was responsible for C’s death. I also made findings in relation to other matters, including, in particular, the domestic violence allegations that had been made, which the mother refused to accept, but I concluded on the evidence were established.[11]Following a criminal trial in early 2014 the father was convicted of manslaughter and is currently serving a ten year sentence.[12]One of the matters in the September judgment that persuaded me to delay making final orders was the powerful evidence of the strength of the relationship and attachment between this mother and her two young children, as described in paragraphs 8 and 9 of the September judgment. It was described in glowing terms by all the professionals who had observed the contact, but what was so puzzling about this mother was she was someone who on the one hand has such strength of feeling and empathy for her children with strong maternal instincts, yet she seems completely unable to acknowledge the history of what had happened and the future risks to her and the children.[13]Following the September hearing further work was done with the mother, in particular to assess her acceptance or not of the findings I had made. That work was undertaken by Ms G, the experienced social worker who had been allocated the case since March 2013, and Mr. Y, the children’s guardian. It became clear during the work that was undertaken that when pressed about certain matters there had not been a full acceptance by the mother of the Court’s findings in September; she minimised them, in particular the father’s violence to her. I reached the same conclusion in October after hearing the mother give oral evidence. At the hearing in October neither the local authority nor the guardian supported any further assessment of the mother.[14]In the November judgment I noted at paragraph 31 what Mr. Y said in his oral evidence, that the mother was divorced from the risks, she can see it at one level but he continued “my worry is her not being able to see that it applies to her,” and this referred to domestic violence. He said the mother is not yet in a position to fully protect her children; the level of protection these children require is not yet within the mother’s reach. She needed to fully acknowledge and accept and take consistent action. He believed the mother had developed a degree of emotional detachment as a way of coping, which is why, if the Court was minded to allow any further assessment, which he did not support, he said it should be done by a forensic psychologist, because Dr. R’s report is clear that the mother does not suffer from any mental illness.[15]In the judgment I gave in November I concluded that the mother was not able to protect the children from future harm due to her minimising the findings made by the Court, and the level of future risk of harm to the children. As is clear from that judgment it was a decision reached with great sadness because of the powerful evidence of the strength of the relationship between this mother and her young children. At the hearing in November I made a final care order and a placement order, and endorsed the plan that was put forward by the local authority for the children to be adopted. Following that hearing contact between the mother and the children was reduced in accordance with the plan I approved. It was reduced to twice a week for six weeks and then once a week for the following three weeks, fortnightly from December till the end of January. Then one contact in February and since March there has been monthly contact.[16]The position of the children is set out in the statement from Mr P, the social worker who has been allocated since May 2014. He reports that they are progressing well. He describes the children as being well settled in their current placement, with a good routine. He notes that the foster carer reports no difficulties following the mother’s contact, and he noted the contact records show that the contact between the mother and the children is reported to be very positive. In his statement he notes that since the conclusion of the care proceedings FM has made changes to her life which suggest that she has contemplated the need for her children to live in an environment which is free from domestic violence and that she has moved to a place of safety. At paragraph 31 he says:
“However, B and A are making significant progress in the care of foster carers and deserve continued support to develop to their full potential. Effectively, they deserve permanence now and it is therefore the position of the local authority that they should remain subject to the full orders.”
[17]The current foster carers notified the local authority that they wished to be considered as prospective adopters for the children. They notified the local authority on 30 January, and the case was allocated to Ms J on 11 February, and two statements have been filed by her. The essence of her evidence is that the assessment of the current carers has progressed well. She has met with them on five occasions and plans more visits next week. If the assessment, as is expected, continues to be positive, the plan is to present the couple for approval as adopters and match them with the children at the local authority’s Adoption and Permanency Panel on 24 July, so in less than four weeks’ time. The papers have to be with the Panel by 10 July.[18]She sets out the prospective adopters’ views regarding the current application in her second statement. They hold the view that, where possible, children should be placed with their family; but were confused by the mother’s application, as they thought the local authority had already spent time assessing the mother’s capacity to parent the children. They added that they are 100 per cent committed to adopting the boys and will wait if the judge decides to grant the mother’s application for leave. But for this application, the arrangements for the future care of the children were wholly in accordance with the care plan endorsed by the Court last November after having carefully balanced all the relevant placement options.[19]The mother’s application for leave to revoke the placement order and discharge the care order is dated 20 March. Directions were made by His Honour Judge Altman on 22 April. Not all of them were complied with, in particular relating to disclosure from the police, but nobody has sought the matter be adjourned to await that information. The court has the benefit of having seen the CRIS reports, which summarise the action that was taken by the mother.[20]The mother’s statement is dated 9 May, and in it she describes the two violent incidents that were caused by the father to her which I found had occurred in the September judgment at paragraphs 69-74. At paragraph 7 of her statement she says:
“I now fully accept that the second respondent’s behaviour towards me was a sign that he was not safe to be around the children but at that time I did not understand or appreciate that and, as he did not directly harm the children, I had no belief at that time that he would be capable of what he did to C. I was so frightened by the second respondent and felt so trapped that I stayed in a relationship with him but I now know that was an awful mistake.”
[21]In her statement she says that after the father was arrested following C’s death she went to move to stay with his cousin, K, and a number of relatives from the father’s family. The mother alleges in her statement that they were entirely controlling of her, she was under the constant threat from them that she should not say anything to the police that would cause any difficulties for the father. They threatened her if she harmed the father in any way. She said she always knew she wanted to get out of that environment, but was unable to because she was frightened. It is right to record that is a very different account from the account she gave Mr. Y, who visited the mother at Ms M’s house on Friday 20 September 2013. There is a detailed note by him of that visit in the papers. Effectively, he was told that these were friends of the mother’s, that they were entirely supportive of her, and Mr. Y’s oral evidence to the Court at this hearing is that he was entirely satisfied at that time, even though he was aware of the concerns that there were about the controlling nature of the father and the father’s family, that this was an entirely supportive arrangement that supported the mother. Despite his considerable experience as a social worker and as a guardian, he detected no sign of this mother being in fear or being under threat from either Ms M or her daughter.[22]In the mother’s statement in support of this application she paints an entirely different picture. In her statement she says she decided to leave that house on 29 December. She hid a bag on that day, fled the following day and went to Brixton police station; she was placed in a refuge, where she remains. After her presentation at the police station the mother assisted the police by being involved in an ABE interview and providing a statement detailing the assaults she said the father had inflicted on her. Even though I have not seen that material, I have seen the CRIS reports. In her statement the mother describes her fear of the father and his family. She said she has had some contact with her family, but she has not informed them where she is.[23]It is clear from her statement about her stay in the refuge where she currently resides that she feels much more confident since she has been in that environment, where she has been well and fully supported. A representative from the refuge has been present during this hearing to support the mother. To her very great credit, she has improved her English and she has undertaken what has been described as a shortened Freedom Programme, this was described as being two appointments with the mother where they went through the headlines that would be gone through in the extended Freedom Programme. The point is made that the mother receives daily support at the refuge to help her understand the position she finds herself in and the history of domestic violence. The mother in her statement said she wishes to undertake the full Freedom Programme, which is the 12-week domestic violence intervention programme, but, regrettably, there have been funding difficulties in relation to providing an interpreter.[24]The mother said in her statement that she understands she needs to take steps to understand what had happened to her and the children and ensure that they are safe in the future. She feels, having taken the step of separation from the father’s family, leaving and being in the refuge, she has understood what it is like to live independently and this has greatly assisted her protective ability and confidence. She has exhibited to her statement a letter from the refuge support worker detailing the changes that they have noticed in her. They conclude with the observation that she is now 100 per cent clear on how abusive and controlling her husband was and she now knows this was not how a relationship should be.[25]Ms G was the allocated social worker during the previous proceedings. She is an experienced social worker, and knows this mother and the background to this case extremely well. During the course of her assessments in the previous proceedings she met the mother at least 17 times over the period between March and October 2013. Following receipt of the application she had two interviews with the mother on 7 and 8 May this year, with an interpreter present and also a representative from the refuge.[26]In those interviews she was able to explore with the mother what she was saying about the past, and her understanding of what Ms G considered were the relevant issues. In her analysis at the end of her statement she acknowledges the mother now accepts the father killed C and the mother was able to describe the injuries C suffered.[27]However, Ms G considered the mother had not fully understood the emotional impact on the children of witnessing the father’s behaviour to her and she remained puzzled as to the impetus behind the mother’s decision to leave the home in December. She did consider the mother was more confident and relaxed, and remarked on her congruent behaviour when she described certain instances. However, she remained of the view that the mother is still not giving the full picture. The observation in the mother’s statement that she was not aware of the support services that were available at the end of 2011 is difficult to tie in with Dr. A’s evidence in the September hearing of his chance encounter with the mother on the bus after she had been placed in the refuge, which the mother accepted in this hearing was a true account. His description of the change in her behaviour, her demeanour, her understanding of how it was to be free which related to her being in a refuge.[28]In her statement Ms G concluded the risk from the father’s family is present. She said the mother fears for her life and the level of that risk would require very careful assessment.[29]In the oral evidence the mother repeated much of what is in her written statement. She was understandably very emotional during her evidence. She changed her position in relation to her knowledge of the support services that were available; she accepted she had been told about them and was aware of what was available but said that she was unable to access them because of the fear and threats from the father and the wider family.[30]There can be little doubt from what I was able to observe of the mother that the steps she has taken have given her more confidence and she displayed more understanding about the position she was in, what happened to her in the past, the harm she had suffered as a result of the father’s behaviour, and some understanding of the impact on the children, but it remained a feature of her oral evidence, as it was on previous occasions, that there is a disconnect between what she says in terms of generalities about the impact of domestic violence and not being able to readily make the connection to herself and her children’s experiences. This was remarkably similar to Mr. Y’s conclusion in relation to her position in paragraph 31 of the November judgment.[31]There are also two other features of her oral evidence in this hearing that came across very clearly.[32]The first is the extent of the threat she is under from the father and the wider paternal family. An example was her answer to a question from Mr. Verdan Q.C. on behalf of the local authority, when she said, “I know when he sees me” – that is the father – I will not be alive.” She believes the threat is to her life; she will need lifelong witness protection, and considers she will need to change her name and location in order to protect herself. If she is successful in the Court giving her leave and in her subsequent application, lifelong protection will be needed for the children too if they are returned to her care.[33]The second feature of her evidence was trying to understand what the motivation was and the impetus for her decision to leave on 29 December and actually leaving the following day on the 30th. It remains a mystery. The proceedings concluded in November. The position was very clear from the end of September as to what changes she needed to make. She had the benefit of legal representation between September and November and despite pressing her during her evidence in this hearing, she seemed unable to articulate why she took the step that she did then, waiting until the end of December. The only explanation she could give is that she was confused and that she just decided one day, namely 29 December, to do it.[34]Ms G in her oral evidence said she did not support the mother’s application. Although she had considered in her statement that a further report from Dr. R may assist, she said on further reflection and having heard the mother’s oral evidence she no longer supported that. This was because of her assessment of a number of matters. Firstly, the changes in what the mother said about the knowledge of services from what she said in her statement and the oral evidence, in particular the evidence that Dr. A gave in September about the changes that he saw in the mother’s demeanour and behaviour while she was in the refuge, which the mother accepts now to be truthful evidence from Dr. A. So Ms G says she had experienced freedom and support within the refuge there so was aware of what was available to assist her.[35]The second matter is the issue of trust and honesty, which she considers to be fundamental in being able to move forward and work with the mother, in particular the mother’s ability to be able to protect the children. That was a feature that I accepted in the September judgment.[36]Thirdly, she said the level of risk to the mother and children, bearing in mind the mother’s written and oral evidence about the level of threat she fears to her life, including the need for lifelong protection for her and the children. Her fear about being tracked down by the father and his family, and the practical arrangements to enable that level of protection to be given have not even been embarked upon.[37]Mr. Y listened to both the evidence from the mother and Ms G. He considered that evidence carefully. When he gave evidence he said that he was not able to support the mother’s application. He, like Ms G, has had the benefit of having been involved in these proceedings since the very early stages in March 2013. Whilst he recognised the steps the mother had taken in leaving the property she had been living in before, he said she was at the beginning of that journey and he did not consider it was necessary for the Court to have any further assessment from Dr. R as he did not see that such an assessment was going to add to what was already known. The work that was to be necessary for this mother to undertake would in his view take at least six months, and is more likely to require 12 months. That is not just to deal with the issue of domestic violence, but also other issues, including bereavement.

Discussion

[38]This application is, in my judgment, finely balanced. However, I have had the opportunity to be able to reflect on the position overnight and, as will be clear from the two previous judgments given in this case, I have been anxious to see if this mother can make the necessary changes to be able to care for these two young children.[39]I am satisfied that the first limb of the test is satisfied, namely there has been a change in circumstances of a nature and degree to reopen consideration of the case. That is accepted by the local authority and I think also the guardian. The steps the mother has taken in leaving the home she shared with the father’s relatives, if it is correct that is who they are, go to the police, take part in a video interview, prepare a statement, go to the refuge, embrace the support she has been given there, have clearly been of enormous benefit to her.[40]The more difficult aspect of the case though is the second stage; whether in the light of this change in circumstances leave should be given for her to apply to revoke the placement order. In effect, what is sought by her is the return of both children to her care, which would be a wholesale reversal of the plan endorsed by the Court last year. I remind myself that the children’s welfare is relevant but not paramount and the Court needs to consider whether the mother has a real prospect of success in that application to revoke the placement order.[41]Mr. Messenger places great reliance on paragraph 92 of my September judgment, where I set out the evidence of the professionals as to the four key stages before the Court could even embark on such an assessment: namely, the mother had acknowledged the domestic violence that had taken place in the home, she had acknowledged the father had caused C’s death, she accepted the findings that I had made and that a safety plan was in place. He submits the mother has effectively met those criteria and as a result of that leave should be given. However, in my judgment that is too narrow an analysis when the Court is considering whether to exercise its discretion in this type of application.[42]In considering my discretion there are a number of relevant factors.[43]Firstly, if leave were granted, Dr. R could report relatively quickly, certainly by the end of July, and no doubt a hearing could take place soon thereafter, so it is relied upon that there would be negligible delay.[44]Secondly, the proposed adopters have been asked for their views in relation to this application. They are the current carers and they fairly say where possible children should be placed with their family, although they confess to being confused by this application because they thought the mother had been assessed but said they were 100 per cent committed and will wait if leave is granted.[45]Thirdly, revocation of the placement order would amount to a wholesale reversal of the plans that were endorsed for these children in November of last year, nine months ago. This has to be seen in the context of the age of the children. B has been in the care of the local authority for half of his life and A for, I think, nearly three-quarters of his life. In November I considered their welfare required stability and security and that could only be achieved by the Court making orders that enabled them to be placed in the care of a family other than the birth family.[46]One of the primary reasons for endorsing that plan was the mother’s inability to fully accept the findings that I had made, the risk of future harm and the need for honesty, which was not readily apparent from the mother, to enable her to work with the professionals.[47]If leave is given, the mother would need to persuade the Court that she has the capacity to protect the children. That, on the evidence that is available, is going to require an in-depth assessment, as outlined in my previous judgments. It is likely to take at least four to six months at the very least. I suspect Mr. Y’s assessment is more realistic, that in the light of the evidence about the extent of her fear from the father and his family and the level of risk, it is more likely to take 12 months. In addition, there would need to be evidence about a secure safety plan in terms of placement and new identity and location.[48]Such a position is almost certainly going to mean that there would need to be an adjournment in relation to the next hearing if leave was given to enable these assessments to be able to take place, and so there is likely to be considerable delay.[49]There is a risk that the current carers would change their mind and not proceed with their application if that was in fact the realistic timescale, or at the very least it could jeopardise the stability of that placement.[50]In addition, if leave were granted, it seems to me that there would have to be a forensic process to assess a number of matters. Firstly, the real level of the mother’s acceptance of domestic violence. The mother has said in her statement that there were only two occasions of physical violence, yet that was not what she said to Dr. A, as I set out at paragraph 21 of my judgment in September. The second matter that would need very careful investigation would be the precise circumstances of where the mother was living up until December 2013. Who she was living with, whether the people she lived with were in fact members of the father’s family, as she now says, or whether they were the friends who she persuasively presented to the guardian when he visited in September and who he observed the mother having such a warm and supportive relationship with. Either way, there is a considerable level of deception, either by the mother or by the people she was living with. The third matter that would need to be considered by way of a forensic process that would encapsulate the matters I have just set out is the position regarding the mother’s honesty as was set out at paragraph 98.4 of the September judgment. I accepted the powerful point made by the local authority of the need for those supporting the mother on the ground to have trust in her and confidence in her honesty and reliability. That, it seems to me, on the face of the information we have now, is a matter that would require very careful investigation by the Court.[51]Turning to Dr. R, her report concluded that the mother did not suffer from any mental illness and was not suffering from post traumatic stress disorder. She set out in her report in July, and in her oral evidence to me in September, what further assessments were required. I agree with Mr. Y that a further report from her is not necessary, it would not add to what is already known about the work that is required and the broad timescales involved.[52]I consider that if leave was given, it is very likely that there would be a delay of 6-12 months (at least) for the necessary work to be undertaken, with no guarantee of success, and, faced with that timetable, the application to revoke the placement order is in my judgment very unlikely to be successful, so it has no real prospects of success.[53]I am also satisfied that it would not serve the welfare needs of these young children for the application for leave to revoke the placement order to be granted.[54]Therefore I have reached the conclusion that the mother’s application should be refused. It is an application and a decision that the Court has made despite the changes the mother has made, for which she should be commended. The conclusion is reached with a very heavy heart because I know how much the mother wants her children to be returned to her care, but I consider the prospects of her successfully revoking the placement order to be remote and in those circumstances refuse the application for leave to revoke that order.[55]That leaves the application to discharge the care order. That has to fail too, for the reasons I have outlined. For the avoidance of doubt, I am also refusing the application to discharge the care order.

Cited in 1 later judgment