MF v LA [2015] EWHC 3162 (Fam)

Case No ZC15Z00136[2015] EWHC 3162 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 th May 2015
Before
MRS. JUSTICE THEIS(In Private)
B E T W E E N:
Between
MFApplicantLARespondent
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MISS C. PAPAZIAN(instructed by Wainwright Cummings Solicitors) appeared for Applicant.MR. A. VERDAN Q.C.(instructed by Legal Services Department, LA) appeared for Respondent.MISS P. TROY(instructed by Covent Garden Family Law) appeared for Children’s Guardian.
J U D G M E N T

Introduction

[1]The court is concerned, once again, with an application relating to two young children, A, now three years, and B, now two years.[2]This is an application made by the children’s paternal uncle, Mr F, to revoke placement orders made by this court on 6th November 2013, whereby the court, having undertaken an investigation in relation to the placement options for these two very young children, determined that their welfare interests would be best served by the court making a care order and a placement order. These two young children have been in the care of the local authority, placed with their current foster carers, since March 2013.[3]This application, dated 4th March 2015, was prompted, it is said by Mr. F, as a result of a letter that was sent to an address that the mother occupied when the family were together prior to March 2013. That letter was sent to her, somewhat surprisingly in the circumstances I will outline in a moment, in February 2015. It contained the minutes of some LAC reviews. Although dated January 2015, the actual LAC reviews took place in November 2014. It is knowledge of the information within those documents which indicated that the children were not, as the applicant had understood, in the care of the mother; that prompted this application to revoke the placement order.[4]Mr. F does not actually put himself forward as being a future carer for these two young children. What he says is that the wider paternal family, most of who live in either Germany, Norway, Finland or possibly Somalia, are wider birth family members who are available to be considered to provide future care for these two young children.[5]The position of the respective parties to these proceedings is as follows. The mother, following the directions hearing before me in April of this year, was contacted by the local authority through her former solicitors. She has informed the court, through the local authority, that she does not wish to attend to take part in this application, and she does not support the application. The indication through the local authority is that she has accepted the children will be placed away from her with the foster carers through an adoption order being made. That is slightly different from the position that is recorded in the LAC minutes in November 2014, but, in any event, in relation to this hearing today it is not an application that she wishes to take part in or support in any way.[6]The father is currently serving a substantial prison sentence, imposed in January 2014, for the manslaughter of another child of this family. He has been written to by Mr. F’s solicitor, informed of this application and sent the order that I made in April. He has not responded to those communications. He is, therefore, not here and is not represented.[7]Here today, in addition to the applicant, is the local authority, represented by Mr. Verdan Q.C., and the court has the benefit of the children being represented through Miss Troy. Mr. Y is also here. He is the Children’s Guardian who has been involved in these proceedings since the beginning of the care proceedings in 2013. Neither the local authority or the guardian, support the application. Legal Framework[8]There is no dispute about the legal framework in which the court should consider the application. The application to revoke a placement order is made pursuant to s.24 of the Adoption and Children Act 2002. The relevant legal framework is well established, and cases that I have been referred to are Warwickshire County Council v M and M & L [2007] EWCA Civ 1084 and Re S-H (A child), NS-H & H v Kingston upon Hull City Council [2008] EWCA Civ 493.[9]Essentially, 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 that was made. Secondly, if the court is satisfied that there has been a change, the court then has discretion to decide whether leave should be given and, in exercising that discretion, the children’s welfare is relevant but not paramount. The question for the court is whether, in all the circumstances, including the applicant’s prospects of success in securing revocation of the placement order and the children’s interests, leave should be given. Background[10]The tragic background to this matter has been set out in three previous reported decisions relating to this case: initially, the decision of 27th September 2013 ([2013] EWHC 4671(Fam)), which was the judgment given at the conclusion of the fact finding hearing. Having heard the evidence, I made certain findings of fact, including that the father had unlawfully killed A and B’s sibling, C, in March 2013, that he had been violent and threatening to the mother and was controlling in relation to his behaviour towards her. Even though the expert evidence before the court at that time was that the court should conclude the proceedings then with final orders being made, having seen the mother give evidence and having heard the evidence about the strength of her relationship that had been observed with these two very young children during periods of contact, I determined that the mother should be given a period of time to be able to consider the findings that had been made by the court, to see whether she could make the necessary changes within a time frame for these children to be able to have some prospect of caring for them in the future.[11]The matter came back before me in October 2013, when, again, I heard oral evidence from the witnesses on behalf of the local authority, from the mother and from the guardian. In the judgment, dated 5th November 2013 ([2013] EWHC 4672 (Fam)), I concluded, with great sadness, that as a result of the findings that the court had made the mother was unable to recognise the significant risks of physical and emotional harm that there were for these children and she was unable to provide them with the protection that they required during their minority. As a result of the balancing exercise undertaken by the court at that hearing, I concluded that the court should make care orders and a placement order endorsing the plan put forward by the local authority that the children should be permanently placed away from their birth family.[12]A third judgment was given in June 2014 ([2014] EWHC 4793 (Fam)). That was in the context of the mother’s application that had been made in the early part of 2014 to revoke the placement order I had made the previous November. She said there was a change in circumstances; she had left the accommodation that she was living in, which she said was accommodation that was provided for her by the paternal family; she was receiving support in relation to her welfare within a refuge at an address that was unknown to the family; and she was beginning to show a recognition and an understanding in relation to what had happened to her and the children in the past. As a result of that, it was said on her behalf there had not only been a change of circumstances because of those changes by her in relation to her understanding of the history, but also that the court should exercise its discretion and give leave for her to make an application to revoke the placement order because it was said that she was now in a position to be able to safely care for the children. For the reasons I set out in that judgment, I rejected that application. The mother’s contact with the children was then managed in such a way that she had her farewell contact with the children in August 2014.[13]The very brief background, which is set out in more detail in those judgments, is that A and B’s older brother, C, was unlawfully killed by their father in March 2013 whilst the father was caring for him as the mother was in hospital with one of the younger children. I also found that the local authority had established to the required standard that there had been domestic abuse between the mother and the father and that he had exerted controlling behaviour in relation to her. The father had been charged with murder. A trial took place at the Central Criminal Court in January 2014. The father was convicted of manslaughter and was sentenced to ten years’ imprisonment. The mother separated from the father and the court had carefully considered whether she could protect the children. When I considered the position in November 2013, I concluded she could not. When I looked at the matter again in June 2014, I concluded she had not satisfied the two requirements to enable the court to give leave for there to be an application to revoke the placement orders. The mother had her farewell contact with the children in August 2014.[14]The position of A and B is that they have been placed with their current carers since March 2013. All the evidence suggests that they are extremely settled there. It is, effectively, from their perspective, the only home they have known. At the time the matter was last before the court, in June 2014, the court was informed that the local authority were proposing to present the children to the local authority adoption and permanence panel on 24th July 2014. It is apparent from the information before the court now that did not take place. I am told that this was because of what is said to be the unforeseen departure of the allocated social worker, Mr. P, and health issues concerning A, which have fortunately now been resolved.[15]The foster carers continue to have the same adoption social worker, Miss J, who was allocated in February 2014. She continues to support the carers. I am informed that there has already been an agreement between the carers and the local authority regarding an adoption support plan. The updated information before this court, as a result of the enquiries made by Mr. Y with the independent reviewing officer, confirms the children are doing well and are settled in their placement.[16]As I have said, the plan was for the children to be presented to the panel last year. That did not take place. I was told at the directions hearing, when the matter first came before me, that the plan was for the case to be presented to the panel on 30th April 2015, when it was expected that the foster carers would be recommended for approval as adopters and matched to the children. At the directions hearing on 24th April, the local authority recognised that this would have to be delayed pending the court determining this application. I am told that, subject to what conclusion the court reaches today, if the application is refused, the children’s case will go before the relevant panel next week on 21st May 2015.[17]The local authority, rightly in my view, apologised unreservedly to the court for this delay and recognised that they have let the boys down. I agree. I am told that this has been brought to the attention of the assistant director of the local authority, LH, who is investigating how these delays have come about. I am told that the heads of services for the adoption and children looked after teams are now actively managing the case to ensure that there are no further delays. I am also told that there is no dispute taken to the request by the court that the results of the internal investigation are sent to the court, the children’s guardian and the children’s solicitors. Subject to anything Mr. Verdan may say, I will direct that report should be sent by 18th May 2015. It should not only address the delays in relation to this case, but also how it came about that the letter was sent to the address it was sent to in February 2015 and contained the information that it did.[18]The application with which this court is concerned is made by the children’s paternal uncle. He is the father’s oldest brother. He has had access to the three anonymised judgments that I have already referred to and so has had some information in relation to the background as to how the court has reached the decisions that it has. His application is supported by statements signed by Mr. F dated 20th April 2015 and 8th May 2015. Those are statements that the court has read with considerable care. Those statements set out, in effect, that the wider paternal family, who Mr. F makes this application on behalf of, live abroad and have not previously been assessed, were not aware that the children were not living with their mother. They had understood from the father, Mr. F says in his statement, that the mother was caring for the children. As I have indicated, this application is made on behalf of other members of the paternal family. Mr. F does not put himself forward as a future carer for the children. Submissions[19]The background in relation to the local authority’s actions regarding consideration of the wider family members who could possibly care for these two young children in the event that either of the parents was not able to care for them was considered and investigated by the court in September 2013. The information that was before the court included the details of the family group conference that took place in June 2013, the minutes of which are attached to Mr. F’s first statement. It is, therefore, a document that he has had for some time. The minutes are dated 24th June 2013. Attending that conference are recorded seven members of the paternal family, including Mr. F and also Mrs. SHA, who is present in court with her husband and two of her children, F and D, and who is referred to in the family group conference as the paternal second cousin. As I understand it, the position is that she and Mr. F’s fathers are brothers.[20]Following the family group conference, the local authority carried out viability assessments of five members of the paternal family. Those assessments were negative. They were not taken any further at that time and, as a result, the options that were being considered by the court in 2013 were, effectively, either a placement away from the mother or placement within the mother’s care.[21]As I have said, what is said on behalf of Mr. F is that there has been a change of circumstances. It is really founded on three bases: firstly, that there are new family members who have come forward who have not been previously assessed or considered by the court. Secondly, there is a change in view of the paternal family as to the father’s culpability and responsibility for C’s death. Thirdly, there is the passage of time since the placement orders were made and the significant delays in the local authority in implementing the care plan.[22]If the court accepts that there has been a change in circumstances, it is submitted that, before the court can consider the prospects of success, there would need to be an assessment of the prospective paternal family carers that are being put forward and, without doing that, in effect, the court is imposing an impossible prior condition for leave on the applicants. It is submitted with some force, not only in the written material but also by Miss Papazian who appears on behalf of Mr. F, the importance of the court considering placement options within the birth family. It is said that the welfare of the children would be enhanced by a family placement and, whilst this remains an option for the children (as stressed in Re B-S [2013] EWCA Civ 813), the court needs to consider and investigate whether that option would meet the welfare needs of the children. As Miss Papazian emphasised in her oral submissions, due to the very young age of these children, they have at least 14 to 16 years ahead of them in their minority and this application needs to be considered in that context when considering such a draconian step as a placement away from the birth family. Miss Papazian submits that the applicants feel very strongly (and I hope Mr. F will forgive my paraphrasing of this) that the sins of their father should not be visited on these two young children; that they should not bear the responsibility of the dreadful actions that he took in bringing about C’s death.[23]It is further said that the court needs to take into account that there was too limited an initial enquiry of the wider family members, together with insufficient work being done with the family at the time and during the course of the proceedings to help them understand the complex medical evidence that there was in this case. Mr. F seeks, on behalf of the un-assessed members of the paternal family, the court to grant leave to make their application to revoke the placement order and have an assessment undertaken in relation to that. They submit, with some force, that there will be no impact on the children of further delay as there has already been the delay as a result of the failings of this local authority. They say that they are not proposing there should be any change in the children’s current placement and that stability and position needs to be looked at in the context of the longer term benefits of the court having the advantage of properly being able to consider the children being brought up in the wider birth family. Discussion and Decision[24]This court is once again, in relation to these very young children, faced with a difficult decision as to their future care. This is in the context of placement decisions having been made which, if left in place, will involve their placement away from the birth family.[25]I turn to consider whether there has been a change in circumstances. The local authority, supported by the guardian, submits that there has not. The local authority submits that seven members of the paternal family attended the family group conference in June 2013, including Mr. F, and that, following that conference, five family members were assessed. It was clear from the minutes of the family group conference the father had been charged with murder, the local authority were involved in decisions regarding the future care of the children and there were court proceedings ongoing. In fact, I believe Mr. F attended outside court at one of the hearings in September. There is reference in the minutes to a member of the extended family living in Germany, but no one suggested at that stage that family member should be assessed to be able to provide a home for the children. No one attending the conference in June 2013 suggested other people should be put forward for consideration of the future care of the children, in the event they could not be cared for by their parents.[26]What is submitted by the local authority is, if the family were in such regular contact, as Mr. F suggests, it is difficult to see how those behind the current application were not aware of the need for the wider family to be considered. It is submitted that it is unlikely that the paternal family did not know of the outcome of the family proceedings, either because the mother was living within the paternal family at the relevant time or because they will have heard second-hand what had taken place.[27]What is said by Miss Papazian is that there has only been limited contact. It is said that Mr. F has not seen the mother since November 2013, that they were not aware that the children were not living with her until the letter was sent to the former family home in February 2015 and the prompt way with which they made this application indicates that that is likely to be correct, because this is supported by the timing of the application and what they say in relation to the misinformation that they had from the father in relation to who was caring for the children.[28]Although it is finely balanced, I consider in relation to the first test, whether there has been a change in circumstances, that there probably has. The detailed position regarding the current paternal family members is new information in part since the placement order, save possibly the existence of a family member in Germany that was referred to in the June 2013 minutes. Secondly, on the face of the applicant’s statement, there is some suggestion that there is an understanding of the father’s culpability, although the position is much less clear as to the views on that by the wider family members who are put forward. Thirdly, in relation to supporting the conclusion that there probably has been a change of circumstances, it is a fact that the children have not yet been placed for adoption or made the subject of an adoption order, as was clearly envisaged when this matter was last before the court in June 2014.[29]Having considered that the first test under s.24 has been met, the next and important question for the court is the court’s discretion as to whether leave should be given. In exercising that discretion, the children’s welfare is relevant but not paramount. The question for the court is whether, in all the circumstances, including the prospects of success by those who Mr. F puts forward in securing revocation of the placement order, leave should be given.[30]In considering that wide-ranging discretion, the applicants submit that the court cannot assess those prospects of success, as I have said, without there being an assessment of the paternal family. It is submitted that the children’s interests would not be undermined because they would remain with the current carers so that they would have stability. In addition, it is submitted that the children’s interests would be met by this being properly investigated because it would ensure the benefits of the children being cared for by the wider birth family would be considered effectively.[31]On behalf of the local authority and the guardian it is submitted this would amount to, effectively, a wholesale reversal of the plan endorsed by the court in November 2013 and June 2014. Secondly, they submit that the children have been with their carers for a significant part of their lives. They have built and founded secure attachments with those day to day carers and it is very unlikely, on the timescales that the court would be court looking at, that it is going to be in the children’s interests to change that. Thirdly, they submit that the children have no established relationship with the paternal family members who are being put forward, or any knowledge in fact of their existence. Fourthly, it is said that there are considerable issues regarding the paternal family’s views on child protection, the local authority suggest, that will require careful investigation by the court. As a result of those matters, it is submitted that the prospects of success are, at their highest, very small if not fatally undermined by those features in any event.[32]I have carefully considered these difficult competing considerations. I have reached the conclusion that, in all the circumstances of this case, the court should not grant leave to the applicant to revoke the placement order. I have reached that conclusion for the following reasons.[33]Firstly, as has been indicated, to allow this application to proceed would amount to a wholesale reversal of plans endorsed by the court as being in the children’s interest in November 2013 and June 2014. The length of time the children have been with the carers is considerable, in relation to B since he was only three months old and, in relation to A, since he was 15 months old. In November 2013 and June 2014, I carefully considered their lifelong welfare positions and determined that they required the security and stability of the adoptive placements away from the birth family, which was part of the care plan that was endorsed by the court.[34]Secondly, I have considered the fact that these decisions have been reached without all the knowledge of the paternal family that is now before the court. However, that factor alone, in my judgment, cannot be looked at in isolation of the fact that none of these members of the wider family were put forward when opportunities were given for that to be done, in particular in June 2013. In addition, they are completely unknown to the children and there is, on the face of it, significant factual disputes about the history which would need to be considered and resolved; for example, where the mother was living up until the end of 2013, in whose household that was and the actions of the paternal family.[35]To give just a vignette in relation to the issues that the court would have to consider, at para.21 of the judgment given in June 2014, I said:
“The mother, in her evidence that was before the court then, said that she went to move to stay with the father’s cousin 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 so frightened.”
At para.22 of the judgment, I recorded the fact that, in her statement before the court then, she said that she had decided to leave that house on 29th December. She had hid a bag on that day, fled the following day and went to Brixton police station, where she was placed in a refuge and where she remained at the time of the judgment in June 2014. Then, in her statement, as I outlined near the end of that paragraph, the mother describes her fear of the father and his family and, in her oral evidence at that hearing, she described in some detail the life-long fear she had in relation to actions that may be taken to harm her and the children by the father’s family.[36]The information before the court now, put forward by Mr. F, is that much of that is in dispute by the paternal family who make the application to revoke the placement order. The court would have to investigate and evaluate that and it is very likely that that would take a considerable time. There would need to be a forensic process to assess a number of matters. Firstly, the role of the paternal family in light of what the mother said about their role in the latter part of 2013, as set out in her statement before the court in June 2014. It would then have to assess their view of the risk that the father poses for the children and their real understanding in relation to his responsibility for what happened to C.[37]In addition to that forensic process, which would take some considerable time (I agree with Mr. Verdan it would probably involve a four or five day hearing), there would also need to be assessments way beyond any viability assessments that may be positive of the paternal family. There would need to be assessments of their understanding in relation to the background of this case and a further assessment after the forensic process that I have just outlined, in the same way as I did with the mother in 2013. There would have to be an investigation by the court, findings made and then an assessment in relation to those members of the paternal family who were being put forward as to their understanding in relation to any findings made by the court that were relevant to assess their ability to be able to care for these young children. It is not disputed that process is likely to take between 6 to 12 months, if not longer.[38]In my judgment, bearing in mind the position and needs of these young children, that is too long. Even then, there are very limited prospects of success when one looks at the position in 12 months’ time balanced against the position of the children; they have been with the same carers and have formed secure attachments with them due to the length of time they have been in their care. By embarking on such a process, there is a real risk that the current secure placement where the children are could be put at risk in relation to its stability. Whilst it is said by Miss Papazian that there is no suggestion during this process that Mr. F or the paternal family would seek to move the children from their current placement, the fact is that that placement would not be in the secure setting that the court had envisaged when it made its previous decisions. There is a risk that that continuing uncertainty could risk the stability and undermine the current placement.[39]The court is, therefore, faced with the timescale as outlined above of the process of investigation being at least 12 months and with the position of where these two very young children are in terms of the length of time they have been in their current placement, with the security and stability they have there. Of course, this court has also considered and weighed into the balance the “hinterland” (as Miss Papazian put it) of trying, if at all possible, to secure placement of children within their birth family. The court bears that consideration very much in mind, but it can’t be considered in isolation of the other factors. When considering the second stage, in deciding whether the court should exercise its discretion to be able to grant leave, having considered the matter very carefully on the basis of the discretion the court has and taking into account the facts that I have just set them out, I have reached the conclusion that the application for leave should be refused.[40]As I have indicated, I share the guardian’s concerns set out in the position statement as to why the delays have taken place. I will, therefore, expect the court to receive the report I have indicated by 18th May.[41]Finally, I would like to add, this is a decision I have reached in this case with sadness. However, in the context of this case I have to consider the wider considerations I have outlined above and in those circumstances I refuse the application.