X (A Child: Care & Placement Applications) [2015] EWHC 967 (Fam)

IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child] and members of their his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No NE14C00128[2015] EWHC 967 (Fam)
IN THE FAMILY COURT
Date Wednesday, 4 th March 2015
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: X (A CHILD
The Law Courts
The Quayside
Newcastle-upon-Tyne
NE1 3LA
)
Before
HIS HONOUR JUDGE SIMON WOOD
Re: X (A Child: Care & Placement Applications)
Transcribed from the Official Tape Recording by
Apple Transcription Limited
Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES
Telephone: 0845 604 5642 – Fax: 01706 870838
Counsel for the Local Authority: Miss McKenzie
Counsel for the Mother: Mr Gray
The Maternal Grandparents appeared In Person
Solicitor for the Child: Mr Graham
JUDGMENT
JUDGMENT
HIS HONOUR JUDGE SIMON WOOD:
[1]On 27th April 2014, X was born in Hospital A in Newcastle. He is the first and only child of M and is now 10 months old. Sadly, he was born very premature at 28 weeks, weighing just 1 kilo and, as a consequence, he spent the first two months of his life in hospital and has been left with persistent medical concerns, primarily chronic lung disease of prematurity. There is also a hint of developmental delay, which is presently incapable of being quantified.[2]Newcastle City Council issued care proceedings on 4th July 2014 and now presents the court with a care plan of permanency outside the family by way of adoption. It seeks a care order and a placement order, orders which are supported by X’s children’s guardian, Marian Harris. X’s mother opposes the application, as do her parents, MGF and MGM, who on 17th October were joined to these proceedings as respondents. Their plan is that X should live with them in their family home in Fenham in this city, together with his mother, in what is, effectively, a shared care arrangement with MGM acting as the primary carer for reasons I will come to.[3]This has been a relatively short hearing in which I heard from the key social worker, the principal contact supervisor, from the three family members I have identified and from the children’s guardian. The grandparents were not represented, albeit their case coincided very closely with that of their daughter and so their position insofar as it is understood was largely advanced through the medium of mother’s representation by Mr Gray. Neither the mother nor grandmother speaks English. The grandfather has very little English. Over the course of two days they had between them, effectively, a team of five Romanian interpreters, for they all hail from Romania, who have served them and the court extremely well.[4]Why does the Local Authority say that X was likely to suffer significant harm and that its likelihood is because the child was not receiving the care that would reasonably be expected from a parent? Although the circumstances surrounding X’s birth, his paternity and his potential family situation are about as confused as it is possible to be, the overarching concern of the Local Authority is that the family simply cannot meet X’s health needs. I will explain this in a little more detail. It is not, however, the only concern. Whilst none of them on their own is particularly relied on, it is the combination of factors for a child who the Local Authority says by reason of his health is a child with greater needs than a child without those issues.[5]These factors are, first, the mother’s diagnosis in November 2012 of schizophrenia, which has resulted in her being detained under the Mental Health Act, most recently on 27th March 2014 for a period of almost four weeks. Secondly, since the diagnosis, the schizophrenia has only been intermittently stable due to inconsistent compliance with the medical regime provided for her. According to Dr Rippon, a consultant psychiatrist, whilst the mother has a requirement for long term treatment by way of medication, as well as support and supervision from the community mental health team, the main risk is of acute relapse when she can have symptoms of paranoid ideation and agitation. In such circumstances, she would not be able safely to meet the needs of a child. Thirdly, the extent to which her mental health difficulties contribute to this. The pregnancy was in effect a concealed one and antenatal services were only sought shortly before X’s birth. Fourthly, despite a good commitment on her part to contact, which has involved her travelling three times a week from Newcastle to Consett where the foster carers live, her parenting skills remain limited and there has been little evidence of motivation to improve her ability to contribute to X’s care.[6]There is implied recognition of these concerns in the mother’s own proposal and express recognition of them in the grandparents’ plan to share his care with their daughter, with MGM acting as the primary carer. However, further concerns flow from their position in that, first, the Local Authority says that the family home is seriously overcrowded. It has been very difficult to get a clear picture of who lives there either in assessment or in this hearing, records suggest that as many as eleven people have at times lived in this four-bedroom rented property and it is quite unclear who is living there at any one time, who is sleeping where and what the sleeping arrangements indeed are. Secondly, as part of the process of assessment it was anticipated that the grandparents would not only make themselves available, but commit to regular contact with X in order to develop a relationship and attachment with him. The Local Authority says that whilst MGM has done better than MGF in this regard, the pattern of contact as well as the availability for assessment in the grandfather’s case has lacked the regularity necessary for this to happen.[7]Thirdly, alongside this, and this has been the complete bar to X living at home in the interim, has been the requirement X has for oxygen constantly. Its management and the development of understanding of X’s medical needs so as to respond to them is absolutely central to ensuring that his health needs are met. He requires a very high degree of monitoring by day and night and his carers need to be attuned to and know how to react to quite subtle changes in his presentation to ensure that they are met in circumstances where a failure to make the right call could have potentially fatal consequences. There are two aspects to this. First, there is a need to attend contact to observe X, to build a relationship with him and to learn how to meet his needs from his current carers and that has not, say the Local Authority, been done. Second, there is a need to keep, maintain and manage oxygen in the home. That is vital. It is a potentially hazardous substance in the domestic setting if not properly managed.[8]The grandparents have said from the outset, and continue to say today, that the oxygen requirement has caused them so much worry that they cannot really contemplate it, thus they cannot care for X whilst he is so dependent. It had been hoped that X could have been weaned from oxygen by this month, March 2015. That, unfortunately, is not the case and there is no clear prognosis as to when, if at all, that might happen. Accordingly, they ask me to leave X where he is and where he is agreed to be receiving entirely suitable care, supported by medical professionals, but say that on X coming off oxygen they would like him to be returned to family care. As I have said, there is no timescale, but MGF has said that I should allow a period of six to twelve months, after which he appeared to accept that if X was still dependent, another plan might have to be devised and he conceded that that might include adoption.[9]That feeds into the final Local Authority concern and it is underlined by X’s children’s guardian. There is simply no confidence that within a timescale that meets X’s needs this family can provide him with the care he needs to live safely within his family, despite what everyone agrees is the very real love that they have for him. There were some other issues, which the Local Authority rightly did not pursue. I have no doubt that this is a close, loving family. What this case is about, however, is whether the family can meet this very special boy’s particular needs.[10]Having stated the issues, but before addressing the evidence, I need to fill in some more of the background such that it is known. The family appear to be economic migrants from Romania, who came to the United Kingdom shortly after Romania’s accession to the European Union in 2007. There are at least seven children in the family, there may be more and the mother is the second or third child of the family, now aged 23. The youngest of the six other children in the household appears to be a girl, MA, who is now 9. There is a considerable amount of vagueness about this because the Local Authority has struggled to obtain full details of the genogram, thus, by way of example, MGM has at different times said that her first-born child was a boy and then on other occasions a girl. There is also vagueness about who lives in the house. Despite the family all giving evidence, I am not much clearer about it now. Records held by the Local Authority suggest that at one time at least there were eleven people living in the house. The mother told me that there was only one person under the age of 18 in the house and that there were presently seven adults including her, so that simply added to the confusion.[11]In 2012, the mother was diagnosed with schizophrenia. The circumstances were that her younger brother, then aged 10 or 11, contacted emergency services saying that she was behaving strangely. She was assessed and a diagnosis made. At the time, then aged 21, it was said that she was in charge of her six younger siblings whilst her parents were in London attending a funeral. She was detained under s.2 of the Mental Health Act with psychotic, including delusional, symptoms. She was treated, her mental health settled and she was discharged. In 2013, the family went back to Romania for what appears to have been a family holiday. The mother says that, whilst there, she met a man at a fair, married him and moved in with him, remaining in Romania when her family returned to the United Kingdom. Unfortunately, he became violent so she decided to leave him and come back to the United Kingdom.[12]She travelled back with one of her brothers, but on 27th March 2014, on arrival at Dover Docks, she refused to leave the ferry, lashed out at her brother and was again detained under s.2 of the Mental Health Act. She was transferred to a specialist ward the next day suffering from an acute psychotic episode. The deterioration was considered to be secondary to her stopping medication on the ward and there was a presentation of significant self-neglect. When unwell, she lashed out at patients and staff and there was a requirement for intramuscular medication and seclusion. She gradually settled, although on discharge four weeks later she was still suffering auditory hallucinations. The risk going forwards is one of noncompliance with medication, disengagement with services and aggression when she is unwell.[13]During the course of this admission, it was discovered that the mother was pregnant. Again, the evidence is conflicting, but the mother says that the father is her “husband” and whether or not she knew she was pregnant before she left him, she says she did not tell him. There had been no engagement with antenatal services. In the event, X was born very prematurely, about two weeks after the pregnancy was identified. X had to be transferred to the special care baby unit in Sunderland because no cots were available in Newcastle. The mother remained in hospital for a few days after his birth and then on 11th May, X was transferred back from the Sunderland hospital to Hospital A.[14]The plan had been for X to go home with his mother, but in the care of his grandparents because of the mother’s very recent mental health issues. However, the hospital was concerned that the mother had attended various meetings with its social worker and other the medical staff, the grandfather had attended one, but the grandmother had never been seen. It was said that expectations had been set out around regular visiting and learning how to manage X’s oxygen. The hospital concluded that the grandparents were not engaging and that the mother could not look after X herself, hence the Local Authority sought an interim care order because there were insufficient protective factors in place and the identified primary carers, the grandparents, had not engaged in the hospital training.[15]At a hearing before me on 4th July, the mother did not attend, having told the social worker that she did not want a solicitor and did not want to attend court. I made an interim care order and X was transferred to his current foster carers in Consett where he remains, with, as I say, his needs very well met by carers who have a full understanding of his particular medical requirements. Contact for mother had originally been anticipated to take place five days a week, but it was reduced to a more manageable three days a week to reflect the considerable travelling involved between Newcastle and Consett. To the mother’s enormous credit, she has faithfully attended contact. As I have said, there is an issue about the grandparents. More recently there was some evidence of better compliance though brought about by the pressing of the urgency of the need to undergo oxygen training.[16]It is convenient at this stage in that context to refer to the evidence of X’s consultant, Dr Ward Platt. In August, in addition to chronic lung disease of prematurity, he had considerable concerns about X’s development. He did not fix and follow very well, his head control was not good, his muscle tone was reduced and he had hypertonia of his trunk, neck and all four limbs. By October, attempts to reduce the amount of oxygen he was receiving had been unsuccessful. He was described as needing “an unusually high flow of oxygen in spite of growing very well.” Dr Ward Platt describes himself as being “rather more relaxed about” his development, but emphasised it was still early days. In November, given the considerable and on-going need for oxygen, he said that he was sure that X would need it in six months’ time, that would be around about May and it was possible, but not certain, that he would be out of oxygen by the end of 2015. It was too early to speculate on X’s general health and it would not be possible to take what he called a sensible view before X was 18 months old. X’s most recent review was in mid-January. Whilst his general development concerns were described as receding, oxygen remained a significant issue. Overnight reduction was inappropriate so it had to be left at the higher level that he has been on for another two or three months for review at the next meeting in April.[17]A number of other assessments have been carried out. There has been a psychiatric assessment of the mother by Dr Rippon, there has been a psychological assessment of the mother by Dr Hill and parenting assessments separately of the mother and of the grandparents have been carried out by the Local Authority. I have mentioned Dr Rippon’s evidence already. I did not need to hear from her. It was agreed. There is little more that I need say at this stage. The mother could care for X from a psychiatric point of view providing, first of all, she is well and, second, that her functioning has not been detrimentally impacted by the long-term negative consequences of schizophrenia, but she would not be able to care for him when unwell. Her wellbeing was dependent on medical compliance which had been in place since X’s birth, albeit she still needs prompts. It was too early to give a prognosis about the long-term consequences of schizophrenia and she deferred to Dr Hill in respect of cognitive assessment.[18]Dr Hill encountered similar difficulties to those experienced by the Local Authority and, indeed, by the court. So, by way of example, she said at paragraph 3.2:
“Whilst there was no indication of a globalised intellectual impairment, sometimes M did not always answer the question asked, giving unclear responses as if she had confused two issues. For example, on one occasion when we were talking about a visit to the hospital she then seemed to morph into talking about the local college and [Stef?] and it became impossible to separate out the two issues or what she had been talking about.”
She acknowledged that some of that arose out of translation and she gave an example of that. She went on to say this:
“Often M appeared flat emotionally, that is there was little emotional expression regardless of the topic of conversation. It was not possible to ascertain whether this reflected her usual self, the effects of medication and/or residual symptoms of mental illness.”
A little later, she said:
“M’s responses were also quite limited with little spontaneity, preferring to answer briefly to specific questions rather than engaging in a more free flowing two-way conversation. Again, whether this reflected personality variables or was a direct reaction to stress is unclear. Her mother presented the same, preferring specific answers to specific questions. On the brief occasions I spoke with MGF, he appeared much more emotionally expressive, quite forceful in character and loud in his volume of speech.”
I should say that what Dr Hill there observed was very much reflected in the court’s view by their presentation during the course of the hearing.[19]Dr Hill also commented on the difficulty of obtaining a clear impression of the home environment and indeed the family’s proposal:
“Other than a general notion of shared care, M being supported by her family, neither could I obtain any impression of who would have primary responsibility for or how X’s needs would be met alongside those of the other children living in the house. M did not think that having the care of a very young child such as X would significantly affect how much time she should give to her brothers and sisters.”
[20]The conclusions that she reached that are relevant in relation to parental capacity, to keep a child safe from harm, were that it would in the context of it being, as she put it, a joint effort between M and her parents, she was unclear as to how it would work in practice and she asked the question as to whether a parenting assessment might shed light on such matters. Asked about the mother’s capacity to understand X’s needs, she said this:
“M appears to be frightened of X’s fragility and special needs. Whether or not she could understand them intellectually, she appears unable emotionally to face his special needs and learn the necessary skills to be able to meet these. This position is reflected in her parents’ response too.”
When asked about the role of the maternal grandparents and whether they with or without their daughter could meet his needs, she said this:
“Again, whilst X has special needs, neither M nor her parents appear emotionally capable of containing and managing their own fears in order to learn the skills to look after X satisfactorily. They are more likely to be able to meet his needs thereafter, although my report does not represent a parenting assessment.”
[21]I heard from the key social worker, who was the author of both assessments of family members. I have alluded to a number of the difficulties of assessment. Her assessments are as comprehensive as they could be and in relation to the mother, it concluded that she could not care for X herself, her conclusion that she and her parents on their own account agree with. There was a particular concern, articulated in her oral evidence, that the Local Authority could not get to the bottom of several issues, the most important of which is probably the identify of X’s father. The mother consistently said that she did not know his name. She said she called him “Love” and could not provide any information leading to his identity or whereabouts. The Local Authority simply did not believe her. The improbability of having lived with a man whom she said she married on her account for four months, and on the timetable later discussed it could have been up to twice that length of time, made it literally incredible. Therefore, it was concerned that despite language issues, there was a degree of lack of cooperation that was concerning, quite apart from a refusal to recognise the possible importance of the father in X’s life and his potential ability to be a carer or at least be a relevant person to X. There were other issues, but I think that that is the only one that I need refer to at this stage.[22]The Local Authority was also concerned about the mother’s presentation in contact. It should be stressed, as I have mentioned, that her consistency of attending was not in issue. It was more about her ability to interact with X. This came primarily from the contact supervisor, Jocelyn Maughan who had supervised roughly about two thirds of contact, but it was also touched on by the social worker and the children’s guardian. In relation to this issue, the contact supervisor said that she had not seen demonstration of emotional warmth from mother to child beyond that demonstrated by some very limited interaction, such as greeting him occasionally verbally, talking to him softly in her native language, but not on every occasion and for very short periods of time. She described how mother sometimes touches X’s chin with her index finger, which makes him laugh and she derives pleasure from that, but even that is not consistent and she described that as being the limit of the mother’s attempts to interact with and stimulate X.[23]She said this:
“For the majority of the sessions, X tends to remain silent and does not convey any emotion at all through facial expression. I have not observed her kiss X and although she holds him throughout, she does not cradle him close, preferring to lay him across her lap with one arm or hand behind his head or upper body. At the end of the contact session, I inform her it is time to go and she places X in the Moses basket without kissing him, saying goodbye and usually without looking at him at all.”
That said, she had appeared keen to ensure that basic needs were met: feeding him, winding him and changing him. She had asked appropriate questions about his wellbeing generally. She had required some help on other practical matters, but it was really the emotional warmth that concerned the contact supervisor.[24]She gave evidence and it was put to her that the mother does interact with X and she said this:
“I have seen very, very limited change. She now says goodbye with more regularity. Sometimes she smiles when she enters the room, but beyond that, I have seen very little change. There are some times, with prompting, she has selected a toy for him that she might hold in front of his face. If it is electronic, she might press the button, but beyond that, there is nothing more.”
She refuted the suggestion that mother laughed with X. She had not witnessed him copying or mimicking any sounds. She agreed that if X cried, she attempted to comfort him, but she rarely spoke to him. She said she rocked him, but it was not always appropriate. She tended to interpret it as him being tired where, in reality, he was crying from frustration because he wanted to play or alter his position.[25]The guardian made very similar observations. She described communication with the baby as “remarkably lacking,” even taking into account the artificial environment of supervised contact. Her suggestion of, for example, obtaining speaking toys from Romania to provide some cultural link, did not appear to have been taken up. What the social worker said was not in doubt was the mother’s love for X and her commitment to him whilst placed in foster care and I do not doubt that at all.[26]She also assessed the grandparents, or at least attempted to because the grandfather was not available for most of the time of the assessment having gone to Romania. They do not have the mother’s mental health difficulties, but, of course, the language barrier still exists. Happily, there has been a consistent interpreter for the family, Stefania, whose command of English is really excellent. Despite that, the difficulties of getting to the bottom of things, perhaps most concisely described by Dr Hill, was as great as it had been with the mother. I have mentioned the problem of establishing who lives in the home. Whoever does at any time, it is a busy, complex household with many visitors, both from family and others, possibly the church.[27]MGM was born in 1969, so she is 45. It is variously said she has raised nine or ten children and it is common ground that none have presented with any particular difficulties other than the mother with her mental health problems. None, save for the mother, have significant health issues and there are no material concerns about any of them. Despite living in the United Kingdom now for over seven years, the grandmother still speaks no English, despite her children attending English schools. Neither she nor the grandfather thinks that the house is overcrowded. A cot had been prepared in one of the four bedrooms, which are all clean and tidy, for X’s arrival. When the social worker tried to find out how X’s specific needs would be met in this busy household, MGM said, “We’ll manage and see when he returns home.”[28]The social worker was extremely concerned by the level of commitment shown to contact with X from people who were prospective primary carers. It became a matter of controversy in circumstances where it ought not and after the close of evidence, I asked the Local Authority to prepare a schedule. That was duly produced and no submissions have been made in respect of it prior to this judgment being given. From the time that X was placed in foster care, 11th July, up to 27th February, that is to say last Friday, the grandmother has attended a total of twelve contacts. Some of them had huge gaps. So, for example, between 14th July and 24th September, between 7th November and 12th December and between 12th December and 21st January. The grandfather has attended still fewer, just four. They were on 14th July, 22nd October and 28th and 30th January. In the same overall period, the mother has attended some 68 occasions, contacts at which her parents would also have been welcome.[29]The consequences, say the Local Authority, are, first, that no real bond has developed between X and his grandparents. Secondly, they have no real understanding of X’s presentation and needs. Thirdly, they have not acquired the ability to respond to his extremely complex medical situation, which, as I say, requires observation of potentially subtle changes that need a response that can happen both in daytime and at night. Accordingly, the Local Authority is extremely concerned as to how those needs could be met against that background. In responding, the grandparents said that they had not had any such problems with their own children who had not had needs of this type and they, to the social worker, seemed to lack insight into the real needs that X has and still less a plan as to how they could meet them in such a busy environment.[30]The grandmother’s interaction with X was undoubtedly more appropriate than that of her daughter. She is described in contact as handling him with confidence and communicating with him, demonstrating emotional warmth. However, it was noted that she tended to take a backseat role to her daughter and let her attempt to meet his needs and that was obviously a concern to the Local Authority in a shared care arrangement.[31]The opportunity for the grandfather to demonstrate how he would handle X has by virtue of the frequency of contact been very limited indeed. In fact, on one occasion when I understood X to be, in his terms, slightly under the weather but not in fact ill, he had a reaction that was felt exacerbated rather than calmed the situation. That was on 28th January, the first time that Miss Maughan, the contact the supervisor, had met him. She had travelled with him and she found very quickly that he was not familiar with X’s unusual presentation.[32]He was said to be clearly very distressed when X was unwell and said very clearly to her that he required immediate medical attention at that point. Miss Maughan sought to reassure him that he had had the attention he needed and it was simply a case of him being cared for at home until he was better. MGF disagreed with that, indicated that he felt it was beyond the capabilities of the foster carers to meet them and she describes him as very anxious, instructing his daughter to comfort him in various ways and she felt that GMF’s anxiety made the mother more anxious, such that she started altering his position very frequently. As a further consequence, the mother was taking advice from her father rather than that of the foster carer, such that there came a time where the foster carer simply had to take over. It was put to her by GMF that X was very poorly and he was very concerned because, as he put it, “I know when a child is seriously ill. He needs to be taken to hospital.” The witness was very clear that in her opinion, X was presenting, in his terms, relatively normally and he did not require further treatment.[33]All of this, the involvement particularly of the grandparents, has been disappointing from the Local Authority’s point of view. Miss Redshaw, the social worker, said of this to the solicitor for X that the grandparents had been encouraged to visit him in hospital, had had made provisions for things like bus passes, the contact arrangements were changed better to meet not just X’s needs but their ability to attend. She described taking steps to encourage them at every stage, to remind them at care team meetings of what they needed to do as well as on the phone and explicitly in relation to the need for oxygen training. She said that they effectively put themselves forward as carers, which had caused her to explain the need to bond with and understand X. She said it was very hard to say what, if any, attachment the grandmother had to X, noting that he tended to look to his foster carers with whom there is a clear attachment. She indicated that the oxygen training was just one part of the health needs, the importance of being vigilant over that. If the grandparents did not attend with regularity, they were much less likely to understand those factors such that it was her opinion that their understanding was very limited, borne out by the contact records and the observations of the supervisor. She was very clear that she had regarded the importance of commitment to contact as something that she needed to and had impressed upon them throughout.[34]So far as the oxygen is concerned, I should say a little more. The need for it is explained by the doctor. The foster carers had to undertake training in order to ensure appropriate and safe use of it. At the hearing on 20th November, it was pressed upon the grandparents that they needed to be given the opportunity to access this training and they said, having previously rejected it, that they would do it. Therefore, attempts were made to arrange it from November onwards. The foster carers had agreed to undertake some of the initial training and, indeed, they did that, but it was predominantly with the mother rather than the grandparents, who did not attend. The foster carers have repeatedly spoken to family members about why X needs the oxygen, what it does and what would happen if he does not have it. One of the foster carers made it clear it was a matter of life and death. The mother’s response was that she would simply put her hand on X’s chest to see if his heart was beating fast and that indicated to the Local Authority that they were was simply no insight. Arrangements were made for the British Oxygen Company to come out. They supply the oxygen. There was a mix up on one of the occasions. MGF did though attend at such a session and was encouraged to change the oxygen canister, which he did under close guidance. The view was that further support would be needed if this were to go any further. That has remained the situation.[35]Therefore, for these reasons, the Local Authority, through the social worker, felt that certainly the mother could not meet X’s needs. She had analysed that against the disadvantages of the only other option, which is adoption, and despite its disadvantages, concluded that this was an exceptional case where X’s overriding welfare requirements were such that adoption was the best outcome.[36]The mother and her parents all gave evidence. The mother had filed a statement acknowledging that she could not care alone, expressing the fear that her father had articulated about the oxygen. She confirmed her proposal. She did not accept what was said about her contact. Attempts to clarify some of the confusion had very limited success. It became clear that she did know who the father was, his name and so on, although she denied that her parents did. However, she had declined to name him because she had contacted him behind her parents’ back via a third party and he had said he did not want to care for X. She had not told her parents about that because they would not have approved of the idea of X going to Romania. She agreed that this man was violent. Of contacting him she said, “It was a bad idea, but that’s how I was thinking then.”[37]MGF gave evidence. He is an outgoing man who holds strong views and is anxious to communicate them. He was entirely appropriate. He made a statement in which he accepted that he could not care for X whilst he was dependent on oxygen. “We are too frightened to learn.” He said their youngest child is 9 and so is able to look after herself to a significant degree, hence there would be plenty of time for X. He had a good understanding of the mother’s mental health issues and they could manage that. He confirmed that the mother was not in his opinion capable of bringing up X, “Growing this baby,” as he put it. He was very worried about the oxygen. He understood it may take a long time. “I don’t want to put him in danger.” He understood, “That he needs observation all the time and I’m afraid something would happen in this house. I love him like a child of mine. That’s why I didn’t take him home when he was so small,” a reference to his prematurity. He told me that in Romania a child with an indefinite disability could stay for a few years in hospital and then go home and he wanted something like that for X.[38]Cross-examined, he was adamant that he did not know who the father was, but in any event, it was not an issue because the mother is living in their care and “it is not his fault the baby was born.” He said that the mother had relapsed in 2014 because her medicine was finished. “We thought she was cured for life.” I think he understands that not to be the case now and confirmed that she still sometimes forgets to take her medication. He said that he had missed out on the assessment because he had been in Romania, but only for a week. He denied that he had only been to contact a few times, “I went many times,” he said, hence my calling for the record. He told Mr Gray on behalf of the mother that he would recognise the mother’s mental health problems in the future by keeping an eye on her. His wife would be the main carer, “I can trust her” and he said, “We care about our child. What is worrying me is about the oxygen. It’s like a car without petrol, you can’t go anywhere. If the child has no air, it will die. I would not want the child to be born like this.” Asked whether a time would come when X could come home and they would administer the oxygen, he said this, “We are worried about the oxygen. Give him six months to one year and don’t take him from his mother at all.” He repeated when asked the question a second time, “We are worried about the oxygen, which is why we refuse [that is to say to have him at home] at the moment.”[39]With some persuasion, MGM also gave evidence. She had made no statement in advance of the hearing. She confirmed what her husband said and of the oxygen, in particular, she said this:
“I am very worried about the oxygen problem and having it in my house. I could take care of him, but because of the oxygen, there might be a problem because he can take it off with one hand. I’m afraid it might be a very dangerous situation for him. I don’t think I could manage it myself.”
Asked about the question of bonding, she acknowledged its importance and the inability to do it if you are not there and she said it was difficult to bond in contact. She said:
“I could not offer him more because my children have to go to school. I need to cook for them. From my side, that was what I could offer, but my daughter could go every time. I could have done more to get bonding, but I had other things to do, to take the kids to school and clean the house.”
She said if she was in the house she could give him not one hour, as in contact, but ten hours. She would still have her other children and house cleaning, but she would have time. Asked about help, she said that she would rely on her daughter. “When she’s caring for the baby, I will cook and when I’m caring for the baby, she will cook.” That was the evidence, save from the evidence of the children’s guardian to whom I will come.[40]Care proceedings involve two principal questions. First, are the threshold criteria for making a care order under s.31 of the Children Act satisfied? Secondly, if so, what order should the court make? Section 31(2) provides that a court may only make a care order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to 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 the child. In this case, it was not disputed that the threshold criteria under s.31 have been crossed by virtue of the mother’s concession that she could not care for X, certainly whilst dependent on oxygen.[41]The Local Authority invite other findings to be made and I think rightly so and in order to do so I need to make some assessment of the family members. They are, as I have said, very much as described by Dr Hill. I cannot do better than refer to the extract from the report I have already cited. They were all polite and respectful. I found the mother and MGM to be emotionally flat. MGF is altogether more outgoing, he is passionate and he takes his responsibilities seriously as the head of a large household. The mother did smile occasionally in the course of her evidence, although I was not entirely sure that it was context appropriate, but I attach no real significance to that. She became slightly tearful when describing how she felt controlled in contact, “All these people are looking at me and seem to have the impression that I am crazy.” One could not help but feel sorry for her in relation to that. It is a deeply uncomfortable experience being scrutinised.[42]I am quite clear, however, that the mother has made a determined attempt to prevent the father of X from being identified. That is, regardless of any views of him, a serious matter in terms of making plans for X and enabling him to know his life story in due course. I am also clear having seen her that the assessment of her ability to meet X’s needs is very limited indeed. That is apparent throughout contact, as observed by everyone. I accept the evidence of Miss Maughan, who has seen most of it. She has simply been unable to make a connection with her child, despite her obvious love for him. It is very sad indeed that the concession she makes is properly made.[43]With the grandparents, the difficulty I have had is the same as that experienced by the Local Authority and Dr Hill. It is very difficult indeed to get to the bottom of anything. I find it incredible that they do not know with whom their daughter was living and, thus, the identity of X’s father. They should understand its importance and the fact that they have extensive family in the region would make it possible to find him if they really did not know. There was an interesting exchange with MGF in the course of his asking questions of Miss Redpath. On asking questions about the father, he said, “Well, X’s birth certificate. Well, he doesn’t have a birth certificate and I don’t know his name.” He went on to say she came back to England and was pregnant. I pressed him to indicate what more he knew given that his daughter and this man had lived together, that he must know or have the means of finding out his name and address and he responded by shrugging his shoulders, saying, “I have no more questions” and sat down. I thought that was behaviour designed to avoid answering a question. It seemed to me to be a repetition of the type of responses that the Local Authority received in respect of this and other issues when they were trying to find answers.[44]The maternal grandmother gave an impression of being quite overwhelmed by this whole process in general and X’s needs in particular. I do have very considerable sympathy with her in relation to the former. She, as all the family members, comes from a very different culture, from a foreign country. They do not share the language, they have a limited understanding of the system and they have in the middle of this a sick child, something also out with their experience. I am equally sure, however, that the Local Authority and others, such as the foster carers, the contact supervisor, the guardian, community nurse, have all tried their hardest to guide and direct the family as to what is required, yet, sadly, it has brought about little change.[45]Turning to the findings that the Local Authority continue to seek. First of all, that the mother has schizophrenia, was diagnosed in November 2012 and detained in 2014 is accepted. That she failed to engage consistently with psychiatric services to access appropriate treatment for mental health, certainly historically, had been true and it is also the case that she will require long term drug therapy to prevent a relapse. The Local Authority rightly did not pursue the lack of insight that the grandparents have in the light of the evidence that was given in relation to the mother’s illness. The fact that no medical attention was sought during pregnancy and antenatal care was only sought at 26 weeks. I agree on all of the evidence that the family home is overcrowded with very limited preparation for X’s needs. That was spoken of by not just the social worker, but the guardian in the context of what X was going to need. The sixth matter was the failure to show commitment to building a relationship. On all of the evidence, I am satisfied that the Local Authority has tried its hardest to persuade these grandparents to engage. The schedule that has belatedly been produced, I am afraid, simply speaks for itself. That the proposed primary carer has only attended twelve contacts out of a possible 79 or the 68 that the mother went to between the middle of July and the end of February really speaks for itself and the position of the grandfather is even more stark.[46]The seventh matter is I think conceded that the mother lacks parenting skills, although I think she disputes that, but I find that she has demonstrated little motivation to improve her ability to care for X. It seems to the court that it is beyond argument that the mother and maternal grandparents have failed to engage in order to guide insight into the additional health needs and how to meet them. All three relevant adults have indicated that they are not in a position to care for X whilst dependent on oxygen. The oxygen is in many ways the crux. Dr Hill’s analysis of the mother being frightened of X’s fragility and special needs is as correct today as it was six months ago in September. Therefore, those are the findings I make.[47]It now falls for me to consider the question of what order I should make. In answer that question I apply well-established legal principles. I bear in mind the rights of the family under Article 8 of the European Convention of Human Rights to respect for family and private life. Under s.1 of the Children Act X’s welfare is my paramount consideration in the care proceedings. Under s.1(2) any delay in making decisions concerning his future is likely to prejudice his welfare. Under s.1(3) there is a checklist of factors to be taken into account in determining where his welfare lies and what order should be made. On the application for a placement order, the court applies s.1 of the 2002 Adoption and Children Act. On such an application my paramount consideration is X’s welfare throughout his life. Again, I take into account the fact that delay in coming to a decision is likely to prejudice his welfare. There is again a checklist of factors to be taken into account. In this case, the important factors are, plainly, X’s needs, the likely effect on him throughout his life of having ceased to be a member of his family and the ability of his family to meet his needs.[48]In addition, both Acts require the court to have regard to the range of orders available. Under s.21(3) of the 2002 Act a court may not make a placement order unless satisfied either that the parent has consented to the child being placed for adoption or that her consent should be dispensed with. In this case, the mother does not consent and so the court will have to consider its power under s.52(1)(b) of the Act as to whether to dispense with her consent if the welfare of the child requires the consent to be dispensed with. These provisions have all been subject to considerable analysis in a number of important decisions by the higher courts, starting with Re B (A Child) [2013] UKSC 33 by the Supreme Court and in a series of decisions in the Court of Appeal, culminating in Re B-S (Children) [2013] EWCA Civ 1146 and Re W (Children) [2014] 14 EWFC 22 and as more recently explained by Re R (A Child) [2014] EWCA Civ 1625. I have had those decisions firmly in mind at all points during this hearing.[49]In Re B,the Supreme Court, having reminded itself of the European jurisprudence, reiterated that the test for severing a relationship between a parent and child is very strict so that in the words of Baroness Hale at paragraph 198 it should occur:
“Only in exceptional circumstances and when motivated by overriding requirements pertaining to the child’s welfare. In short, where nothing else will do. In many cases and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.”
As Lord Neuberger observed at paragraph 77:
“Making a child subject to a care order with a plan for adoption should be a last resort where no other course was possible in their interests.”
[50]That interpretation was reiterated by Sir James Munby, the President, giving the judgment in the Court of Appeal in Re B-S. He emphasised that the statutory language imposes a stringent test and what had to be shown was that the child’s welfare required parental consent to adoption to be dispensed with. At paragraph 34 in his judgment, the President identified two central things required where a court is being asked to approve a care plan for adoption or make a non-consensual placement order. First, there must be proper evidence both from the Local Authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. The President endorsed what Black LJ said in Plymouth CC v G (children)[2010] EWCA Civ 1271:
“The court requires not only a list of the factors that are relevant to the central decision, but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children and a fully reasoned recommendation.”
[51]The second thing identified by the President as essential is an adequately reasoned judgment. In this context, he cited with approval of the observations of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965: “In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."[52]None of that was new law. The Court of Appeal was simply emphasising the need for rigorous analysis and comparison of the realistic options for the child’s future, having regard to the advantages and disadvantages of each as required by the checklist that I have referred to, each of which requires that the court must consider the range of options available.[53]In this case, there are but two options. Option one is placement in family care. The advantages of such a placement are self-evident. Children should be brought up by their parents, or one of them, or their family. It is invariably the best option. These grandparents have very good experience of bringing up children and have done so with apparent success with their own. I should mention, lest there be any doubt, that the mother’s mental health issues are no reflection at all on their capability as parents. A further factor in this case is that, as this is a Romanian family, it is living in a foreign land. As Mr Gray emphasises, that background is particularly important for X as the chances of it being possible to meet his cultural heritage within an adoptive placement are not good at all. There is no doubt that X is a much wanted and much loved child. There is in the court’s judgment no possibility of him coming to harm intentionally in the care of his family. The difficulty with which the mother and grandparents wrestle is X’s health needs. I am reluctant to say that he needs better than good enough care. What he needs, however, is care that can meet his needs, which are very considerably in excess of those of another 10 to 11 month old boy. That is not in dispute. Nor is it in dispute that the family’s fear of those needs is such that they feel unable to care for him until they lessen. The hoped for cessation of dependence on oxygen has not materialised. It may or may not do so in the future. It may continue until the end of this year, by which time X will be getting on for 21 months old. It may continue indefinitely. The family recognise that and respect the medical view. They say, therefore, that he should remain, in effect, where he is until then, whereupon he can come home.[54]The Local Authority and the children’s guardian disagree. The guardian put it very succinctly in her oral evidence to me. She said this:
“I can fully understand that the family want longer time for his health to improve, but time is passing. He is a baby and needs the court to make decisions about his future. In my opinion, to wait for six or twelve months would be very uncertain. He needs security and stability by reason of his age. Looking at his welfare needs, the court has developed timetables based on good information as to what is best for children. It is generally considered that timely decision making is important. My fear would be that six to twelve months on, things would be just as they are and then what will happen to X?”
[55]In failing to see this, the Local Authority and guardian say that for whatever reason the family has not developed the required understanding. They have failed to establish a relationship with X, which would enable a transfer of attachment of bond from foster carer to them when the time comes, whenever it is. They have failed to take the opportunity to do so in a way that gives no confidence that they would do so in the future and the grandmother, in pointing as she did to the scale of her other commitments, really indicates just why. This is not, say the Local Authority, a cultural issue. It is a failure to meet a universal need that any baby has to bond with its primary carer and they either lack the insight to see that or, if they have the insight, they have not been able to act upon it.[56]In her careful analysis, the guardian developed this and of the grandparents she said this at paragraph 29:
“MGPs’ speak of a desire to assume the care of X. However, their actions in even the limited role they presently have in his life seem to belie these intentions. Either they do not understand or accept that X’s emotionally wellbeing is promoted by them making regular meaningful contact with him or they lack the level of commitment to meet this need. In either case, by not responding to the importance for baby X’s emotional development of building early bonds or at least familiarity with his would be family carers, MGPs have undermined their own abilities to demonstrate good enough care. Viewed optimistically, it may be that MGPs are trusting in nature and rely upon his foster carers and the Local Authority to care well for X. However, from the child’s perspective, such an attitude might be seen as almost one of abandonment and lack of consistent interest and affection. Caring for X is presently demanding and one assumes stressful for the adults responsible. His care seems to have become no less taxing and, indeed, is more relenting with the passage of months.”
She then goes on to indicate the level of parenting that he requires.[57]She also addressed, as required to do so by the jurisprudence I have referred to, whether support services supplied by the Local Authority and other agencies might enable the family to provide him with good enough care and she said this:
“Unfortunately, given his present level of physical needs and the currently observed capacity of family members to address these needs, coupled with the uncertainty of any future progress of setback, I cannot envisage any support services being able to plug the gaps. X presently needs day and night attention, which is exhausting for any adult. GMPs already have a large family to care for and obtaining the individual and extensive space in the adults’ time X’s care requires is difficult to imagine. Support services are finite and cannot offer overnight assistance.”
In short, the guardian endorsed the Local Authority concerns set out in its detailed Re B-S analysis, which has not been the subject to any challenge, and she simply cannot justify indefinite delay as would be required.[58]That is the first option. The second option is placement for adoption. The advantages of this were set out very clearly by the social worker in her analysis. She listed a series of factors for and against. In favour, X would be placed with suitably assessed substitute parents who had been trained to meet his appropriate needs within a permanent environment. Next, he would be young enough to develop secure attachments. Third, his day-to-day needs would be met safely in a caring, loving environment and he would grow up in a family unit where he would be claimed and loved. He would be, as I say, well cared for by suitably assessed parents who have been assessed to work with services and there would be on-going support provided. Contact with the family would cease. That is an advantage on one level, but it would also assist in forming secure attachments to his new carers and it would be possible to maintain links with his birth family indirectly. Set against that, of course, a plan for adoption means the permanent severing of direct contact between X and his family. There may well be difficulties identifying suitable adoptive parents due to his additional health needs and the developmental uncertainty as well as his mother’s mental health diagnosis. Thirdly, there may well be difficulties (Mr Gray puts these as being almost inevitable) in identifying adoptive parents due to cultural needs.[59]The guardian adopts that analysis. She is particularly concerned about delay. Whilst, of course, in certain circumstances the President has identified the fact that delay can be justified, Miss Harris suggests that this is not such a case. She does so for this reason. “At this time, there does not appear to be any reasonable prospect of X’s mother and his maternal family being able to take on the care of X to a safe and good enough standard in the near future. X has been in foster care for seven months having never lived within the family home. There is little indication that any significant changes have occurred within his family to make them better able to assume his care or, alternatively, that changes in X have made it easier for them to care for him. The time has now been reached when final decisions are to be made which give weight to the argument that a permanent alternative family placement is now required.” She adds that he will still be able to build strong attachments, as the social worker suggested.[60]In my judgment, the evidence that has been put before the court fully complies with the requirements of the Court of Appeal in Re B-S and other cases. The realistic options, a return to family care or placement permanently outside the family, have been comprehensively analysed and the advantages and disadvantages of each course carefully considered by the Local Authority and the guardian and I accept their analyses. It is a tragedy for X and his family that he has been born with such significant problems. One could not help but feel the heartfelt remark of the grandfather, “I would not want the child to be born like this.” No one would. However, sadly, X was and the family, frankly, say that they cannot care for him at present.[61]If there was a clear indication of the progress that Doctor Ward Platt might have anticipated, the case could have been a very different one, but not only is there not, the court finds that the mother, or more particularly the grandparents, have not recognised the consequences flowing from that and gone on to do everything in their power to be ready to take over his care by commitment to contact and by building a relationship with him. Had they done so, the court would have more confidence than it does as to their ability to take on X’s care in the future. It cannot have the confidence either, but the time between now and whenever oxygen dependency ceases will be used to that effect because the history shows that the already significant delay since X went into foster care has not been used to advantage. It is a case of past performance being the best evidence of future intentions. This is particularly sad for the mother and X because the mother has committed to contact, even if she has not been able to learn from it as had been hoped.[62]The Supreme Court reminded us that adoption is a last resort. Whenever possible, children should be brought up by their natural parents or family. Adoption is not a panacea. It has advantages and disadvantages, as the Local Authority and guardian note. However, in this case, having conducted the balancing exercise, I unhesitatingly conclude that there is no realistic possibility of X being safely returned to the family care within a timescale commensurate with his needs and that his needs for stability and permanence can only been met in an adoptive placement. In so concluding, I note that X is, of course, too young for wishes and feelings, but he has very particular needs which are central to this decision and his family simply cannot meet them.[63]The likely effect on him throughout his life, particularly as a Romanian child in the United Kingdom, has weighed very heavily with me. However, it has to be balanced with the need to ensure that he is kept well and cared for by reference to his health and that, absence such an order, it seems to the court that he will be at risk of suffering harm. He cannot return home at present and the delay in the circumstances I have explained would be harmful to his welfare in terms of him being able to make a permanent attachment in due course.[64]I acknowledge, of course, the views that his family hold. I fully appreciate that the order that is made in the United Kingdom is an order that almost certainly would not be made in their country of origin, but it is my responsibility to apply the law of England and Wales sitting as I do in England. I have regard, of course, to the range of powers that are available to me. I note that X’s needs mean that he will be a more difficult child to place than a child of his age without those needs, but the evidence of the Local Authority that potential families exist coincides with the court’s own experience and would not be a reason for not making an order.[65]Having regard therefore to the welfare checklist and the Article 8 rights that I have previously mentioned, I will make a care order, and having concluded that X’s welfare requires me to dispense with the mother’s consent to placing him for adoption, I make a placement order authorising the Local Authority so to place him. [Judgment ends]