MB, PB and AL (Children), Re [2014] EWCC B45 (Fam) (16 April 2014)

This judgment is anonymised in accordance with the President’s Guidance on Transparency dated 3^rd February 2014

Introduction

In these proceedings I am concerned with three children, MB (dob [a date in] 2006 and now aged eight), PB (dob [a date in] 2007 now aged six) and AL (dob [a date in] 2013 now aged 15 months). The mother of all of the children was EB but she very sadly died on [a date in] 2013.
The father of MB is AW. He is represented in these proceedings by Ms Burns. The father of PB and AL is LL. He is represented at this hearing by Mr Dennett.
AW has played a role in these proceedings but does not have a relationship with MB, having only met him once, and he is not having contact with him at this time. It has been agreed between the parties that whatever my decision on the matters in dispute at this hearing, I should make a parental responsibility order in favour of AW to ensure that he has an on-going role in MB’s life; EB’s death resulting in there being no person other than the local authority holding parental responsibility for MB. However, AW has failed to attend this hearing on any of the four listed days and this has led me to question his commitment to MB. I will consider his application for parental responsibility following delivery of this judgment.
After the death of EB, three family members were made parties to these proceedings, as they wanted to be assessed to care for the children. The first is the maternal grandmother, AB, who has a residence order in respect of EB's older daughter, L, who is aged 11. Also living in that household is a maternal aunt, LG, (dob [a date in] 1995). The other new parties were the maternal great grandparents, who I shall refer to collectively as GGPs and individually as GGF and GGM.
The applications before me today are for care orders in respect of all three children and, in respect of AL, for a placement order. All three children are in foster care and have been since 18^th July 2013. Interim care orders were first made on 12 August 2013 and have been regularly renewed ever since. During the proceedings, the children have had contact with LL and GGPs and, on a more limited basis with AB.

Background

I am only going to deal briefly with the matters that led to the local authority becoming involved, as this history is not, in fact, key to the decisions I have to make today. MB and PB had been the subjects of child protection plans since July 2012 and AL since January 2013. There were concerns regarding domestic abuse in the mother's relationship with her then partner and about the children being exposed to drug and alcohol misuse. This issue of domestic abuse has to be put in the context of the mother having formed relationships with other violent men in the past. AW has convictions for violence and there were domestic violence incidents between the mother and LL. There were concerns that the children were experiencing neglect as they had missed health appointments and had poor school attendance. There were also concerns about very poor conditions in the home. Indeed, the conditions were so bad on 18 July 2013 that the children were removed from their mother's care. At that time there were no family options for the care of the children so they were placed with agency foster carers.
The social work recording of the visit to the home on 18^th July, taken from page B7 of the bundle, reads as follows:

“On 18 July 2013 I visited the family home and upon arrival I peered through the living room window with my colleague, Julie Ellis, social work assistant. I saw baby AL lying on the sofa unsupervised and there was a dog (believed to be a prohibited species) in the kitchen. When we knocked on the door the dog came over to the window and started barking. Julie and I continued to knock on the door for about four minutes before EB came to open the door. There was no adult in the living room with AL. EB said that she was upstairs assisting PB and MB to get ready for school.

When Julia and I entered the house, there was a strong smell of cannabis and there was clutter on the floor and the room was generally untidy. The smell of cannabis and urine was so overpowering the Julie and I requested the back door and front doors were left open as AL was in the living room where no windows were open and the temperature outdoors was 26°. The house had bluebottle flies flying around and these had to be wafted away from ourselves and the baby. In the kitchen we found a motorcycle and 2 motorcycle tyres on the floor. The kitchen environment was very dirty and there were dishes and clutter everywhere on the worktops and the floors and there were no clean surfaces to prepare food. The sink was full of dirty pots and pans. Julie Ellis asked EB if she had food and she showed her the freezer which contained a selection of food……. EB was asked why her home was in such a state and she told us she had been unwell for the past few days and initially had been having seizures”.

At paragraph 25 on page B8 the bundle the social worker, Ms Vanance, records “Julia and I asked to go to the children's bedroom to check what the children were doing. When we entered the room we found MB standing in the middle of his room. MB was already dressed in his school uniform however it was dirty. PB was standing on the edge of her bed with a dirty white top and she told us she was getting ready……. While in the room we observed the beds did not have any bedcovers on and the mattresses were wet and soaked with urine. The duvets were wet and stained and the smell coming from the children's bedroom was very offensive. We went to the bathroom and there was a pile of washing which was there since Friday 12th of July 2013, when I did a home visit. The bathroom was in a very poor state. The toilet was not cleaned. Excrement and rubbish was on the floor”
The statement then describes the room that the mother shared with AL that was in an unacceptable condition. There were bags of dirty nappies, clothes thrown all over the floor. Mouldy food in takeaway cartons and the room had a strong smell of cannabis. The social worker decided that the children could not remain at home with it in this condition and called at the police. The police exercise their powers of protection under section 46 of the Children Act 1989 and the children were removed to foster care.
It is appropriate to observe that during this period when Miss Venance was in the home, the mother called her partner, LH, who attended the property and was abusive to the social work staff. He was seen to remove drugs from the property, the mother said he had been keeping at her house for a friend of his. LH also threatened the social worker with his dog.
The local authority carried out assessments of the mother and LH. The conclusion of the assessment was negative and the local authority's position was that the children should not be returned to EB’s care. Sadly though, as I have said, the mother died in early December 2013 as a result of being attacked by the dog. Given the mother's death, there is no reason to go into these matters any further detail. The threshold criteria pursuant to section 31(2) Children Act 1989 has been agreed by the parties in the following terms:

“At the time that protective measures were taken, the children were suffering significant harm. The harm was the result of exposure to domestic violence, illicit drug and alcohol abuse by EB, uninhabitable home conditions, missed health appointments and poor school attendance. The harm was attributable to the care given to the children, that care not being what it would be reasonable to expect a parent to give them”.

Turning then to the other family members, at the start of care proceedings the local authority did not have contact details for AW. When AW was located, he asked to be assessed to care for MB. An assessment was undertaken and this appears at C65 of the bundle. The assessment of him and his partner was not positive and he has not sought to challenge this before me, although he does wish to have contact with MB in the future.
The father of the younger two children, LL, also participated in a parenting assessment. That is found at C128 of the bundle. Positives were noted but there were also significant concerns and the local authority’s position is that the children should not be placed in his care. LL does not seek to challenge this although, like AW, he wishes to remain involved in the lives of his children and of MB, who he treated as his own child throughout his relationship with the mother.
Assessments were carried out in respect of extended family members. Some approaches were made to family members who had been put forward by the parents to be assessed but who then decided that they were not able to care for the children. A viability assessment of the maternal grandmother and LG, dated 9th September 2013, did not recommend that a full kinship assessment be undertaken and this recommendation was not challenged at that time. Since the plan for the children became clear and the local authority has recommended that AL be placed for adoption, the maternal grandmother has been made a party to the proceedings and seeks to challenge the assessment, as she does not want AL to be adopted. An addendum assessment was undertaken, dated 16^th January 2014, that concluded that AB and LG could not provide good enough care for AL.
Also, once the plan for adoption became clear to the maternal great-grandfather and his wife, they asked to be assessed in respect of AL. They had been approached in July 2013 when the children were first accommodated. I accept what GGF said in his evidence that he and his wife were somewhat taken by surprise that the children were being removed and at the sudden request to look-after them. At the time, GGF said that they could not care for the children. I make it clear now that I do not treat that early refusal as having a negative impact on the case they now argue. It is clear to me that the GGPs very much want to provide care for AL and have pursued that wish in these proceedings. Indeed, they are funding their own representation before me to ensure that their case is fully argued.
The assessment of the GGPs was undertaken by the social worker, Paula Steel and appears at C163 of the bundle. The GGPs were joined as parties to these proceedings by the order of 13^th January 2014.

Issues to be Determined

The key issue for me to determine is where each of the children should spend their childhoods. Central that had been the question of whether they could remain together. The local authority's plan for MB and PB is not opposed by any party. The local authority proposes that they should remain living with their current foster carer and be the subjects of care orders. It is also agreed that they should have ongoing contact with family members.
The local authority's plans in respect of contact have evolved over time. It is proposed that contact between MB and PB with LL should reduce gradually to monthly contact and then remain at that level, subject to ongoing review. MB does not as yet know he has a different father to his sister and dealing with that information will now be more complex for him given the recent loss of his mother. The local authority's plan is that life story work will be carried out with MB, as and when he is able to do this, and that his relationship with AW would be addressed in that context. Appropriate letterbox contact could then start, followed by direct contact in due course. In respect of contact between MB, PB and their extended maternal family, the proposal is for contact to take place seven times a year and that overnight contact with the maternal great grandparents occurs for 1 night at these times. It is proposed that two of the contacts take place in the school summer holidays. The plan involves AB, the children's older sister L, their aunt, LG, and her daughter, A, joining in a family activity during each of these contact sessions.
The local authority's plan for AL is for her to be adopted. That obviously means her losing her relationship with her brother and sisters, as well as with her father and extended family. It is proposed that there should be one direct contact session each year between the children if AL's adopters agree. That would be facilitated and attended by the maternal great grandparents. The local authority's plans are supported in their entirety by the guardian. He agrees with the social worker that it is better to separate AL from her siblings and place her for adoption than it is to attempt a family placement with the GGPs.
The family members, including the two fathers, to a great extent have all taken the same position. Their consensus was that the children should be together in foster care but, if that is not achievable, then the maternal great grandparents should care for AL under a residence order. The maternal grandmother says if they cannot care with her support, she seeks to care for her granddaughter herself. However, when she gave her oral evidence to me she accepted that she is not currently in a position to provide care for AL and, in his closing submissions, Mr Hookway did not seek to persuade me that AB should be considered as a carer for AL at this time.
This matter was originally listed for final hearing on 26^th March 2014 but was adjourned to this hearing to ensure that the position of the current foster carers was fully investigated and accurately reported to the court. At times, the foster carers had said that they would offer to care for AL for the long-term but they did not want to seek adoption or special guardianship orders. A statement from Clare Rogers, the social worker allocated to the foster carers, appears at B64 of the bundle. At B65, there is a summary of a meeting with the foster carers that took place on 26.03.2014. The note reads as follows:

“discussion by Claire Rogers with Karen and Martin. They have been working with a plan for adoption for AL and confirm that they feel this is the best option for her. After thorough consideration and taking into account their own ages (Karen is 49 years old and Martin 50 years old) they believe they could not offer a long-term placement to AL and will work with Leeds local authority’s plan of adoption. They believe they can offer a long, stable and nurturing environment to MB and PB which meets their physical and emotional needs”.

Given that the current foster carer is not offering to care for AL, the position taken by the family members at the start of this hearing was that their first choice would be for MB and PB to remain with the foster carers and for AL to be placed with the great grandparents. The second choice would be for MB and PB to remain with the Foster carers and for AL to be placed with the maternal grandmother. The 3^rd choice would be for the 3 children to be placed together in a different foster placement. As I have said, AB is not now pursuing a case that AL should be placed with her and no advocate has pressed a case for the children to be placed in a new foster placement.
I heard oral evidence from Paula Steele, the current social worker. She was clear and consistent in her oral evidence. When addressing MB’s needs, she told me he has a good relationship with the foster carer. She said that he had experienced bad neglect and had provided care to other children. She that his experiences have caused him to have additional needs and he can be demanding of attention from his carers. She said he can push the foster carers away and he can get jealous of AL. He thinks that AL was favoured by his mother and asked the foster carers if she is also their favourite. It is the local authority’s intention that MB will receive therapeutic support and lifestory work to understand his experiences and also to advise as to introducing AW into MB’s life. Ms Steele told me that MB is aware that he has a different father but how real this is for him is not clear, as LL has always been the father figure for him.
Concerning PB, Ms Steele told me that PB has similar issues to MB. She does demand attention but behaviour is not so problematic as MB.

In her oral evidence, Ms Steele sought to portray AL as a child with additional needs and, on a number of occasions, said that she would require better than good enough care. This was challenged during cross-examination and it became clear that Ms Steele’s views concerned the future emotional needs of AL. Her concerns were not that AL will recall or will suffer any on-going physical consequences of the period of neglect that she experienced when at home for the first 6 months of her life. The issue for Ms Steele is that AL will require support in the future, particularly in her adolescence, to address emotional problems that may arise due to the death of her mother and her separation from her siblings. In his oral evidence the Guardian raised his concern that there may be some lasting impact on AL of the physical and emotional neglect that she experienced when in the care of her mother. However, he accepted that there has not been any indication of difficulty during the period that AL has spent in foster care.

I accept that these are matters that need thought and to which carers must be alive but I am not persuaded that it is right to describe AL as a child who needs better than good enough care. She will need to be treated with sensitivity and understanding when her past is discussed but in my judgment, any child would need similarly sensitive treatment on any number of issues that can arise during childhood and adolescence. Good enough parenting includes accessing advice and support for your child when it is needed and, in my judgment, social care or health services would be able to offer advice to whoever is caring for AL at the time that she may require such advice and support. Given that AL is just 1 year old, I do not approach the competing applications before me on the basis that AL will need an enhanced standard of care beyond that I would expect a carer to give to any child.
Ms Steele was clear in her evidence that moving MB and PB to a different foster placement that would accept all 3 children was contrary to the best interests of MB, PB and AL. MB and PB are settled in their current placement. Ms Steele told me that she thought that the local authority would have difficulty in finding a long-term foster placement that could meets the needs of the children together. It is her view that the experiences of the children and the support that they will require might lead to placement breakdown so there was no guarantee that the children would remain together. It is Ms Steele’s opinion that AL is a child who will be easy to place for adoption and that an adoptive placement provides her with the best opportunity for a secure and settled future. She did not accept that it would be in AL’s interests to be in long-term foster care as she would remain a looked-after child and have a corporate parent for the rest of her minority. She said that foster placements can never be guaranteed to be permanent.
Ms Steele maintained the views about AB that she set out in her assessment at C154. She is of the opinion that MGM lives a chaotic lifestyle and is not able to protect AL from harm and that the safeguarding concerns for L and the local authority involvement with LG and A preclude AB and LG as potential carers for AL. Ms Steele accepted that AB had not been assessed as a support for the GGPs but she is of the view that any support for the GGPs would need to be immediately available if they caring for AL as the GGPs may fall ill or be otherwise unable to care for AL at any moment.
Concerning the possibility of care by GGPs, Ms Steele said that GGPs are of an age when they would not be able to provide care for AL for the whole of her childhood. She said that they do not have additional family support to help them with AL and their care for her would be likely to end when she reached her teenage years and this is likely to be the most challenging time for AL. She said that the local authority could provide respite and nursery care but this would not address the issues she has with the GGPs as her concerns are long term and not immediate. Parenting courses are not required, as they would not address her concerns. She told me that potentially the GGPs would have been a possibility if there were other family members who could have supported them in the long term and into the future. She said that there were no other family members to take over and this excluded them as appropriate carers for AL.
When cross-examined, Ms Steele told me the GGPs have the understanding to bring up AL, they have a suitable home, are in good health and are active for their ages. She accepted that if any grandparent was likely to be successful brining up a baby, it would be these GGPs. She accepted that the GGPs have a stable relationship and that adoption cannot be guaranteed as stable. Ms Steele is of the view that adoption is more likely to provide AL with the long-term care that she requires. Whatever the court’s decision for AL, Ms Steele accepted that the local authority would consider the GGPs having extended periods of holiday contact with MB and PB but that these decisions would be made during the looked after child review process.
Ms Steele accepted that AB and LG were cooperating with the Common Assessment Framework that is in place to provide support for their care of L and A. She also accepted that, despite her view that a recent incident of domestic abuse in the relationship between DG and his partner RQ, the local authority is not involved in any safeguarding intervention concerning their children. DG is a maternal uncle of AL and was put forward by GGPs as a support to them and as potential alternative carers for AL in the longer term should the GGPs fall ill and be unable to provide care. During the assessment of the GGPs, the local authority learned that DG had assaulted RQ and caused her a black eye. This incident is said to have started when RQ challenged DG for shouting at their baby. I understand that DG and RQ separated for a short period but have now reconciled. Ms Steele did not accept that it would be appropriate for the GGPs to rely for support on a couple that have domestic violence in their relationship, particularly given that MB, PB and AL suffered significant harm by exposure to the domestic abuse in the relations between their mother and her partners. Ms Steele told me that DG and RQ have not sought to challenge her assessment of them and have not requested any contact with AL. Ms Steele has taken the view that the local authority could not work with DG and RQ as they did not disclose to her the existence of the domestic violence in their relationship. She told me that they were asked directly about domestic abuse and that they lied to her. She does not believe that they can be relied upon to work openly and honestly with the local authority.
When cross-examined on behalf of the guardian, Ms Steele relied upon the views expressed by the current foster carers that they, being in their early 50s, were too old to provide long-term care for AL. She also said that the views that she expressed in her assessment about AB had not changed and that AB and LG both have their own needs that lead them to rely on support given to them by the GGPs. My impression of this evidence was that Ms Steele thinks that it is not realistic for AB to be relied upon as a support for GGPs when, in fact, the GGPs have to support her.
I then heard evidence from GGF. He has filed a statement dated 11^th March 2014, that appears at page B55 of the bundle. In his statement he sets out the relationship that he and his wife had with the children’s mother and how she had, as her lifestyle deteriorated, distanced herself from him. He says that they were not aware of the concerns that the local authority had about the children’s welfare. That statement was not been challenged by the local authority when he gave his oral evidence and, having heard the GGF give his evidence, I am entirely satisfied that had he been aware of the poor parenting that his great-grandchildren were receiving, he would have sought to intervene. In his statement GGF sets out that he and his wife married in 1987. GGM is the step-great grandmother as she is not related by blood to the children in these proceedings but she has known them all their lives, treated them as her own great-grandchildren and they have seen her as their great-grandmother. Throughout this judgment I shall refer to her as the GGM as it is, in my judgment, important to properly reflect the importance of her role in this family and the absence of any genetic connection with these children is entirely immaterial to my decision.
GGF is 71 years old, having been born on 6^th July 1942. GGM is 69 years old, having been born on 1^st July 1944. They are active and in good health. They both belong to a walking club. GGF plays golf 3 times per week. GGM attends the gym twice per week and swims twice per week, once with 2 of the other great-grandchildren. GGF’s mother lived until she was 89 years of age and GGF told me that he has no health difficulties. His mother did suffer from angina so his doctor has recommended that he takes statins as a precautionary measure, although he has not suffered from any heart difficulties himself. He does suffer from arthritis and has had 2 partial knee replacements but he has recovered well and it is clear from observing him in court that he has no mobility difficulties. GGM told me that she has no medical difficulties. She takes medication to maintain good bone density and has occasional IBS but suffers from no medical problems of any significance and she lives a full and active life.
At paragraph 11 of his statement at B58, GGF states “we were asked if we could take on all three of the children but given our age we did not believe that we could manage the care of all three of them”. He continues at the next paragraph “it was never suggested to us that we care for AL on her own and had we known at that stage that there was a prospect of her being adopted then of course we would have agreed to take her on”. I listened carefully to GGF’s oral evidence. He does not, in my judgment, underestimate the task that he seeks to persuade me that he is able to take on. MB and PB are older and the impact on them of the harm they suffered in the care of their mother is visible in their behaviour. They require an enhanced level of care to ensure that they reach their full potential. The observations of MB and PB during these proceedings and the recommendations now made by the local authority serve to demonstrate that the GGPs were correct in their assessment that they would not have managed the care of all 3 children.
What is striking about the oral evidence that I have heard, is that no party seeks to argue that the GGPs cannot meet all of AL’s needs at this time. In the assessment at C179, Ms Steele states “GGF and GGM at present have no significant health conditions. GGF is currently prescribed preventative medication in respect of his heart and has had two half-knee replacements. GGF and GGM report that they are currently fit and active and feel that they would be able to meet AL’s needs to good standard at this time. The assessment session is evidence that GGF and GGM have a good understanding of the needs of AL and have thought practically about how their lifestyle would change should AL be placed in their care. GGF and GGM are part of AL’s birth family and have a good understanding of her family history. Through the current proceedings, GGF and GGM have gained an understanding of AL’s early life experiences and would be able to promote contact between AL and her siblings and any other appropriate family members. GGM has experience in bereavement counselling and advises that this would assist her in helping AL to understand and deal with her mother's death as she grows older’.
Throughout the oral evidence of the GGF, he demonstrated a clear understanding of the needs of AL and of the other children. Many of his answers to the questions put to him were entirely child-focused. An example was where he reviewed his position about the level of contact that he would like with MB and PB. In his answer he said “In practical terms, what it says in the care plan is about right. We had thought about monthly contact but taking into account contact the children will have with their father, whilst we might want to see them more often, it is probably too much for the children”. This answer demonstrated to me that GGF is a man who puts the needs of the children before his own wishes. When he was asked about when he thought L might be able to considered as a support in caring for AL, it was put to him that it would be at least 6 years before she could be relied upon. His response was that he thought it would be longer than that.
Later in his evidence he told me that he expected that AL would have no memory of her mother so he and GGM have started what he described as a memory box for her. This was not done on the advice of the local authority but is something that the GGPs thought that they should do for AL so that she has some things of her mother’s for when she is older and asks questions about her. The GGPs knew her mother well and will be able to answer any questions that she has but GGF said that they have prepared the memory box in case AL is placed away from the family and having a memory box will be very helpful for her in understanding, in real terms, about her mother and birth family.
I have heard a significant amount of evidence about the support that the GGPs provide to other members of the family. GGM told me that she has in the past helped AB with the washing and helped her out in the house. Both GGPs help with all of their great-grandchildren. They are seen as the strong people in the family. Strong emotionally, practically and financially. GGF retired aged 50 after 34 years working for British Telecom. He has, in my finding, used much of his time during his retirement to support his family. He has a son who has, from a young age, had special needs and he lives in residential care. The GGPs are committed to continuing to support him by taking him out every 2 or 3 weeks. GGM’s mother is still alive at the age of 92. She lives in residential care but is still very alert and GGM visits her frequently and speaks to her every day. She is committed to maintaining her relationship with and support of her mother.
AB’s son, PB, is currently living with GGPs. I have heard that PB left school aged 15 and has lived a nomadic and reclusive lifestyle ever since. He has spent some time with AB but was mainly based at EB’s home. That arrangement broke down when EB’s partner, LH, moved in and PB did not like all the comings and goings that this relationship produced. He left EB’s home and was homeless for a period. The GGPs have taken him in, are trying to get his benefits sorted out so that PB has some money and is able then to look for his own accommodation. I asked AB why Paul was not living with her. Eventually, she said that PB could not live with her as she and LG were on benefits and PB could not live with them if he was not making a financial contribution. I found this answer to be deeply unimpressive, particularly given the evidence that I heard that PB left her care aged 15 and has had to rely on the generosity of others ever since.
When GGF and GGM gave their oral evidence, they were both very clear that they would give up their leisure pursuits to ensure that they are able to provide the care that AL will need. I accept what they said to me about this. I also find that they are currently in good health and are able to meet all of AL’s physical and emotional needs. They both drive and have their own cars so the physical moving around that would come with having the care of a young child will be manageable for them.
I have taken into account the commitments that GGF and GGM have to other members of the family. GGF told me that if AL was placed with them, he would if necessary, ask PB to leave the home. They both told me that they accepted that they would have to make adjustments to their lifestyles if AL was placed with them and, in my judgment, they are now both clear, if they were not before, that those adjustments may have to include providing less support to AB and LG so that they have enough time, and more importantly energy, to meet the needs of AL should she be placed with them. I am entirely satisfied that the GGPs would make such adjustments to their lifestyles as were necessary to ensure that they were able to meet AL’s needs and I do not approach my assessment of them as potential carers for AL from the basis that they are too overburdened to manage. On the contrary, in my finding they are people with a strong sense of family duty and that is to be applauded. However, they are both wise enough to know that a young baby will require more of their time and attention than the adults that they have supported up until now. Indeed, it might be said that it would be a benefit to the adult members of the family to begin to take more responsibility for themselves and a withdrawal of support by the GGPs would, in my judgment, do them some good.
It is clear from what I have said that I find these GGPs to entirely capable and suitable carers for AL save for one issue. That issue is their age. This is addressed by Ms Steele in her assessment of them at C181 where she states “it is accepted at the present time GGF and GGM report no significant health difficulties and are generally fit and well. While this is the case it is likely that they would provide AL with a good level of care. However it must be acknowledged that they are likely to develop age-related health issues within the duration of AL’s childhood and accordingly may not be able to sustain the level of care and interaction that they would intend to provide her with”. At C182, Miss Steele expresses the concern “that should AL be placed with GGM and GGF she is likely to experience a further loss of her primary carer before reaching independence. GGF and GGM have a limited support network which consists of friends in respect of day-to-day support and family members for supporting caring for AL. While they may have appropriate short-term support, there are concerns raised regarding the longer term care of AL……... Without an appropriate support network to take over the care of AL in the event that GGPs are no longer able to meet her needs, it is the view of the local authority that further assessment should not be progressed”.
It was the recommendation of this report, that there be no full parenting assessment undertaken of the GGPs. It is clear from the written evidence of the local authority and from the oral evidence of Miss Steele, that the local authority were not taking an approach that precluded the GGPs as carers based solely on their age. The local authority were prepared to consider AL being placed with GGPs if it was possible for there to be appropriate support and alternative care in place to provide a fairly seamless transition of care when, as is inevitable, the increasing age of the GGPs results in them being unable to provide the care that AL requires.
In the oral evidence that I heard from the Guardian, he took an identical approach. He was not saying that it would be against AL’s best interests for her to be placed with GGPs if the family and friends network was able to provide the care that AL required as the GGPs aged.
It is important to highlight the positions taken by the local authority and the Guardian when considering the case put by the great-grandparents as it demonstrates that the assessment of the great-grandparents was approached with an open mind and, perhaps more importantly, it was not being suggested that the fact that AL would have to experience a transfer of care at some point later in her childhood of itself precluded a placement with these great-grandparents.
So, what of the support plan being put forward by the GGPs? The GGPs were joined as parties to the proceedings on 13 January 2014. They acknowledged that their age may be an inhibitor to their ability to provide for AL into adult life and they proposed that the mother's brother DG and his partner RQ would support them in their care for AL and would become permanent carers in the event that the GGPs were unable to provide care in the future.
DG is 23 years of age and works full time in a business that supplies car parts. RQ is also 23 and she cares for their daughter, E, who was born on 21^st October 2010 and is now aged 3 ½. RQ is pregnant with her second child, a boy, expected in August of this year. I say her second child as DG has an older daughter, M. DG was unable to give me M’s date of birth, her age or even identify her birthday. Ms Steele met with DG and RQ as part of her assessment of GGPs. She asked about their relationship and specifically asked whether there was any domestic violence and was told that there was not. At page C175, Ms Steele sets out information that she discovered about DG. In summary a referral was made to children's services by the police on 1 October 2010 because DG had been arguing with his mother regarding the sale of a computer console which had become heated. DG had left the area but had then returned and was arrested by the police to prevent a breach of the peace. The recording states that E was present at the time of this altercation. The second issue raised by Ms Steele concerns DG’s father. Prior to her death, EB made allegations that she had been sexually abused by DG’s father. These allegations were discussed with DG and RQ and they entered into a written agreement with the local authority promising not to allow any unsupervised contact between E and DG’s father, even though DG did not believe the allegations to be true.
On 25 July 2013 the local authority received a referral from a friend of RQ. The recording at C175 reads as follows: “the request detailed that DG and RQ had separated and RQ could not get him out of the house. It is stated that DG had been violent to RQ on a number of occasions and had given her a blackeye when she had challenged him about telling E to "shut the Fuck up". It was also alleged that DG had been unfaithful to RQ and that she had found messages to a girl that she believed to be aged 14 suggesting that they had had a sexual encounter. At this time RQ was spoken to in an office visit and confirmed this information to be true. RQ advised that she was moving back down south near her family and that the relationship had ended”.
In his statement filed for this hearing, GGF states, at §15 on B58 “we were unaware of the extent of the problems in the relationship between DG and RQ. We knew that he had some problems when he was younger but thought that he had outgrown them. We accept that we cannot put him forward as a significant source of support at this stage". When he gave his oral evidence it was clear that GGF was still relying on DG and RQ as a potential source of support and as prospective permanent carers for AL. On that basis, and in furtherance of my inquisitorial function at this hearing. I invited Ms Ledbetter to call DG and RQ as witnesses.
When he gave his oral evidence, DG accepted that he had had anger problems and he accepted that he still had difficulty controlling his anger. He said that he had been on an anger management course at school and when he argued with RQ he would leave the house rather that let his temper get the better of him. He was rightly proud of his work record and that he had achieved promotion at work, doubling his income and helping him meet the needs of his growing family. However, I was concerned by his attitude towards the use of violence. He said that he had hit RQ as he had become paranoid that people were talking about him when they were out drinking. It was clear from what he said that, although also drunk, RQ was trying to reassure him that people were not talking about him. DG was not able to accept what was said as reassurance. He saw it as critical as RQ told him to stop being stupid. He punched her in the face with his fist. He said that when he saw her in the morning he felt ashamed and now they talk through their problems and he would never do it again. He told me that he has stopped drinking and that he is prepared to engage in anger management work, although he has not taken any steps to find any therapy himself.
Throughout his evidence he said such things as “she was riling me up” or she was “pushing my buttons”. He even said it was a natural human reaction to lash out. My concern about his minimisation of past events became firmer when he was asked about the events of October 2010 when he did, on the evidence given by AB, assault her during the course of a fight with LL. DG said that he could not remember hitting his mother. He accepted that there were times that he fought with LL but could not recall hitting his mother. I reject that account. I find it inconceivable that any son would not remember hitting his mother, unless there had been a number of occasions when he had used violence towards her. Indeed, AB said in her evidence that DG had hit her when he was a child.
I have reached the conclusion that the use of violence is a feature of how DG manages conflict. It may well be that he has not used violence against RQ a second time. She did not ask him to leave when he did. She only asked him to go when she found out that he had been unfaithful. This does not fill me with confidence that she would end the relationship if he again used violence.
I accept that the local authority has not sought to intervene in DG and RQ’s family life in any way. The local authority has reached the conclusion that they are providing good-enough care to E at this time. However, I share the concerns of Ms Steele and the Guardian that the birth of a new baby will bring additional stresses to the relationship. I do not agree with Ms Ledbetter’s submission that the birth of a new baby is necessarily likely to bring this couple closer together. I hope that it does but the birth of their son with bring a lack of sleep, additional financial demands and may well raise the level of stress beyond that which DG is capable of managing. Ms Ledbetter accepts that this couple have some way to go before they could be considered as appropriate alternative carers for AL. I agree with that assessment. What Ms Ledbetter says is that there is the time for them to make the changes necessary, as it will not be for some time yet that they will be needed as back-up carers for AL. I will return to that submission later.
In his oral evidence, GGF also presented LG as a potential support and alternative carer for AL. He did not promote AB as a suitable option but as LG and AB live together in the one home it is, at this time, not realistic to consider them separately, particularly as LG said she has no intention of moving out.
In the home of AB, LG resides with her daughter A who is now 3 years old. EB’s eldest daughter, L ,lives at the home under a residence order to AB. L is 11 years old. LG’s care of A has attracted some attention by the family nursing team and a Common Assessment Framework is in place, with the family nurse as the lead professional, to ensure that A’s needs are met and LG is supported in her care for A.
It is right to say that there have been concerns about the condition of the home for some time. There has been a persisting damp problem that has resulted in some rooms becoming uninhabitable. AB told me that she has raised this with the private landlord but repairs have not been made. I asked AB about whether she had any rent arrears. Initially she said there were not but then accepted that there were arrears due to her housing benefit claim not being paid for a period. Given that this is private rented housing, there is no loss of a precious secure social housing tenancy to consider and it is very surprising that AB has allowed such poor conditions to continue rather than taking steps to find and obtain alternative accommodation. I gained a clear understanding of why nothing had been done when I heard about the issue with A sleeping in LG’s bed rather than in her cot. LG was advised by the nurse that A should not sleep with her in the bed. LG’s reason for failing to follow this advice was that the cot was in a damp room and had been damaged by the damp. LG needed an alun key to take the cot apart and move it to another room. In her oral evidence, I was told that it took AB and LG over a month to move the cot from one room to another. I was also told that the house was very cluttered. AB accepts that the house is cluttered and blames L and LG for being hoarders. On a number of occasions she said she needed to sort things out and get old baby clothes or teddy bears moved or sold. What was surprising was the ease with which AB agreed that it would not be appropriate for AL to live with her due to these issues. There was absolutely no hint that AB was motivated to sort out these issues, that in my judgment are easy to address, to enable her to run a case that her granddaughter could be in her care.
I found that AB was all to ready to rely on others to do things for her. I could establish no obvious reason why AB could not do her own shopping or tidy her own house. She said she had too many clothes and not enough cupboards and this explained why there were clothes everywhere. If she has too much clutter to provide an appropriate environment for her granddaughter, then she should be getting rid of the ‘stuff’ that is taking up space in the house. None of these task are complicated. The problem, as is seen in many such cases before the court, is that there is a total lack of motivation to do anything that requires any effort. I was told that AB has various health issues and, in her oral evidence, LG listed a number of health problems of her own but neither has any obvious mobility problem. LG accepts that she is able to go out and see friends. Both women have the capability to make changes but they lack the desire to do it. It is my concern that LG has adopted her mother’s approach to life and that anything that requires a bit of effort is avoided. She needs to get out of this bad habit while she can. She is still very young and there will many opportunities that she will miss if she does not change her approach to life.
The assessments of AB and LG are clear, and essentially not challenged. I agree with Ms Steele that AB and LG have a co-dependent relationship. I am not persuaded that AB has lived a particularly transient lifestyle or that she has a propensity to form relationships with risky men. There is currently no suggestion that she is in a relationship. My main concern is that if AB or LG are to be seen as supports for GGPs in their care of AL, they will need to show initiative to offer help when it might not have been asked for, the ability to pop round or go out into town when AL or GGPs need them too, the motivation and desire to clean up after AL or the other children and the motivation to attend to absolutely any need that may arise. On the evidence that I have heard and read, and given that AB and LG have shown no motivation to improve their immediate environment, I find it unlikely that they would have the motivation necessary to attend to any needs that the GGPs and AL and have. There is no evidence that AB or LG have offered support to GGPs in the past as this has never been required. However, I accept the local authority’s submission that AB’s answer to a question about what she would do to help GGF telling. She was asked what support she could offer and she said that if GGF needed her he could come and collect her. Placing a further burden on him rather than putting herself out and getting herself over there.
As matters stand today, I find that DG and RQ, and, AB and LG are not carers or sources of support that the GGPs could rely upon in assisting to meet AL’s needs. I have considered that the local authority has not thought it necessary to take any action to safeguard L or A or E but for the reasons I have given, both homes have challenges and needs of their own and I am persuaded by the local authority’s submissions that an additional burden on them is not likely to be managed.
As I have already said, it is not today that support is required. The GGPs are in perfectly good health and are able to meet AL’s needs. But, that capability is going to diminish. I do not know when it will diminish, whether it will be sudden or whether it would be over a prolonged period but it is certain that there will be a change. Ms Mason fairly accepted that AL may well have 10 years or so in the care of the GGPs before significant changes to the care arrangements have to be made. Both GGF and GGM have seen their own parents age through their 80s. Whilst GGF said that his mother wallowed in her ill health, I don’t believe that either GGF or GGM would expect to be caring for AL though into their mid to late 80s. AL care needs will change as she gets older and into her teenage years, and whilst the needs of an older child may be less physically demanding, she is in my judgment likely to have needs such as help with her education, help with technology, advice on relationships, transportation to and from activities and other such matters that some, will by then, be beyond the capabilities of the GGPs. It is for this reason that the identification of alternative care and sources of support is so important.
There is a one important dispute between the 2 sides of this case that I have not yet mentioned. It is the submission of the local authority and of the guardian that, although I might reach a conclusion that the GGPs are thoroughly reliable people, I must not determine this case on the basis that they can be trusted to make appropriate arrangements for AL at the time that alternative care is required.
When the Guardian gave his oral evidence, he listened carefully to the questions put to him and carefully considered his responses. He was in no way dogmatic and he accepted the pros and cons of each option. He told me that he thought that the GGPs will be unable to look after AL or AL may have to look after them. He said that AL has the opportunity to be placed with carers who can properly and fully meet her needs through her childhood and beyond and this is overwhelmingly in her best interests. Concerning the proposal made by the GGPs, the Guardian said that “AL would experience predictable further losses and disruption and there is considerable uncertainty about what her future life would be”.
I accept that there is uncertainty about her future life and that she will suffer predictable losses but uncertainty and loss are features of both of the competing cases that are put before me.
The advocates have referred me to a number of authorities as providing guidance in how I should approach my decision-making in this case. I have been referred to Re BS (Children) [2013] EWCA Civ 1146. In quoting from Re C and B [2001] 1 FLR 611, the judgment in BS states “intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child". The judgment continues to quote from YC v UK [2012] 55 EHRR 967 at para 134 and states “family ties may only be severed in very exceptional circumstances and……. everything must be done to preserve personal relations and, where appropriate, to rebuild the family. It is not enough to show that the child could be placed in a more beneficial environment for his upbringing".
When referring to the judgement of Supreme Court in Re B, the President says “the language used in Re B is striking. Different words and phrases are used but the message is clear. Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course is possible in the child's interests", they are "the most extreme option", a "last resort when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do".
At paragraph 27 of Re BS, the President states “the court must consider all the options before coming to a decision. As Lady Hale said (paragraph 198) it is necessary to explore and attempt alternative solutions. What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to making an adoption order at the other. In between, there may be orders providing for the return of the child to the parent’s care with the support of the family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or special guardianship order or in a foster placement and a care order; or the child may be placed with someone else, again under a residence order or special guardianship order or in a foster placement under the care order. This is not an exhaustive list of the possibilities; wardship is another, as are placements in specialist residential or healthcare settings. Yet it can be seen that the possible list of options is long."
One of the requirements of the judgment in BS is for the local authority to provide the court with proper evidence that addresses all the options that are realistically possible as an outcome in the proceedings. This judgment has led to local authorities and guardians presenting what is often called a ‘balance sheet’ of the advantages and disadvantages to the child of each placement option. I have carefully considered the analyses provided by the social worker and the guardian in their written evidence. I have carefully noted the analysis provided by Ms Steele in her oral evidence and the contrary views outlined by the advocates for the family in their oral submissions. I have read all the papers in volume 1 of the court bundle and those documents in volume 2 that have been drawn to my attention.
In the case of Re G (A Child) [2013] EWCA Civ 965, Lord Justice McFarlane, at paragraph 49 stated "in most childcare cases a choice will fall 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, in my view, is not apt where the judicial exercise is to undertake a global, holistic evaluation of each of the options available for child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare”.
In Re C (A child)(care and placement order: special guardianship order) [2013] EWCA Civ 1257, McFarlane LJ stated, at paragraph 29. “Where the court is seized of both an application for a care order an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of "approving a care plan for adoption" by reference only to the Children Act 1989 section 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is however a practice which may inadvertently lead the court away from engaging with the proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of the Adoption and Children Act 2002 section 1 rather than the Children Act 1989 section 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter), he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve the care plan for adoption where such a plan seems likely to meet the welfare requirements of the Adoption and Children Act 2002 section 1 and section 52.
Miss Mason has referred me to the case of W and H [2013] EWCA Civ 1177. The passage that she relies upon from this decision places the same emphasis on the welfare checklist in the Adoption and Children Act 2002 as being the appropriate factors for me to consider when deciding AL’s future care.
I have also been provided with a copy of Re C (Family Placement) [2009] EWCA Civ 72. I'm very grateful to Miss McCallum who has produced this authority in line with her duty to bring all relevant matters to the attention of the court, even though this decision could be seen as supporting a position that is contrary to the position taken by her client. This case concerns an appeal from a decision of His Honour Judge O'Dwyer when the learned judge made a residence order concerning a five-year-old child to the 70-year-old grandmother. At paragraph 17, Wilson LJ, as he was then, said “fundamentally, this appeal turns upon the age of the grandmother and the likelihood that, irrespective of whether she remains alive for the next 13 years, she will prove incapable, at any rate towards the end of that period, of caring satisfactorily for J”. In this case there was criticism by the Guardian that the judge had been irresponsible to have left the plan for the child sketched out only in the barest outline by "reference to the likely presence, somewhere or other, of the aunt, of the grandmothers other two children and the grandmother's various other grandchildren”. It is clear from the decision the learning trial judge was impressed by the substantial wider family in terms of its cohesiveness and commitment to the child.
At paragraph 19, Wilson LJ states that there is no doubt that it is very unusual to consider it appropriate to commit a five-year-old child to the permanent care of a 70 year old grandmother. However within this decision the Court of Appeal accepted that there was some support by one expert witness in the case for the grandmother to provide care for this child and that the judge had given reasons why he disagreed with the recommendations of the children's Guardian and the other experts. I remind myself that the decision in this case is a matter for me and I am at liberty to disagree with the recommendations of the local authority and the Guardian but I must have good reason for disagreeing and clearly express my reasons if I do.
I take into account all the legal principles I have outlined in the paragraphs above. I treat AL’s welfare as my paramount consideration and I have regard to the principal that any delay in decision-making for AL is likely to be contrary to her best interests. Any order I make will be an interference with the right to private and family life of AL and one or other of her family members depending on the decision that I make. I should only interfere in the right to family life if that interference is prescribed in domestic law, pursues a legitimate aim, is necessary in a democratic society and is a proportionate step to take in the pursuit of that aim.
There are clear advantages for AL in the plan presented by the local authority. She would be placed with carers who have been assessed as able to meet a child of AL’s age and will be specifically matched to her needs. She will, if adopted, become a full member of her new family and have security with them throughout her childhood and into her adult life. She would not experience another predictable loss of her main care giver and attachment figure. It is her best interests throughout her life that I have to consider and adoption provides for her the best chance of reliable long-term care. However, adoption has a number of significant disadvantages. It severs AL’s legal ties with her birth family. Her brother and sisters are no longer, in law, her brothers and sisters. If adopted she will be placed with carers who have no direct knowledge of her mother. AL will learn of her mother's death and will have questions about her. Adopters will not be best placed to answer these questions. Although the local authority's plan is for there to be some direct contact, the local authority falls short of making it a requirement of matching that prospective adopters facilitate direct contact with family members. The local authority anticipate that adopters will find direct contact with the siblings and GGPs less threatening than direct contact with a parent and I have expressed my view that the local authority should be optimistic that they will find adopters prepared to support this important contact between AL and her siblings. That said, it is not guaranteed. A further disadvantage of adoption is that contact once per year is no substitute for growing up having everyday experience of your brother and sisters.
The advantages of the plan put forward by the GGPs are that it provides for all the matters that I have set out as being disadvantages in the plan for adoption. AL would remain within her birth family. She would retain full knowledge of her siblings, uncles and aunts, grandmother and cousins. She will have the benefit of the excellent care that would be provided for her by the GGPs. I was very impressed with both GGF and GGM. They have a lot to offer AL and it would be a significant loss for AL to be denied the chance of experiencing a close relationship with them.
However, there are very real disadvantages in the plan presented by the GGPs. AL would grow in the care of the GGPs, watching them age and knowing that ultimately she will have to look elsewhere to have her long-term care needs met. I share the concern expressed by Ms Steele in her assessment that AL may find herself acting as a carer for the GGPs, not that she is required by them to do this but because she feels a duty to do so. I am sure that if she grew up in the care of this great-grandfather she would share his sense of family duty and would want to do the best by them.

Conclusions and Orders

It is clear to me that this case is not just about age. I accept that had an appropriate support package been possible from the family resources available, that Miss Steele saw such positive attributes to the care that could be provided by the GGPs, that the local authority would have been open to supporting an unusual outcome of placing a one-year-old child in the care of the 71-year-old great-grandfather and a 69 year old great grandmother. This has been a very finely balanced decision. I do not share the Guardian’s certainty that the right decision for AL in this case is so clear. There are substantial disadvantages to AL in both of the options presented to me.
I have carefully considered whether I should leave decisions about finding care for AL in the future to the GGPs. As I have already said, I am impressed with them and I know that they would want to do their very best. I am to look into the future as to what I consider to be best for AL. Looking at the package that the GGPs have been able to put forward today, given what is at stake in these proceedings, does not give me confidence that the GGPs would be able to find anything better in the future. I accept that needs and circumstances change but I have to make a decision for AL today that will have life-long consequences for her. To do that, I need to have some confidence in the extended family. I do not have that confidence. My confidence in the GGPs is not enough. I simply do not know and cannot predict what would happen to AL. The absence of any predictable plan and the unavailability of suitable alternative care has led me to conclude that AL’s welfare throughout her life will be best met by her placement for adoption. This is, in my judgment, the proportionate response to her need to have reliable, constituent and long-term care.
I have considered all the factors in the welfare checklist in the Children Act 1989 and the Adoption and Children Act 2002. I have considered the proposals for contact set out in AL’s care plan. These are not opposed by any party and I am satisfied that they meet AL’s need to have some on-going experience of her siblings and GGPs. I am also satisfied that the provisions of the care plans for MB and PB are appropriate and that the plans for contact meet their needs. I make MB, PB and AL the subjects of full care orders to Leeds City Council.
The 2^nd application before the court is for a placement order concerning AL. In considering this application, I have regard to section 1(2) of the Adoption and Children Act 2002. AL’s welfare throughout her life is my paramount consideration. I have considered all the factors set out in section 1(4) of the ACA 2002 and particularly the effect on AL of ceasing to be a member of her birth family and becoming an adopted person and section 1(f), her relationships with relatives, the likelihood of these continuing, their ability to provide her with a secure environment and their wishes and feelings.
I have come to the conclusion that there are no family members that are able to provide the long-term care for AL that she needs. The contact arrangements that I have approved in the care plan will provide a link with the birth family that will enable AL to have direct contact with her siblings and to benefit from direct experience of her GGPs. AL requires permanent carers for the rest of her childhood and a family life with them for the rest of her life. It will be a loss for her to lose her family of origin but I have reached the conclusion that adoption is the best option for AL and that this loss is outweighed by the benefits that a ‘forever family’ will bring.
LL does not consent to the placement order. I have considered section 52 ACA 2002. I am satisfied that AL’s welfare requires that consent be dispensed with and I dispense with the consent of LL and, having considered and approved the proposals for contact, make a order authorizing Leeds City Council to place AL for adoption.

Recorder Howe

17^th April 2014

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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> MB, PB and AL (Children), Re [2014] EWCC B45 (Fam) (16 April 2014) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2014/B45.html Cite as: [2014] EWCC B45 (Fam)

England and Wales County Court (Family)