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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> M, R & MF (Children), Re [2015] EWFC B90 (02 April 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B90.html Cite as: [2015] EWFC B90

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IN THE FAMILY COURT AT RHYL
(Sitting at the County Court at Mold)


IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF M, R & MF (CHILDREN)

		2nd April 2015

JUDGMENT

2^nd April 2015

HIS HONOUR JUDGE GARETH JONES:

1. I have before me a number of applications which concern a sibling group of three children, who I shall identify in this judgment as M, R and MF respectively. M was born on 14^th June 2010 and she is therefore four years of age; R was born on 21^st August 2012 and she is therefore two years of age; and MF was born on 22^nd July 2013 and she is a year old. R and MF are represented by their Guardian, Miss Louise Segar, and by their solicitor Miss Owens. These children are involved in public law applications. So far as M is concerned she is the subject of a private law application.
2. The other parties are:

(i) the Local Authority who I shall identify as "X County Council". The Local Authority is represented by Mr Sellars;

(ii) the mother of all three children, who I shall identify as "the mother", is represented by Mr Abberton;

(iii) the father of M, I shall identify as "the father". He has been represented by Mr Bureau and by Mr Jamieson today;

(iv) the father of R and MF I shall identify as "W". He shares parental responsibility for these children but he is not present today, nor has he been represented nor present throughout these proceedings, although he has been served with the applications for the Placement Orders.

3. The represented parents have been present at Court during the hearing and have given evidence themselves. The father of M is still present in the courtroom now. The mother was present earlier when I announced my decision. She is no longer present because of her reaction and extreme distress at that decision, and in due course provision can be made for a transcript, so that she can consider the reasons for the Orders that I announced.
4. The Court has before it the following applications:

(i) X County Council apply for Placement Orders with regard to R and MF. Those applications were issued on 26^th February 2015.

(ii) The mother has applied for discharge of the Final Care Orders which have been made in respect of R and MF; and

(iii) The mother has applied for declaratory/injunctive relief under sections 7 and 8 of the Human Rights Act 1998 with regard to R and MF, those applications being made in October and November 2014; and

(iv) The father has applied for a Child Arrangements Order with regard to M, that application being made in August 2014.

5. I have considered the relevant statements and the reports which have been filed in these proceedings. I was the trial Judge who made the Final Care Orders with regard to R and MF, and therefore I have a considerable familiarity with this case.
6. I have heard oral evidence from the following witnesses:

(i) the key social worker, James Connolly;

(ii) an IFSS (Integrated Family Support Service) worker, Sarah Freeman;

(iii) an Independent Social Worker, Sue Hardy;

(iv) the mother;

(v) the father of M;

(vi) the Guardian for R and MF; and

(vii) a Section 7 Officer, Kate Hinkson, who dealt with the application with regard to M.

7. The hearing began on Monday 9^th March 2015 and continued until Friday 13^th March 2015 at Rhyl Family Court. It was adjourned to today (2^nd April 2015) for judgment at the Mold Combined Court Centre for reasons that I shall explain later in this judgment.
8. At the outset of the hearing, I refused an application by the Local Authority to direct an expert, Dr Durand, to attend the hearing to be cross-examined. The requirements of FPR 25.9 were not met. The two issues raised by the Local Authority could, in my judgment, be answered by supplemental written questions in the course of this hearing, and that was indeed undertaken.

The background to the applications

9. On 11^th June 2014 I made Final Care Orders with regard to R and MF. There is a transcribed judgment of that date included within the trial bundle, and a Threshold Document dated 12^th May 2014 (which I found to be established) and which was attached to the Final Care Orders. The judgment and the Threshold Documents are key documents.
10. The Care Proceedings had been initiated in December 2013 following the final precipitating event, which occurred on 2^nd December 2013, when the mother took MF and R to their father (W's) address, and left the children with him.
11. The mother was later admitted to the mental health unit of a local hospital under section 136 of the Mental Health Act. It was recorded, but the mother did not accept, that she was carrying a knife, had taken ketamine and was wandering in the street in her pyjamas.
12. The Threshold Document identified the significant harm, or the risk thereof, which was attributable to the absence of reasonable parenting, namely:

(i) domestic violence, in particular between the mother and W, but there was also intra-familial discord;

(ii) the mother's mental health difficulties, including self-harming and attempted suicide;

(iii) the mother's criminal antecedent history;

(iv) the mother's substance misuse, both alcohol and drugs; and

(v) the failure to obtain prompt medical attention for R when she sustained an accidental injury to her ankle by a fall on 21^st November 2013, medical attention being sought only two days later.

13. These headings were amplified by way of specific episodes in the Threshold Document itself which was approved by the Court.
14. The Local Authority's Final Care Plan proposed an incremental reunification or rehabilitation of R and MF to the mother's care. M, who had been living with her father since August 2013 (predating the Care Proceedings involving R and MF) was unaffected by this arrangement, and Social Services were supportive of M's continued placement with her father.
15. I should explain this sequence of events, briefly. M's father had become a feature in M's life when she was approximately six months-old, and following the confirmation of his paternity by DNA testing. The mother's sexual relationship with M's father had been of a short and limited duration, although the two have been acquainted for a number of years.
16. By November 2011, the mother's relationship with W had started, and the birth of R followed in 2012, and MF in 2013.
17. M's father decided to retain her in his care from August 2013 because of his concern about the destructive relationship between the mother and W, and its harmful potential effect upon M. M was registered on the Child Protection Register on 28^th August 2013.
18. The mother blames W for much of what has befallen her since November 2011, and it is evident that the parenting of R and MF was unsatisfactory up to December 2013 while this relationship continued. Since December 2013, R and MF have been and remain in local authority foster care.
19. The 2014 judgment identifies a number of salient features:

(i) The mother's longstanding historic difficulties and poor intra-familial relationships (see paragraph 14);

(ii) The episode of disorder between the mother and W (see paragraph 1, page 2) which occurred in May 2014;

(iii) The timescale for the anticipated reunification of R and MF was up to September 2014. The mother was having visiting contact with R and MF four times per week for two hours in June 2014, and that was to be extended further (see paragraph 15, page 4). In addition there was a package of support identified from IFSS, Women's Aid, and a clear safety plan (see paragraphs 17 and 18, page 4);

(iv) The mother's impending appearance before the Magistrates Court in July 2014 was a potential pitfall if the mother received a custodial sentence;

(v) The Plan had a clear contingency in case of failure, namely placement outside the birth family (see paragraph 16, page 4); and

(vi) I buttressed the protection for the mother (and importantly for R and MF) during the reunification period June to September 2014 by making a time limited Order under section 34(4) Children Act 1989 in relation to W and his contact with R and MF, and furthermore by making a Non-Molestation Order under section 42(2)(b) Family Law Act 1996, protecting the children (R and MF) from their father (W's) conduct during the currency of the Care Order. That Order in fact remains in force.

20. The Guardian, Miss Segar, and the Local Authority, despite the pitfalls evident in June 2014, recommended approval of the Plan for reunification. The carefully constructed Safety Plan identified the risks, and the remedial steps required to address the risks. The IFSS, Women's Aid and Social Services were to be involved in supporting the Plan, and one of the key goals of improvement identified related to the mother's anger/frustration and impulsive behaviour (see page B29 of the goal sheets).
21. The mother had a good relationship with the children, and when properly focused and without distraction was capable of providing acceptable basic care. However, while I was hopeful about the mother's prospects and wished her every success, that observation at paragraph 3 page 2 of the judgment was couched in realistic terms:

"The recent events reinforce the fragility of the mother's circumstances and how potentially tenuous some aspects of the Rehabilitation Plan are".

22. That observation has unfortunately been borne out by the events which have occurred since 11^th June 2014. It should not be forgotten that the episode between the mother and W occurred on 15^th May 2014, only days before the Final Hearing of the Care Order applications. The pretext was the mother's previous "one night fling" with DH, which resulted in the incident referred to in paragraph 1, page 1 of the judgment, and at page D20 (the mother's statement) in the historic care bundle.
23. The assault by the mother on W's girlfriend (CD) occurred on 11^th April 2014 (see E27 of the Police antecedent history). During the proceedings for the Final Care Order the mother "categorically denied assaulting this person" (see D20). Her Court appearance was scheduled for 3^rd July 2014. In fact the mother, shortly thereafter, decided to "accept responsibility for what I had done by pleading guilty" (see B102). A Community Order was imposed by the Magistrates Court for a common assault.
24. I observe that probably few Rehabilitative Care Plans have proceeded in such inauspicious circumstances as this Plan, with a serious episode of domestic disorder only days prior to the conclusion of the Care Proceedings, and a scheduled Court appearance by the mother only days after the conclusion of the Care Proceedings.

The mother's behavioural difficulties

25. The mother has suffered from significant episodes of mental ill-health and behavioural disturbance since her adolescence. At pages E12-19 there appears a helpful chronology of medical records in respect of the mother from 2003 to 2014, which makes for unhappy reading. It is obvious that the mother's difficulties are longstanding and entrenched in their nature.
26. The non-conviction information from the North Wales Police (see E30-E36) records approximately thirty-five episodes of antisocial, violent or self-harming behaviour or conduct. Many instances recorded relate to disputes between the mother and close members of her family, for example the maternal grandmother and the mother's own siblings. Furthermore, there are fifteen convictions for twenty-four offences recorded from 2007, including very many offences against the person, and public disorder offences.
27. The mother has a long history of substance misuse, including but not confined to cannabis and alcohol. She told me that she had used cannabis since her childhood. The mother is only in her early twenties currently. That usage of cannabis by the mother continues, as she told me in evidence.
28. In a letter dated 15^th January 2015 (see C8) Dr Martin Jones, a Consultant Psychiatrist, provided a diagnosis of the mother's condition. The mother:

"…presented with a complex mix of symptoms suggestive of an emotionally unstable personality disorder",

otherwise known as a borderline personality disorder. He also suggested attention deficit hyperactivity disorder (ADHD). This diagnosis is supported by another Consultant Psychiatrist instructed in this case, Dr Laurie Durand, in her report dated 26^th February 2015 (see C9). Dr Jones has identified the antipsychotic mood stabilisers and antidepressants prescribed for the mother.

29. This formal diagnosis of the mother's condition was unavailable to the Local Authority and the Court in June 2014. What was well and truly appreciated by everyone was that the mother had demonstrated impulsive, harmful and sometimes violent behaviour for very many years. However, the Plan formulated and approved in June 2014, evaluated the risks and addressed them on the basis of the information available at that time.
30. A careful incremental timetable was formulated. The mother seemingly had disengaged and disentangled herself from her dependence upon W, and she was physically removed from the influence of her own family. The mother appeared at that time to be well motivated to succeed.
31. It is the Local Authority's position that matters unravelled speedily after June 2014 and, before the introduction of overnight stays for R and MF at the mother's home, the process of reunification was stopped because of the risk of harm to both girls.

The events since 11^th June 2014

32. There is a detailed Local Authority chronology which is contained in section B of the main bundle. In some instances I have heard direct oral evidence from Local Authority witnesses describing some of these episodes first hand. For example, the key social worker, Mr Connolly, provided oral evidence about 11^th September, 5^th August and 17^th September 2014. Miss Freeman was able to tell me about 22^nd July 2014. There are documentary records and contact recording forms, which are of course admissible in Family Proceedings.
33. To the extent that there is a dispute between the Local Authority's evidence and the mother's about the events since 11^th June 2014, in general I prefer the Local Authority's evidence and I do so for four reasons:
34. Firstly, because in a number of instances the Local authority evidence is given first-hand by oral evidence, from professional witnesses without any obvious motivation to lie, despite some of the mother's misgivings and suspicions. Indeed the mother at one stage in her oral evidence suggested that the Local Authority's case had been brought for the following reason:

"I think all of this is happening because you all want my kids".

I reject such a contention out of hand.

35. Secondly, because the mother in evidence admitted behaviour which in itself was serious enough on occasion. For example, Mr Connolly had described to me an assault by the mother on a service manager, Sue Moss, during a meeting in the following terms:

"The mother broke free of her friend's restraint and she grabbed Sue Moss by the arm and tried to grab her by the throat. N was trying to restrain her and did so. I stood between the mother and Sue Moss, and N was the one who led the mother out of the room. We followed the mother out into the roadway, she collapsed onto the roadway and was distraught on a public highway".

36. The mother's evidence was:

"I grabbed Sue Moss by the arm/wrists and shook her".

This is a distinction without much of a difference. If the mother can admit the latter there is only a slight degree of difference with the former. She is capable clearly of violent and unrestrained conduct.

37. Thirdly, in general the conduct complained of by the Local Authority after June 2014 replicated much of the conduct I have witnessed by the mother herself during the course of these proceedings, including today (I will refer to this later in my judgment). Accordingly I can quite easily reconcile the Local Authority's evidence regarding the mother's behaviour with my own observations in the courtroom.
38. Fourthly, on occasion the mother's recollection of events/memory fails her. For instance, when questioned about the incident on 17^th September 2014, when she allegedly kicked furniture and windows at the Local Authority's offices, she said:

"I don't recall that, I can't remember".

This may be an evasion or alternatively she may have so completely lost control of herself that she was unable to recollect the detail of her conduct. Either way she is unreliable as a witness.

39. Instead of repeating the chronology in this judgment I propose to identify those features which led to the suspension of the plan for reunification.

The mother's behaviour towards or in the presence of her children

40. There are numerous examples. On 13^th June 2014 during contact, there was a dispute over the maternal grandmother's attendance. This was barely two days into the Reunification Plan.
41. What the contact recording form goes on to reveal is the extent of the mother's damaging behaviour towards her children – in this instance M. M's main carer (her father) was denigrated during this contact in an unrestrained and damaging way. The mother demonstrated little insight or empathy, and plainly had no comprehension of the potential impact of her behaviour.
42. The mother may well have been annoyed or preoccupied about the dispute over the maternal grandmother's presence at contact the day before M's birthday. However, adults need to be able to deal with life's vicissitudes all the time, and overcome them without verbally lashing out indiscriminately. For M to hear her mother describing her father as a bad man who was being blamed for preventing M from seeing her mother was bad enough. To be told that M would be leaving her father's care and returning to live with her (the mother) in three months was undermining of M's security and stability with her father.
43. The mother blamed M's father for M's hairstyle, for caring more about work than looking after his daughter, and M was also told that she (the mother) did not love M's father. The mother may well have been angry, but a child subjected to such a barrage, if repeated over time would be confused, undermined, rendered insecure and made to feel guilty and responsible. In short, such conduct would be emotionally harmful.
44. Another stark illustration of the mother's harmful behaviour is evident from the outing to the zoo on 22^nd July 2014, described by Miss Freeman. I accept Miss Freeman's account of this incident involving the mother, R and MF.
45. The girls had been with respite carers, rather than their usual foster carers. It was an exceptionally warm day and the respite carers had packed sports cap bottles rather than baby bottles of cooling drinks for the girls. From this initial comparatively minor upset developed a truly shocking display of volatile, aggressive and erratic behaviour by the mother. The mother's initial angry tirade was directed at the foster carers. A member of the public at the zoo was barged by the girls' buggy, which was being pushed by the mother, and told:

"You might want to fucking move out of the way next time"

The mother was shouting and swearing and she wanted to go to the respite foster carers to have it out with them, before she was deflected by Miss Freeman.

46. Eventually, the mother agreed to go home, via a visit to a duck pond in G [name of town given] where the mother's behaviour was somewhat calmer. The car journey itself was extremely difficult for Miss Freeman to manage with two young children and an angry mother. After stopping off at G [name to town given] the mother's behaviour escalated again, when the mother was informed by a social worker in a mobile telephone exchange that money for another contact session the next day would not be forthcoming. As the car passed slowly through F [name of town given], at one point the mother tried to open the car door before Miss Freeman pulled over onto the pavement. The children were returned to the foster carers and the mother was returned to her friend N's.
47. The incident is illustrative of a recurrent pattern of behaviour by the mother:

(i) there is a precipitating trigger episode, usually objectively quite minor;

(ii) the mother simply cannot deal with, nor overcome such an occurrence;

(iii) the mother's behaviour in response is extreme, and is for a child witnessing it, or being in the vicinity, extremely frightening and inexplicable; and

(iv) the behaviour may subside for an interval, but may easily be reactivated at the slightest pretext, thereby creating an atmosphere of uncertainty.

48. The effect upon a child of being subjected to this degree of emotional lability over time is a damaging one. Children crave security and stability with predictable responses from those adults caring for them. The pervading uncertainty caused by long-term exposure to such volcanic eruptions of bad temper, aggressive and violent conduct by a parent can erode a child's repose, self-confidence and safety. The child may become uncertain, apprehensive and fearful, or worse becomes so accustomed to this conduct that he or she is inured to it and emotionally deadened as a result. In such a manner is a child harmed by the impairment of his or her emotional development as defined under section 31(9) Children Act 1989.
49. This can be every bit as damaging as physical ill-treatment. The statement of the Local Authority's foster carers (see B63-B64) may provide some indication of the girls' reaction to the mother's behaviour, in their distress upon returning from some contact sessions, and some perceived reluctance to attend.
50. There is also the strong possibility of accidental physical injury being occasioned to a child where a parent is so out of control, and there is the possibility also of physically neglectful care due to the preoccupation of a parent.

The mother's behaviour towards social workers

51. This aspect is of importance because the mother's cooperative working relationship with the Local Authority was obviously critically important to the success of any planned reunification of R and MF to the mother's care. Furthermore the Local Authority held pre-eminent parental responsibility for the girls, and were obliged to ensure their reasonable safety.
52. I have referred already to the difficult contact on 13^th June 2014. M's father's response to that was (as he told me in his oral evidence) to suspend the mother's contact with M, because he was so concerned about what had occurred during this supervised contact. M's father cannot be criticised for this.
53. Similarly the Local Authority decided to suspend the mother's contact with R and MF while the situation was reviewed.
54. The mother's response on 17^th June 2014 was predictable. She attended at the Local Authority's offices in Y [name of town given] shouting and crying uncontrollably. However, despite this setback the Local Authority persevered and contact was reinstated, and following a LAC Review on 8^th July 2014, the Rehabilitation Plan resumed.
55. This was short lived and the zoo visit on 22^nd July 2014 appears to have been the final straw. The mother's contact with R and MF was discontinued following a decision taken on 28^th July 2014, and communicated to the mother on 29^th July 2014, although there had been contact after 22^nd July 2014 as Mr Connolly confirmed in his oral evidence.
56. The mother's abusive reaction on 30^th July 2014, towards local authority staff at their offices, was the mother's response to this discontinuation.
57. On 5^th August 2014, the mother was informed that the Reunification Plan was being altered to a Plan for adoption, and I have referred already to Mr Connolly's evidence about this, and to the mother's aggressive and violent reaction towards Social Services. At that point R and MF were having daily contact with the mother from 10 a.m. to 5 p.m. five times per week on weekdays, but no overnight stays had been initiated.
58. There were subsequent episodes in August and September 2014 revealing the deteriorating situation between the mother and local authority social workers and managers, and there have been others in November and December 2014. For instance on 24^th November 2014 the mother admitted that the Police were called to deal with her behaviour at Children's Services Offices (and Mr Connolly's account of that is at page B47-B48).
59. On 17^th December 2014, there was another episode when the mother's misconduct at Children's Services appears to have been triggered by her seeing her ex-partner, W (R and MF's father).
60. The mother's hostility is not, however, confined to social workers. On occasion it can spill over into criticism of foster carers, for example the respite carers, more particularly evident in July 2014.

The mother's behaviour in relation to adult third parties

61. As I have noted, on 3^rd July 2014 the mother (having pleaded guilty to a common assault on W's girlfriend) was sentenced to a Community Order with a stand-alone requirement to complete the Managing Aggression Workbook. The pre-sentence report dated 3^rd July 2014, while indicating that her previous response to supervision had been good, confirmed that she was a medium risk of harm, and a high risk of reconviction (see E48).
62. On 16^th July 2014 it would appear that the mother was the victim of an assault committed by her own father upon her. She refers to this in her statement (see B102-B103).
63. The mother's compliance with the Probation Service became poor. She failed to attend two appointments on 4^th and 11^th July 2014, and she was breached on 5^th August 2014 for her failure, when the Community Order was varied (see E50-E52).
64. On 2^nd September 2014, the mother assaulted another female, and she was charged with a common assault. The mother's account of this episode is at B111-B112. For this offence (on 15^th January 2015) the mother was sentenced to ten weeks imprisonment suspended for twelve months, and she was also the subject of a curfew requirement.
65. On 25^th September 2014, the mother had some sort of confrontation with another young female outside the contact venue.
66. On 22^nd February 2015, the mother was the victim of an attack by W's girlfriend, prior to her (the mother's) contact with M. Miss Hinkson provides a description of this episode (see B89) in her Section 7 report, and the Guardian also refers to it, since it prevented her from observing a session of contact between the children and their mother.
67. The mother is unable to extricate herself from these kinds of situations, either as a victim or as a perpetrator of violent and aggressive episodes involving assault or disorder. This is but an aspect of her personality which she is seemingly unable to control. She is, however, subject to a suspended prison sentence and there is a distinct possibility that she could be the subject of a custodial sentence in the future. Furthermore, vulnerable children could be at risk of physical injury in cross-fire situations of violence between adults.
68. There is another aspect of this which is troubling. Historically, the mother's violent relationship with W was harmful for the children, and hence the injunction imposed, which so far as I am aware has acted as an external deterrent, and there is no indication that the mother and W have resumed their relationship. Indirectly, however, the feud may be continuing by W's use of agents (be they girlfriends or ex-girlfriends) acting on his behalf. The mother has expressed to me her hatred of W, "he is like the devil", but she admitted that she was taunted by his girlfriends, or worse, and the mother is more than capable of retaliation. On occasion there has been at least mobile telephone contact between the mother and W, as she indicated. The risk presented by W and the mother's relationship remains, albeit in a different guise.
69. Furthermore the mother's relationship with the maternal grandmother, which historically was also one of difficulty, has been resumed. The maternal grandmother was present in Court during much of this hearing, and she was there to support her daughter, and the mother made it quite clear that far from maintaining her distance from the maternal grandmother, she now wanted to move to live closer to her mother's home.
70. These difficult intra-familial relationships on the mother's side (involving the mother's siblings as well) are likely therefore to persist. The maternal grandmother (from what I could observe in Court) was not able to act as any kind of restraining influence upon her daughter in the courtroom, when the mother's behaviour became disorderly. Indeed, any attempted restraint by the maternal grandmother appeared to provoke the mother even further. However, the maternal grandmother was not isolated in that respect.
71. The mother had described in her oral evidence M's father as her "best friend". They had known each other since their teenage years. Physically slight and diminutive in appearance, M's father did not pose a physical threat to the mother, the mother having expressed in the witness box an aversion towards men who towered above her and who spoke down to her.
72. M's father was as helpful as he could be towards the mother. He disclosed that the mother paid regular voluntary maintenance for M, and that contact currently was working reasonably well between them. He was critical of Social Services and he believed the mother could, "turn things around with correct support". He confirmed that he still cared for the mother, and he appeared to be emotionally moved when he told me this. However, when the mother became disorderly in the courtroom, he too like the maternal grandmother, could exercise little restraining influence upon her whatsoever. The mother, as I observed, told him in no uncertain terms to be quiet.
73. M's father has had his previous difficulties with the mother. The non-conviction information (see E30-E31) reveals some episodes in the summer of 2014 at the time of the proceedings involving R and MF. M's father is not an unperceptive individual. He told me he would protect M in the future from her mother's behaviour, if that became necessary, for instance by the regulation of or the suspension of the mother's contact with M. He must see that just as he must protect his daughter, M, I have a duty to protect R and MF.

The Local Authority's response

74. I have already indicated that the Local Authority responded to the events described by discontinuing the mother's contact, and then by halting the Reunification Plan and reverting to a contingency Plan of adoption, although the Local Authority's formal applications for Placement Orders post-dated the mother's application by some months.
75. The Local Authority in its position statement has accepted that it acted improperly in changing its plan from one of rehabilitation to one of adoption without undertaking a further, and a fuller assessment of the mother, and without involving the mother in the decision making process. The Local Authority contends, however, that these procedural deficiencies have been remedied in this instance by the commissioning of an independent social work assessment by Miss Sue Hardy, and by obtaining the psychiatric report of Dr Durand.
76. Mr Connolly accepted that there were no records of the decision taken on 28^th July 2014 to discontinue the mother's contact, a decision communicated to the mother by a home visit on 29^th July 2014. The entries in the chronology (see B42) emanate from case notes, but no fuller account appears elsewhere.
77. Discontinuation of contact is one thing, termination of a planned rehabilitation is something else. That decision was communicated to the mother on 5^th August 2014, as the chronology makes clear. There are no documentary records which record the decision making process, the participants who sanctioned the decision, the factors taken into account in reaching the decision, and the assessment of favourable and negative information relating thereto. There was no consultation, advance notification, and no participation by the mother in this decision making process.
78. That so important a decision could be so inadequately recorded is disturbing. The absence of any proper record (whether oral or documentary) creates a lacuna with regard to the procedure actually deployed by the Local Authority. I draw the inference simply by the coincidence of events that this decision, notified so soon after the disastrous visit to the zoo on 22^nd July 2014, was inevitably influenced thereby.
79. A decision to suspend contact under section 34(6) of the Children Act 1989 can be decided upon as a matter of urgency, but a decision with regard to the continuation of a planned rehabilitation is quite different in its nature.

The Local Authority's Plans and the Plans for M, and the position of the parties with regard thereto

R and MF's situation

80. The Local Authority's revised Plan for R and MF is a time limited search of nine months duration for an adoptive placement of the two girls together. The placement of the two children together is an essential prerequisite to the Plan. If this outcome cannot be achieved within this timescale the Local Authority will apply for a revocation of any Placement Orders granted.
81. Accordingly, while the effect of any Placement Orders must be evaluated over a lifetime in accordance with the Adoption and Children Act 2002, the achievement of this outcome in this case is limited to a nine month period. What realistically is the mother's prospect of improvement in this limited timescale? Outside this timescale what are the mother's prospects more generally? I will consider these issues later.
82. During this search period, the mother's contact with R and MF would be gradually tapered from its current thrice per week level to once per month (between the mother, R and MF) and once per month (for the mother, R, MF and M). The latter obviously would require M's father's cooperation.
83. R and MF's father has not been exercising recent contact following the time limited Order under section 34(4) of the Children Act 1989, and he has not participated in this hearing. There is no other important familial connection for R and MF – the maternal grandmother is at best an intermittent presence.
84. R and MF will remain with their current foster carers (Mr and Mrs P) with whom they have established a relationship over the past fifteen months or so. If the Local Authority cannot place R and MF together within the above timescale, then as the Contingency Plan, the girls would remain with their current foster carers during their childhood, and Mr and Mrs P have confirmed their commitment in this regard.
85. The foster carers are in their forties with two teenage children of their own and two other children, one adopted and one in long-term foster care. This is quite a busy household for R and MF.
86. The Guardian is supportive of the Local Authority's Plan. She has suggested, however, that if ultimately R and MF remain in a long-term foster placement because an adoptive placement is not identified, then the mother's contact with R and MF should still be provided on the same monthly basis. This would enable both R and MF to become more established in their childhood home with Mr and Mrs P. These arrangements would be subject to the usual process of periodic statutory review by the Local Authority.
87. The Guardian also raised the possibility of direct, post-adoptive contact between firstly, R and MF and their mother, and separately R, MF and their sibling, M, secondly. Again this would involve M's father in conjunction with R and MF's adopters. The Guardian was clear, however, that priority should be given to R and MF's placement needs, and any such direct post adoptive contact should be provided annually. If this did not materialise then the usual indirect agency post-box arrangements should apply.
88. The Local Authority (via Mr Connolly) indicated that these arrangements could be considered by the Local Authority when undertaking its placement search as an Adoption Agency, the Local Authority having an open mind on this particular issue.
89. The mother was opposed to any Placement Orders and wanted R and MF placed in her care, either by the discharge of the Final Care Orders (coupled or not by Supervision Orders) or by injunctive relief under the Human Rights Act 1998, the Local Authority being directed to proceed with the discontinued Rehabilitation Plan under a Final Care Order. Alternatively, if R and MF could not be returned to the mother's care, long-term foster care was the mother's preferred outcome, achieved by the dismissal of the applications for Placement Orders. Under this outcome the mother's current contact arrangements could be preserved.
90. Ultimately, however, the mother contended for as much face-to-face contact with R and MF as the Court would allow, including post-adoptive direct contact, if the placement Orders were made, and if placements were ultimately found.

The situation with regard to M

91. M's father and the mother have agreed that M should live with her father under a Child Arrangements Order, which was made in this case in February 2015. After the events of last year, the mother's contact with M has been reinstated, and at the time of this hearing approximately five have taken place with reasonable success.
92. The Section 7 Officer (Miss Hinkson) has proposed that contact between M and her mother be continued once every fortnight. It is accepted there could be intervening indirect contact by mobile telephone, or Skype, and by presents/cards on important occasions for M.
93. The mother contended for more frequent weekly contact with M. At the outset of this hearing there was also a dispute with regard to:

(i) the requirement for supervision of the mother's contact; and

(ii) the need for any defined Order.

94. It became clear during the proceedings, however, that with the background to this case and the personalities involved, and the dispute about the level of contact itself, the "no Order" principle could not apply. At the very least a minimum level of contact for the mother required definition.
95. The Local Authority confirmed that M's father could be afforded assistance with any contact arrangements for a twelve week/three month period, with regard to sessional workers and venue. This could be formalised by the making of a Family Assistance Order (which was not opposed by the Local Authority). Ultimately, however, without any statutory Order the arrangements for contact were a matter for M's mother and father, and in due course M's father would be expected to supervise any contact if this became a condition of any contact arrangement.
96. The father's counsel suggested a series of provisions by way of recordings/conditions which should accompany any defined Child Arrangements Order for contact.

The legal provisions to be applied

The private law applications relating to M

97. Applications for Child Arrangements Orders with regard to M are governed by the paramountcy of her welfare, and the so called 'welfare checklist' provisions under section 1(3) Children Act 1989. Since 22^nd October 2014, a Court should presume, unless the contrary is shown, that the involvement of a parent in the life of the child concerned will further that child's welfare, that being the effect of section 1(2A) Children Act 1989. The contrary may be established where "harm" or the "risk of harm" exists under section 1(6) Children Act 1989.
98. Directions or conditions can be imposed under section 11(7) Children Act 1989, and a Family Assistance Order can be made under section 16 Children Act 1989 in respect of any child or an adult (if the adult consents) for a period up to twelve months. Any local authority so named in an Order can assist with contact arrangements under section 16(4A) Children Act 1989.

The Human Rights Act 1998 and the discharge of Care Orders relating to R and MF

99. The mother's application under section 7 Human Rights Act 1998 is combined with her application for discharge of the Care Orders under section 39 Children Act 1989. In general, applications for discharge are governed by the paramountcy of welfare and the so called 'welfare checklist' provisions under the Children Act 1989.
100. Under section 8 Human Rights Act 1998 the Court may:

"… grant such relief or remedy or make such other Order within its powers as the Court considers just and appropriate".

101. The mother under this heading relies upon the decision in Re DE (A Child) [2014] EWFC 6, and the guidance given in paragraphs 34, 35 and 49(1-6) specifically, approved by the President of the Family Division. In particular, a local authority when considering a change in its plans for children involving permanent removal by way of adoption must:

(i) rigorously analyse all the realistic options, considering the pros and the cons; and

(ii) involve the parent or parents properly in the decision making process.

102. This guidance follows an earlier decision to similar effect in G v NCC [2009] 1 FLR 774 paragraph 30.
103. In this instance, there was no actual removal of R and MF because rehabilitation had not proceeded that far and into overnight stays. The Plan was discontinued and altered at the visiting contact stage, albeit at a level of five times per week when the decision was taken. I suspect that the mother, even if afforded such an opportunity to participate in any decision making process and with advance notice thereof, would not have contributed rationally and calmly. This would not be consistent with her personality and her behaviour. Perhaps it was the social workers' fear of the mother's likely reaction which led them to circumvent this process.
104. Be that as it may, the factual situation in this case was that following the communication of the Local Authority's decision to the mother – nothing immediate occurred – at least so far as R and MF were concerned. They were still with their foster carers. The mother was afforded contact (albeit at a reduced level) and once the Court became seized of the applications, the Local Authority's assessment was essentially conducted by a third party, namely the Independent Social Worker, Miss Sue Hardy.
105. The Guardian is critical of the delay from August 2014 from the children's perspective, where matters were essentially "on hold". However, the Local Authority is now armed with a thorough assessment of the pros and the cons, and the mother has fully participated in the decision making process during these Court proceedings.
106. The Local Authority relies upon the decision in Re C [2007] 1 FLR 1957, and contends that at best there should be a limited declaration, reflecting the admitted procedural deficiencies, but an award of damages in these circumstances would not amount to a "just satisfaction", and the merits of the decision itself favours the making of the Placement Orders applied for. Essentially (see paragraph 54 Re C):

"… the breach was not the decision to proceed to adoption, but the procedural failure in making that decision without consulting the mother";

and at paragraph 56:

"… it was a breach in the sense that things were not done according to the book".

107. It is contended on the mother's behalf that every procedural infringement is serious, and that the conclusion of a just procedure might have been very different. I note that the factual background with regard to the mother's circumstances in Re C bear some similarity with the current case. However, what is important from Re C is:

(i) the Court is required to place any infringement by a local authority in a spectrum; and

(ii) ultimately it is the Court and not the Local Authority which makes the crucial decision in these circumstances.

The Placement Applications relating to R and MF

108. I have applications for Placement Orders with Statement of Facts and Annex B Reports. R and MF's mother and father share parental responsibility in this case. The Agency Decision Maker of the Local Authority made the appropriate recommendation on 25^th February 2015, the Placement Applications being issued subsequently. The preliminary requirements of the Adoption Agency (Wales) Regulations 2005 as amended, and section 18(2) Adoption and Children Act 2002 have been established. I have jurisdiction to make Placement Orders under section 21(2)(a) Adoption and Children Act 2002 because R and MF are subject to Final Care Orders.
109. In accordance with the guidance given in Re B-S [2014] 1 FLR 1035 and Re R (A Child) [2015] 1 FLR 715, a pros and cons analysis of the realistic options has been undertaken by the Local Authority in schedule form, and by the Guardian attached to her report, and much of the evidence given has revolved around these issues. Adoption is to be regarded as a last resort where nothing else will do, see Re B (A Child) [2013] 2 FLR 1075.
110. I can only make Placement Orders, if the consent of R and MF's parents is dispensed with under section 52 Adoption and Children Act 2002. I can only come to this decision by applying the paramountcy of each child's welfare throughout her life, and by applying the provisions of section 1(4) Adoption and Children Act 2002. This section also has to be applied when I come to a decision which relates to R and MF's adoption, which includes the making of Placement Orders, and that is the combined effect of sections 1(1) and 1(7) Adoption and Children Act 2002.
111. The Local Authority's Plans for adoption must be a proportionate and a necessary response to the risk. In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611 examples were given in paragraph 30 of the kind of cases where intervention and permanence outside the birth family might be appropriate. Some of these features apply in this case.
112. The mother's counsel has drawn to my attention the recent case of Re A (A Child) [2015] EWFC 11 where the President reaffirmed some fundamental principles including:

(i) the requirement for evidential proof;

(ii) the requirement for a causal link between facts A, B and C if established, and the risk of harm feared, or actual harm sustained (X, Y and Z) to be demonstrated; and

(iii) the margin of diverse standards of parenting which a Court must tolerate, including the eccentric, the inconsistent, and the barely adequate.

113. Because there is a Plan for twin-tracking in this case (a time limited search for adopters and a contingency of long-term foster care) I remind myself that in accordance with the decision in Re M (A Child) (Placement Order: Authority's dual planning approach) [2014] EWCA Civ 1479, this type of plan (involving as it does a dual search/dual planning) does not of itself contravene the test set out in Re B above, and reaffirmed in Re B-S above. The "nothing else will do" approach is a process of deductive reasoning, as Ryder LJ explains in Re M at paragraph 34:

"It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child.  It is not a standard of proof.   It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child."

114. This process of deductive reasoning is described in greater detail in paragraph 33 of Re M itself. At paragraph 36 the following passage appears:

"It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit.  The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available."

115. As was said by Nicholls L in Re B [2001] 1 WLR 258:

"There is no objectively certain answer on which of two or more possible courses is in the best interests of a child In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child."

That process of peering into the future becomes even more speculative when considered in the light of "the child's welfare throughout his/her life".

116. In relation to dispensation in Re P [2008] 2 FLR 625 I must answer the question to which section 52 gives rise by applying the statute to the facts of the case, and the Order must be a proportionate and a necessary response. What has to be shown is that R and MF's welfare respectively requires adoption as opposed to something sort of that, and this has the connotation of the imperative. In relation to any defined Contact Order post-placement, the Court could make such an Order under section 26 Adoption and Children Act 2002.
117. The Local Authority's position is that reunification has been attempted in this case, with all its potential benefits, but objectively it has failed. The mother's difficulties became apparent so soon after the Care Plan was approved that it is unrealistic to expect a better outcome currently. The mother still has not accessed therapy and the timescales for the children are now urgent. The mother's behaviour – the likely harm to the children resulting therefrom – the mother's impossible relationships with professionals, and her continued cannabis misuse all point to failure in any reinstated rehabilitation attempt.
118. The mother's case was that the Rehabilitation Plan could safely be resurrected with safeguards. The mother's love for her children was an adequate protective factor. The concerns of the Local Authority could be overcome. If the mother worked with her mental health workers, with Dr Jones and her General Practitioner, and if the Local Authority were directed to reinstate the Plan for reunification by injunction under the Human Rights Act 1998, there would be no need for Placement Orders in this case. In any event, as an alternative, long-term foster care was still a preferable outcome to adoption in the circumstances of this case.

The hearing and the evidence adduced

The mother's conduct

119. The mother's conduct within the courtroom, and within the Court precincts during this Final Hearing, has frequently been unruly and disruptive, and the Court has been forced to balance her litigation right to participate in this hearing and hear the case put against her, and the right of other Court users (witnesses, advocates and Court staff) to attend and to discharge their equally important roles in safety and without intimidation. Frequently the mother has been tearful – sometimes abjectly so. That is perfectly understandable having regard to what is at stake. However, the mother has also been angry, sometimes immoderately so, indeed verging on the incandescent. She has shouted out and interrupted witnesses, for instance during Miss Freeman's evidence there was an outburst, "tell the truth Sarah". This was wholly unwarranted and potentially intimidatory. No witness (professional or lay) should be barracked or heckled in such a manner.
120. It was difficult to predict when the next outburst by the mother would arise. Sometimes she would leave the courtroom precipitately of her own accord when others were giving evidence, and sometimes while she herself was in the process of giving evidence, her conduct disrupting the course of evidence in general. I advised her repeatedly to leave the courtroom to cool down, if she felt herself losing her composure or self-control when listening to other evidence.
121. Since this advice was not regularly followed, I can only assume either she had little advance warning of such an episode, which she could recognise and deflect, or she was entirely lacking in any self-restraint whatsoever. There were occasions when I directed her to leave the courtroom, and on one occasion after a serious outburst I prevented her from returning to the courtroom because of the safety of others in the courtroom. The mother did apologise to me subsequently for her conduct and promised that such conduct would not be repeated. I accept that Court proceedings can be stressful, but often the mother herself was not even giving evidence, but was listening to others when an outburst occurred, usually because she disagreed with the evidence being given.
122. During this hearing on 9^th March 2015, a question about the mother's engagement with the Probation Service (in re-examination by Mr Sellars of Mr Connolly) led to an angry outburst directed at the Local Authority's counsel before the mother left the courtroom. She could be heard outside, quite distinctly and as she later admitted, beating the notice board in the waiting area of the Court in an extreme and uncontrolled manner. She could very easily have hurt herself.
123. On 10^th March 2015 there was an outburst by the mother during Miss Hardy's evidence, towards its conclusion.
124. The mother walked out of Court on 11^th March 2015 during her own evidence.
125. On 12^th March 2015, during the Local Authority's closing submissions in the afternoon, the mother caused her most serious disturbance (before today at least) when she screamed at the Local Authority's counsel, and completely ignored any attempt by the maternal grandmother and M's father to calm her down. She stormed out of the courtroom only to return moments later, screaming and shouting, before I rose and left the courtroom myself, when she eventually calmed down.
126. It was on the following day (13^th March 2015) that she apologised for her behaviour. That episode alone might well have resulted in recourse to the exercise of my powers under section 118 of the County Courts Act 1984, and such a warning was duly delivered to the mother.
127. During the hearing, the use of Court security men gradually increased. There were three at least deployed at one stage, in case of jeopardy to others in the courtroom. As a result of the mother's behaviour I made arrangements to deliver judgment today at the Combined Court Centre in Mold (with a security presence and a custodial facility) the facilities at the Family/County Court at Rhyl being inadequate to maintain Court order in these particular circumstances. That decision was fully vindicated by the events of today, when the mother was so upset and distressed by the announcement of my decision earlier that she has left Court – she has been taken by taxi to the maternal grandmother's home and medical assistance may be called for her. She has not returned to the courtroom in these difficult circumstances.
128. I recount these matters not to embarrass or to humiliate the mother, but to indicate that I am not limited in my assessment of the mother's behaviour and her likely reactions and future conduct by the evidence of professionals and lay witnesses. I have seen for myself what others have had to contend with. More critically, I put myself in the shoes of two young and vulnerable children – their fear upon exposure to such conduct would, I believe, be very significant indeed. The intervention of third parties, familial members, and prescribed medication for the mother had seemingly no obvious effect upon her behaviour whatsoever.

Therapeutic assistance

129. Dr Durand conducted her clinical interview on 15^th February 2015, although the mother's complete medical records only became available to her subsequently. The interview was conducted at the mother's home. I am quite prepared to accept from Dr Durand and Dr Jones, the mother's treating clinician:

(i) their diagnosis of the mother's condition;

(ii) the identification of the mother's prescribed medication for ADHD and borderline personality disorder, including antipsychotic medication and antidepressants, these being utilised to regulate her emotions;

(iii) the identification of the talking therapies, CBT or DBT, normally provided for 12 to 18 months, which might assist the mother to regulate her behaviour and conduct. This timescale is identified in Dr Durand's original report and initial replies to questions (see C81);

(iv) the diagnostic criteria identified in the mother's case, namely a pattern of unstable and intense interpersonal relationships, impulsivity, recurrent suicidal behaviour and self-mutilation, affective instability due to a marked reactivity of mood.

130. If the mother engaged in therapy her condition could be treated, but:

"…this depends to a large extent on the ability and intention of the patient to engage in therapy, and ongoing monitoring of their progress over a protracted period of time" (see C27 Dr Durand's report).

131. I was urged by the mother's counsel to accept, uncritically, the final two paragraphs of Dr Durand's report (see C28). This evidence is not confined to an expert psychiatric evaluation, but it touches upon other areas where I am not constrained to accept Dr Durand's opinion:

(i) I have seen for myself how the mother can behave when she is roused. The external constraints provided by adherence to social norms and expected courtroom behaviour, the familial support available to her, and prescribed medication were all without effect in modifying the mother's conduct. The mother had every conceivable reason to present herself most favourably in the courtroom. What better motivation, what more urgent motivation could there possibly be? Unfortunately she failed miserably to impress.

(ii) The mother was afforded an opportunity in June 2014 to resume the care of her children. It was essential that she was able to work collaboratively with professionals to achieve such a desired goal, and there was assistance afforded to her. Again, what better motivation could there be?

(iii)

(iv)

(v) The mother's behaviour, revealed by the numerous episodes identified in the Local Authority's chronology since June 2014, shows clearly that the mother's preoccupations overwhelmed the prioritisation of her children's needs.

132. According, and for these reasons I do not agree with Dr Durand with regard to:

(i) The mother's ability to engage with professionals and work with them in addressing her needs, and those of the children as they grow up. The IFSS assistance, as a component of the Rehabilitation Plan last year, was partly therapeutic in its nature, as the documents from that service indicate, but to no avail. Historically, the mother's engagement revealed by the chronology of medical records has not consistently been given by her;

(ii) The strength of the mother's motivation in addressing her problems is, I believe, more uncertain than indicated by Dr Durand;

(iii) The mother's capabilities in prioritising her children and ensuring that their needs are met on all levels, has not, in my judgment, been demonstrated;

(iv) The mother's engagement with the Community Mental Health Workers and Dr Jones alone could not provide a stable boundaried clinical milieu for the mother's resumed care of her children, prior to and during the mother's therapy, sufficient to safeguard the children from harm;

133. In any event, the unqualified interpretation of Dr Durand's evidence in this regard (at C27), urged upon me by the mother's counsel, does not coincide with Dr Durand's subsequent responses in writing to the Local Authority's supplemental questions on her report.
134. Due to the impulsive nature of the mother's presentation:

"… predications as to the mother's success are difficult to make" … "Intention and motivation are the main issues rather than the actual psychotherapy".

Accordingly, I believe that Dr Durand's definitive view is far more qualified and circumspect than contended for on the mother's behalf.

135. Furthermore, there are the practical issues identified by Dr Jones in his letter dated 12^th March 2015 to be overcome. The waiting list for the local SHARDS group is:

"… several months before she would be allocated to a preparatory group for introductory sessions, one a month for three months before progressing to the group itself".

Dr Jones continues:

"… The finding of ADHD accompanying this has meant that we have suggested together that we should wait until such time as her ADHD is better managed".

136. Accordingly, I have no idea of the actual timescales involved. The private access to such therapy referred to in Dr Jones' letter (bearing in mind the mother's financial means and unpaid Court fines) is, I believe, academic. There are several stages practically to be considered here:

(i) the actual availability of therapy;

(ii) the mother's potential progress dependant upon genuine engagement, motivation and intention; and

(iii) the testing out of any improvement by the mother, thereby safeguarding the children's interests.

137. There is no firm evidence that this process could be completed within the next nine months. I have no firm date whatsoever, so the timescale is entirely speculative. The children cannot wait on the mother; they have already waited for fifteen months or so in local authority foster care.

The other evidence adduced

138. A recurring issue raised by the Local Authority has been the mother's misuse of cannabis. Frequently (I have been told) social workers detected a strong smell of cannabis at the mother's home. The original Safety Plan (see B18) directed the mother not to drink alcohol/smoke or use cannabis "when she has care of the girls". Mr Connolly expressed concern about the effects this usage might have upon the mother's mood and behaviour, and its interaction with her other medication (although there is no medical evidence about this). The mother's friend, N, is a regular user. I have no information about how the mother acquires her cannabis, the quantity used and the financial impact upon her outgoings. Inevitably it risks further involvement with the Criminal Justice System.
139. More positively, it is accepted by the Local Authority and this was a feature of the original proceedings, that the mother's basic care of the children was acceptable and home conditions were good. The mother is well presented in her appearance, and it is to her credit that she contributes towards M's financial upkeep.
140. There is undoubtedly a bond between the mother and her children. The mother is assiduous in her attendance at contact, and often the contact is of good quality. That, as I have already described, however, is not unfortunately a consistent position.
141. The Independent Social Worker (a former respected Guardian) has completed a comprehensive report upon the mother. This includes an interesting section upon the extended family on the mother's side, her adult siblings and their circumstances. All of the mother's siblings, G, D and J appear to have their problems of one kind or another. The Independent Social Worker struggled to get the mother to see any correlation between her behaviour and any difficulties caused to her children. The mother's conduct after the Rehabilitation Plan was approved caused the Independent Social Worker concern. The mother's instability is likely to remain an inhibition to the provision of adequate future care by her, and there was no strong and identifiable network of support within the maternal family. The mother will be dependant upon social workers, with whom she has had her past difficulties.
142. I detected that Miss Hardy was somewhat surprised that the Rehabilitative Plan had been sanctioned at all, bearing in mind her opinion of the likely prospect of success. That was my decision and I must take responsibility for any error. Children who are not offered unconditional reliable nurture are likely to feel less secure and valued – that was Miss Hardy's evidence. That observation is included in her report and I must take ultimate responsibility for the failure of the Plan, and the impact upon these two children resulting therefrom.
143. Miss Hardy's conclusion (see C36) in paragraph 2.25 is as follows:

"I have reached a view that [the mother] is unable to regulate her antisocial behaviour and so she is not well equipped to manage her life in a calm and reliable manner. I predict that [the mother] cannot serve the needs of her two highly dependant infants if she is unable to manager her own life predictably".

Furthermore, Miss Hardy did not accept Dr Durand's suggestion that the mother could proceed with therapeutic work while being supported by her current mental health service provision solely, and without potential adverse impact upon the children. Miss Hardy believed that the demands of therapy upon the mother would require additional support for the children, support unavailable to the mother within her own family.

144. The mother in her evidence confirmed her engagement with Dr Jones and her willingness to embark upon therapy. She accepted that R and MF had been well cared for by Mr and Mrs P, and she was apologetic about her behaviour in Court:

"I can't sit there listening to people saying lies about me".

She accepted that M should stay with her father, "at this moment in time". She could never come to terms with the adoption of R and MF if that occurred:

"I just need my kids home, everything will be okay again".

145. From the mother's presentation during this hearing, I find it difficult to contemplate how on earth the mother could manage the heavy emotional demands of post-adoptive direct contact. She lacks the emotional resources to make this arrangement even tolerable for the children, without a significant risk of disruption. I do not believe the mother could ever accept a modification of her role in the children's lives. I accept there can be benefits in such arrangements, and these were mentioned by the Guardian.
146. The Local Authority (via Mr Connolly) told me that the Local Authority were open minded in this regard.
147. I would not make any Order, however, under section 26 Adoption and Children Act 2002 in the circumstances of this case.
148. The mother admitted her past difficulties with the maternal grandmother. She said "my mother and I are too alike". Nevertheless, she still identified the maternal grandmother, her Aunt T and her friend N as her main support, but accepted, "my brothers and family have their own problems".
149. The Guardian confirmed her opposition to the discharge of the Care Orders, and her support for the dual-track Plan of the Local Authority. The mother's plan for therapy lacked clarity with regard to waiting lists, and the mother's engagement and the timescale for therapy was uncertain. The children could not wait indefinitely and their needs were urgent after an extended period in foster care. The Guardian accepted Miss Hardy's analysis of risk, and further accepted that rehabilitation would not be in the children's interests. The mother's care could be good (the Guardian said) and at other times not good. There was a risk of emotional harm and an inability by the mother to provide safe care because of her lack of emotional regulation. It would be unsafe currently to return R and MF to the mother's care, and not in accordance with their welfare.
150. The Guardian accepted that there were benefits in a continuation of the long-term fostering arrangements by Mr and Mrs P. The children were well settled and this arrangement would sustain their familial links. However, such an arrangement, during the remainder of the children's minority, was on balance not the best outcome for the children. R and MF needed a permanent home outside the Care system, replicating ordinary family life, where they could form attachments with their permanent care givers. The uncertainty of long-term foster care and the distinct prospect of repeated future applications by the mother was not the best option for R and MF, that was the Guardian's evidence to me.

Conclusions

The application concerning M

151. It is in M's best interests, and it is agreed that she live with her father and have direct contact with her mother. It would not be safe for M to have this contact currently with her mother without supervision, at least pending therapeutic improvement by the mother. There should be a defined minimum contact provision for the mother set at once every fortnight for two hours, and during the intervening week indirect telephone/Skype contact. In addition there should be such other direct contact as the parents agree. The father will supervise the contact and the parents should agree a venue and times. The father, doubtless, will suspend any contact if the mother behaves badly, the father after all has done this in the past.
152. The Local Authority should assist with these arrangements under a Family Assistance Order for a period of three months.
153. I do not believe that a greater degree of frequency as a minimum provision would currently be in M's best interests:

(i) the mother's reaction to the Plan for R and MF is unknown, and the next nine months will be period of extreme stress for the mother, and she will be emotionally preoccupied;

(ii) the mother's resumed contact is still in its early stages with M, approximately five or so visits have so far taken place up to this Final Hearing;

(iii) the arrangements have not been tested without the involvement of the Local Authority, that is to say by the mother and the father solely taking responsibility and without the assistance of the Local Authority. It is still very early days.

154. I should note, however, that M's father has indicated his cooperation with regard to inter-sibling contact.

In relation to R and MF

155. I can deal with the pros and cons analysis in this case by my consideration of the applications, since they are directed towards particular outcomes.

Discharge of the Care Orders/Human Rights Act 1998 Applications

156. Discharge of the Care Orders with immediate return of R and MF to their mother's care, whether buttressed or not by a Supervision Order, and any continuation of the Order against W under the Family Law Act 1996, would in my judgment, be unsafe for the children. The original threshold findings retain their validity. The children would be at risk of emotional and physical harm in the manner I have outlined during this judgment already.
157. The mother's capabilities do not match the parenting role required of her, and the children's emotional and physical needs would be severely compromised.
158. It may have been an error last year to proceed with a Reunification Plan for two young children, where their mother had an untreated personality disorder. It was undiagnosed then – it is diagnosed now but it is still untreated.
159. I do not believe that an injunction/declaration under the Human Rights Act 1998 would be capable of providing a safe framework for rehabilitation. The mother would be waiting for her therapy and still subject to the external pressures which cause her to ignite (W, W's girlfriends, her own family, the Probation Service, the Police, unsympathetic social workers as she would unfairly categorise them), the usual vicissitudes of her everyday life. She would be unlikely to cope. There would inevitably be an incident or incidents, and I believe breakdown and failure and further damage for the girls would result. Mr and Mrs P may or may not be available to pick up the pieces, depending upon when precisely the inevitable breakdown occurred.
160. That is not in the best interests of these children on any foreseeable timescale. In my view, further rehabilitation is not a realistic option, or in their best interests in this case.

Placement Orders

161. For the reasons given already I would not make any defined Order under section 26 Adoption and Children Act 2002. This issue requires further evaluation once the mother's circumstances and the adopters' position becomes known.
162. I do not propose to quote the 'checklist' provisions under section 1 Adoption and Children Act 2002, but I apply them in the following way:

(i) R and MF are young children of the female sex;

(ii) They are too young to articulate their wishes and feelings;

(iii) They are settled currently with Mr and Mrs P and they are happy there, however, there is no reason why they would not be happy and settled with future adopters;

(iv) The children have a significant need (bearing in mind their young ages) for emotional security and stability in a nurturing home environment, with unconditional love and where safety and protection is provided;

(v) A future as "looked after children" would enable R and MF to retain familial links with their mother (albeit on a less frequent basis probably than currently) and with their sibling, M, with whom they have established bonds. The settled placement with Mr and Mrs P would be retained. Paternal contact is uncertain at best so far as R and MF are concerned, and harmful at worst. Other familial members are far less significant for both girls. Mr and Mrs P would, I anticipate, ease any immediate transition;

(vi) "Harm" is a feature of any reunification plan with the mother, but it is not a feature of long-term foster care;

(vii) The inter-sibling relationship of R and MF would be sustained, whether in an adoptive placement or indeed in long-term foster care. There is no suggestion of separation under either outcome. M's father would be anxious to maintain the inter-sibling links between M on the one hand, and R and MF on the other, post-placement. This may be feasible. M's father brings far less emotional baggage with him, since he has no familial connection with R and MF. That is likely to be a more fruitful avenue for contact if adoptive placements are found for R and MF. However, the Local Authority may not find it easy to identify a single placement for two children, and this issue of inter-sibling contact with M would not benefit from the making of an Order under section 26 Adoption and Children Act 2002 at this stage, but should be examined further when circumstances are clearer.

163. The loss of familial relationships referred to, has to be balanced with the potential gain of a legally secure, safe and hopefully stable adoptive placement. Adopters would view R and MF as their own children, and would be able to commit to them fully, providing them with appropriate and loving care, buttressed by the legal security of adoptive Orders. This would be a far more normal childhood than a childhood in foster care, even with such conscientious carers as Mr and Mrs P.
164. Long-term foster care would be more prone to breakdown, uncertainty and change, with repeated statutory reviews, local authority medicals, visits by social workers, and perhaps future applications for discharge or contact. This would not be ordinary family life.
165. Adoption would be more likely to promote firm and secure attachments for R and MF which would benefit them during childhood and into adulthood, and help them with future relationships and provide a template for their future capabilities as parents themselves.
166. Any adoption is intended to promote R and MF's stability and security, an essential pre-requisite for a happy childhood and as a building block for a healthy adulthood.
167. When looking at the longer term consequences throughout life, I have to assume that R and MF will acquire an accurate account of why they were removed from parental/foster care as part of their life history as they grow into adulthood. Any adopted child might of course, emerge into adulthood resentful of being removed from her birth family of origin and losing a sibling connection. I accept that in these circumstances this decision could destabilise, disable and disadvantage a child thereafter as an adult during his or her life. Much will depend upon R and MF's actual experience of adoption.
168. However, in this case my decision is prompted by an overwhelming imperative to promote R and MF's stability, security and safety during their childhood, and if the children have this knowledge available to them in due course, and applying their mature judgment, they are on balance I believe, more likely to accept my decision and emerge hopefully as secure and grounded adults themselves, who may well wish to re-establish birth familial links in due course in the future.
169. While I accept Mr Connolly's description of long-term foster care with Mr and Mrs P as a "strong option" in this case, on balance it is in R and MF's best interest (if it is possible) for a placement for adoption to proceed. Having considered the various factors both for and against adoption, reunification and fostering, I believe the balance decisively points to the requirement of a Placement Order as being necessary and proportionate, and required in the best interests of both girls in these particular circumstances.
170. It may be that England and Wales is unique in permitting the legal severance of family ties without parental consent, however, Parliament has authorised the Family Courts of England and Wales to make Placement and Adoption Orders where this promotes the welfare of children, in accordance with the Adoption and Children Act 2002, and the Convention. I full recognise that the severance of parental and familial relationships is always a serious step to contemplate, but in my judgment, R and MF's welfare, pursuant to the Adoption and Children Act 2002, requires such an outcome in the circumstances of this case.
171. On the basis that the Local Authority will apply for a revocation of any Placement Orders, if a placement of R and MF together has not been identified within nine months of today, I dispense with the mother and the father's consent, and I make Placement Orders for R and MF.
172. This Order has the effect of terminating the injunction against W under the Family Law Act 1996, which was itself dependant upon the currency of Final Care Orders. Parental contact for R and MF's parents is no longer regulated by section 34 of the Children Act 1989, and in any event, no Order under section 34(4) Children Act 1989 currently applies with regard to W, because that has elapsed.
173. It follows from what I have said already, that I dismiss the mother's applications for discharge of the Care Orders, now subsumed by the Placement Orders which have been granted, and I make no Injunctive Order under the Human Rights Act 1998, save for a Limited Declaratory Order. No award of damages is made. I conclude with regard to the declaratory relief that:

(i) The Local Authority's procedural breaches although serious (in the sense that record keeping is totally absent in this case, and the attempt to involve the mother in the decision making is wholly absent) are in the circumstances of this case, less damaging with regard to outcome than might otherwise have been the case. The reason for that is:

(a) The mother's involvement would in fact have made very little difference, because her conduct leading to the breakdown of the Plan was so serious, or alternatively she would not have engaged in any meaningful way, which would have altered the position in any event;

(b) The Plan had not in fact proceeded to overnight stays;

(c) The assessment process was, in effect, undertaken afresh by Dr Durand and by Miss Harding.

(ii) Accordingly, this case falls at the lower end of the spectrum, and in any event the ultimate decision has been made by the Court, and not by the Local Authority. It has been made by a judicial process involving the mother and full consideration of the salient features. An award of damages would not in these circumstances amount to a "just satisfaction", and no such award is made.

[Orders then announced].

End of judgment