IMPORTANT NOTICE
This judgment was delivered in
private. The judge has given leave for this version of the judgment to be
published on condition that (irrespective of what is contained in the judgment)
in any published version of the judgment the anonymity of the child and members
of his family must be strictly preserved. All persons, including
representatives of the media, must ensure that this condition is strictly
complied with. Failure to do so will be a contempt of court.
Case
No: NE16C00715
IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
The
Law Courts
The
Quayside
Newcastle-upon-Tyne
NE1
3LA
IN THE MATTER OFTHE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: A (A CHILD)
Tuesday, 9th May 2017
Before:
HIS HONOUR JUDGE SIMON WOOD
- - - - - - - - - - - - - - - - - - - - -
Re: A (A Child)
- - - - - - - - - - - - - - - - - - - - -
Counsel for the Local Authority: Miss Smith
Counsel for the Mother: Miss Sweeting
Counsel for the Child: Mr Kinkaid
Hearing date: 9th May 2017
- - - - - - - - - - - - - - - - - - - - -
APPROVED JUDGMENT
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JUDGMENT
HIS HONOUR
JUDGE SIMON WOOD:
1.
The court is concerned with the welfare of A, a boy born on 4th
September 2016 and so now aged 8 months.
2.
The local authority issued an application on 14th September seeking
a care order in respect of A and it now seeks a care order together with a
placement order in order to achieve permanence for A outside his birth family,
orders which are supported by A’s children’s guardian, Mrs McGuaghey and
opposed by A’s mother, M. She seeks an order, I think any order, that would
enable A to come and live with her.
3.
A’s father has never been identified. Three potential fathers named by
mother have not been confirmed on DNA testing. A fourth proved to be
impossible to contact so the local authority has drawn a blank in identifying
him.
4.
Why does the local authority say that A was likely to suffer significant
harm and that it is likely that it was attributable to the care provided to him
not being what it would be reasonable to expect a parent to give a child?
Sadly, the answer to this question is to be found in the mother’s diagnosis of
bipolar affective disorder, which, says the local authority, prevents her
from being able to provide safe and secure parenting to her son. That has
featured episodic psychotic symptoms, violence and aggression when unwell, as
well as making threats including to A, all of which are pleaded and accepted,
with the important qualification that these symptoms manifest themselves at a
time when the mother is unwell and not at a time when she is not and she is not
unwell for all of the time. Also pleaded are the facts that the mother was
detained initially under section 2 of the Mental Health Act from August to
September 2016 and then under section 3 from mid-September to mid-January 2017
and assessed as lacking litigation capacity beyond that date until relatively
recently. This is not therefore a case which is about threshold, which is
accepted. It is a case about outcome.
5.
I need to set some of the scene before coming to background. The mother
was born in 1992. Her mental health problems aside, the local authority
evidence points to her being a vulnerable young woman, who has been exploited,
particularly sexually. She did not enjoy consistent or stable care herself as
a child. She was not cared for by her mother from the age of 3 due to her
mother’s own mental health illness. She is said to have a similar diagnosis to
the mother. Instead, she lived with her father and stepmother until she was 18.
An intelligent girl, she did well at school and at college, as her public
examination results would indicate, and she had perfectly reasonable employment
ambitions, sadly, none of which were achieved. A same sex relationship seems
to have estranged her from her disapproving father. For a while, she worked in
the sex industry. Her lifestyle has been a transient one.
6.
Whilst the local authority assessment of her family support structure is
that it is limited and it describes the family dynamics as both strained and
confusing, depriving the mother of consistent, positive and stable support, the
mother in effect seeks to challenge that assessment and before me advances a
network of potential support available from her mother and siblings. Having
identified two separate alternative family carers at an early stage, a great
uncle, MGU1, and his wife and another great uncle, MGU2, the former could offer
no more than assistance as opposed to alternative care. Whilst the latter, MGU2,
did at one point indicate a willingness to care and was positively assessed at
the viability stage, he withdrew his offer on the basis of his own health
issues. That is something which appears to have resulted in a degree of
estrangement between the mother and him, which was particularly unfortunate as
he was a family member who had been noted to show commitment to the mother
during her long recent illness.
7.
The social worker, SW, carried out a very detailed parenting assessment,
which was completed in December. It noted many positives and I want to
emphasise them. The mother was well able to meet A’s basic physical needs, as
well as offer appropriate emotional warmth. She was described as “a caring,
proactive and confident mother” who was “aware of A’s needs,” was well able to
manage distress “with ease and confidence.” She was able to offer appropriate
stimulation in contact for which she was always well prepared, she had a good
understanding of the needs for and implementation of appropriate boundaries, as
well as the imperative of protecting A and keeping him safe. She also had a
very good appreciation of the need for, and importance of, stability. The
mother had other qualities that are very attractive and would also contribute
to her ability to meet A’s needs. Her own self-description is of a person who,
when well, is bubbly, confident, loving and caring. She has a strong creative
streak: baking, music, arts and crafts. Her caring side was very much noted by
the ward staff and social worker, where she was able on the ward to demonstrate
a good level of empathy and understanding of the emotions and sensitivities of
others.
8.
Set against that, however, the local authority also identified
concerning negatives. Since they flow in significant measure from her mental
illness, it is convenient at this stage to consider the expert evidence and the
context in which they fall to be considered.
9.
An initial report from the mother’s treating psychiatrist, Dr P,
presented to the child protection review conference on 6th September,
notes the trigger of this long episode, which followed the discontinuance of
her medication as far back as November 2015, which after a period of elevated
mood turned into a period of depression and an overdose. In fact, her
pregnancy was identified as she was being treated for that. There were
concerns of episodic dips in mood in March and then in May 2016 where her mixed
presentation was felt to be a response to the stressful situation in which she
found herself, being pregnant with the local authority plainly very much in the
foreground.
10.
However, then in August, she presented with manic psychosis, manifesting
itself with marked lability of mood, the complete refusal of medication, the
posing of a direct risk of physical harm to others and the posing of an
indirect risk of harm to herself and her unborn baby. She was not manageable
on the mother and baby unit. She was found to lack capacity to make decisions
in respect of her own and her unborn baby’s health and she was admitted under
section 2 of the Mental Health Act. That, it should be noted, was against a
background of significant admissions in 2011-12, 2012-13 and 2014, the second
two of those being for periods of six months or more where she was variously
detained under section 2 and then section 3 of the Mental Health Act.
11.
The diagnosis of bipolar affective disorder was made. She was found to
have demonstrated a poor response to antipsychotic mood stabilisers, albeit
responded well to lithium and it was felt that she was likely to make a recovery
with time. Dr P, however, highlighted several concerns. He noted that she had
never seemingly lived independently, when unwell had made serious attempts to
harm herself, including tying a ligature around her neck, attempting to set
fire to a house, threatening to harm another patient’s baby, as well as
overdoses. He suggested that there was a high risk of impulsive risky
behaviour when unwell. He noted the vulnerability that I have already
mentioned and concluded that she had to be considered to pose a risk to others
when manic. Whilst there was evidence that she had tried to protect her baby
at various stages, that had to be balanced against the overdose in January, the
use of cocaine in the third trimester of her pregnancy and he also noted a further
risk factor from the lack of a current reliable partner.
12.
Professor Turkington reported on 12th December at the request
of the court and he confirmed the diagnosis and noted that she then remained in
a state of hypomania. Whilst she was improving, he highlighted the fact that
this was her fourth admission since 2011, a strong genetic vulnerability
arising from her mother’s diagnosis and the fact that her condition had not
proved to be easily controllable. He said it was then resistant to treatment,
she was prone to relapse and these factors meant that she posed a risk to
others and her child and could not care for a child. He said that her
condition may come under better control, but the relatively poor response to
treatment, the genetic predisposition, as well as some episodic substance
abuse, placed her at high risk of further episodes. He then estimated that a
recovery would take six to twelve months, treatment would be lifelong and he
predicted further episodes of hospitalisation under the Mental Health Act
13.
By early March, her hypomania had settled, but she was suffering from
depression, what he called a “full house of biological symptoms.” He assessed
its severity as moderate to severe and noted that it necessitated on-going
treatment in hospital, albeit not on a compulsory basis. The antidepressant
medication was itself liable to trigger a further manic episode and so could
not be used. He noted that she had not then regained capacity and she remained
at high risk of relapse, with the accompanying risks already identified. In
fact, the mother rapidly regained capacity after that assessment and her mood
recovered, as Dr Q found about three weeks later and Professor Turkington
confirmed in his further evaluation on 13th April, albeit in
confirming that he repeated his warning as to the prognosis.
14.
This is, in the court’s judgment, the context for the negatives that the
local authority identified in the parenting assessment: the transient
lifestyle, the unsatisfactory partners, the variable financial mismanagement
that at times left her severely compromised and vulnerable and the episodic use
of elicit substances. It also directly feeds into the risk that significant
mental ill health of this type would create: the inability to maintain the
positives that I have set out here, the risk of harm that she poses to herself
and others, including, of course, A, the emotional non-availability that occurs
when she is unwell and the risk of harm from a lifestyle that has variously
included abusive men, sexual exploitation and drug use.
15.
Accordingly, the local authority concluded that her vulnerability and
significant history of mental ill health and the lack of a history of sustained
stability in all aspects of her life really from her own home through to everything
else pointed to an inability safely to meet A’s needs now or in the foreseeable
future, despite the obvious good qualities and her absolutely unquestioned love
for her son.
16.
The mother filed a statement. It was her first. That is not a
criticism. She was only first able to attend a hearing in these proceedings in
the middle of February. In it she explains her inability to respond to many of
the more concerning behaviours identified, some of which I have mentioned,
because of the simple fact that she has no recall of them. She says that her
more concerning threats would never have been carried out, but should be seen
as an expression of emotion. She admits that there has been drug use, involvement
in prostitution when she was 20 and she points to the fact that she was raped.
However, she also draws attention to the improvement that she has been able to
demonstrate in her health, her recognition of the importance of working with
mental health professionals, as well as taking her medication, which is now the
mood stabiliser, lamotrigine, because she recognises its importance in enabling
her to function as a mother caring for a young child. Accordingly, she argues
that, although the threshold is crossed, her past issues can now be managed
from a welfare point of view.
17.
Of course, care proceedings involve two questions. The first is are the
threshold criteria for making a care order under section 31 of the Children Act
satisfied? Secondly, if so, what order should the court make? The court has,
in asking the question that it posed at the beginning of this judgment, already
set out the relevant part of section 31 of the Act and indicated that it is not
disputed that the threshold criteria are satisfied. The findings that the
mother accepts the court must make lead inexorably to the conclusion that at
the relevant date when proceedings started shortly after A was born there was a
likelihood that A would have suffered significant harm were he to have been
placed in his mother’s care. Accordingly, this judgment needs to focus closely
on the question of welfare, the second question that arises.
18.
The risk identified by the local authority is heightened by its
assessment of the lack of support that this mother has. The mother’s own
account to the social worker was of her mother, brother and sister being her
main sources of support, yet it was the local authority assessment that
the mother herself was deeply upset by the chaotic support that had in fact
been offered. None of these three were regular, reliable, dependent supports
for the mother herself when she was ill and in hospital for so long.
19.
As I have mentioned, both her mother and brother each have a similar
diagnosis. Their care is overseen by the community mental health teams.
Whether that explains the inability of the social worker to identify a
consistent individual who has supported her rather than those who, as she put
it, leave her life as suddenly as they re-enter it, it is not possible to say.
However, it is the fact that none of those individuals have come forward during
these long months, despite the dire situation in which the mother has been and
every opportunity being afforded to do so.
20.
The mother points to the fact that her own mother has been stable in her
own health for a year or more. Despite not visiting her whilst on the ward,
explained by her own unhappy memories of it, the mother is confident that her
own mother would offer emotional and practical support. She says that her
brother has been stable now for ten years and has always been there and visited
her and her older sister has recently had a baby and would also be able to
help. She also suggests that after the distancing which arose when MGU2 withdrew
as a potential carer, that distancing has now narrowed and he would be able to
help, certainly during a period of transition from hospital, as would MGU 1 and
his wife as and when required.
21.
The issues that the court has to consider of course fall to be
determined on well-established legal principles, none of which are in dispute.
It is of course for the local authority to prove on the balance of
probabilities the facts upon which they seek to rely. It is also for the local
authority, since it seeks to have A adopted, to establish that nothing else
will do, having regard to the seminal causes of Re B (A Child) [2013] UKSC 33 in the Supreme Court and Re B-S (Children) [2013] EWCA Civ 1146
in the Court of Appeal. I remind myself that Baroness Hale in Re B
said:
“The test for severing the
relationship between parent and child is very strict: only in exceptional
circumstances and where motivated by overriding requirements pertaining to the
child’s welfare, in short, where nothing will do.”
That of course echoes what was said in
the Strasbourg court in YC v The United Kingdom in 2012, where the court
added that:
“Where the maintenance of family
ties would harm the child’s health and development, a parent is not entitled
under Article 8 to insist that such ties be maintained.”
22.
In considering the local authority’s application for a care order,
I must have regard to the welfare checklist in section 1 of the Children Act
1989 and, since the plan is for adoption, also the welfare checklist in section
1 of the Adoption and Children Act 2002. I must treat as my paramount
consideration A’s welfare throughout his life in accordance with section 1(2)
of the 2002 Act and, in deciding whether or not to dispense with A’s mother’s
consent, I must apply section 52 of the 2002 Act, as was explained in Re P
(Adoption: Leave Provisions) [2007] EWCA Civ 616.
23.
By agreement and at the suggestion of counsel on behalf of the
mother, this case has proceeded on the basis of hearing no oral evidence, but
the court has been addressed by oral submissions drawing the court’s attention
to specific aspects of the evidence. Miss Sweeting very succinctly set out
very clearly the issues for the court to consider. She pointed out that the
more worrying behaviour of the mother in terms of violence and threats of
violence are restricted to periods when she is unwell. She identified many
positive signs as at today in terms of clinical engagement, re-engaging with
her family, compliance with medication and those seeking her attendance. She
remains in hospital as a voluntary attender and is well on the way to stable management
and, consistent with that progress, her engagement with the court process has
been entirely appropriate.
24.
There are encouraging signs from contact, which is positive and
has been able to progress to the community. However, grasping the nettle of
health, she acknowledges that there is concern as to whether medication within
the community would be complied with, acknowledging that this is a lifelong
condition and therefore a requirement. She invites me to the view that there
is before the court sufficient material to reach the conclusion that enough
support could be placed around her for this to be manageable.
25.
The suggestion is made that in the first instance it would be
necessary for the mother to move to some form of supported accommodation. She
is not yet ready for discharge and, as matters stand, that has not been
identified, but I think the implication was it can be with appropriate support
from the local authority. Then there can be placed around her family support,
who will offer emotional and practical support. She has mentioned the three
family members I have already referred to, her mother, brother and sister. She
acknowledges that her uncle cannot offer 24 hour care or offer to care for
A if unwell, but nevertheless submits that these family members, who are all
sufficiently proximate, living in various suburbs of [town A] with the
exception of the uncle who lives in [town B], will be available. She
acknowledges that the mother did not put them forwards at an earlier stage, but
prays in aid her then state of mind in her illness. She also was obliged to
concede that, so far as the court process is concerned, they have not been
visible supporters. She therefore invites me to the view that it is here
possible to put together a package which can ensure that A can live with his
mother and be kept safe with all family members having their part to play and
being able to step in and assist as and when that is required.
26.
Miss Smith on behalf of the local authority, who addressed me
with very great sensitivity, acknowledged the mother’s undoubted and
unquestioned love for her son. However, she reminded me that the law is
concerned with neither blame nor fault, but what is best for A in terms of his
welfare and submits quite simply that the seriousness and intractable nature of
the mother’s illness is such that she simply cannot realistically meet A’s
needs. She cannot do so within timescales. He is a child who, as I say, is
now 8 months old. He needs decisions making for him. She points to the risk
that would be posed by the florid nature of her very worrying presentation when
she is unwell and the fact that the medical evidence points to the near
inevitability of further relapses. She reminds me that the mother was
self-harming as recently as February and, although wishing her well and not in
any sense seeking a finding of fault on her part, notes that she is currently
well cared for with an uncertain prognosis as to when she will leave hospital,
there being no discharge plan. Further, as yet, living in the community, which
will be a major challenge after so long, quite apart from the background, is
all yet to be faced.
27.
Mr Kinkaid on behalf of A associated himself with the local
authority’s remarks, but reminded me of some of the particular features of
Professor Turkington’s evidence to which I will have to come in a moment.
Really, the guardian found herself in exactly the same position as having to
highlight the severity and chronicity of the mother’s illness and noting that
the optimism for continued improvement nevertheless is qualified and cautious.
28.
This is a desperately sad case. It is, of course, always sad when the
court is asked to make orders of the nature that are today sought. That is
particularly so in a case where so many positives can and have been identified
and I do emphasise, as did Miss Smith quite appropriately, that the court is
not in any sense concerned with blame, but is considering the question of
welfare. It is the awful truth that this mother is suffering from a very
serious, enduring condition that has resulted in four very significant
hospitalisations in a relatively short period of time. Her most recent
hospitalisation continues today and has now endured for nine months, albeit
latterly on a voluntary basis, with no discharge date in sight.
29.
The prognosis, I am afraid, on the evidence is not a good one, albeit
there are early signs of optimism from the current response to her treatment
with lamotrigine, but Professor Turkington is extremely cautious in projecting
that forwards. In his letter as recently as 6th May, he noted that,
although her mood is currently normal, in bipolar disorder resistant to
treatment he said there would also be expected to be periods of time which can
last a number of months during which the mood is entirely normal and that is
the natural course of the disorder. Of course, I have already emphasised this
is the fourth period in her short adult life where it has endured for a number
of months. He also identifies a number of negative prognostic indicators for
stability: the genetic predisposition, the severity of the manic episodes which
have been particularly difficult to treat, the long periods of hospitalisation
and the use of the Act in order to enforce treatment. Thus, it is against that
background that his assessment of the chance of a degree of stability that
would allow safe and consistent parenting over the medium term he would put in
the order of 10 to 20 percent if there is continued evidence of positive response
to lamotrigine.
30.
I am reminded by Mr Kinkaid that, although the manic episode is over,
she presents, as I have mentioned, with the full house of biological symptoms
of depression, which themselves would pose a very considerable problem in terms
of caring for a child over its minority. Thus, the court is driven to the
conclusion that, as matters stand, this is a mental illness of an enduring
nature and of a severe kind.
31.
The ups and downs that have undoubtedly occurred therefore raise the
question of whether it is a manageable condition in terms of A and his being in
the mother’s care. The mother submits that there is a basis for finding that
there would be support from both family, those I have identified, and the
professionals, including her community psychiatric nurse, who unfortunately is
about to change, as well as the community mental health team. The court has of
course experience of this in other contexts. With a manageable condition where
they may be episodic periods of ill health, it is sometimes possible to put in
place a network of support that can variously monitor on a regular basis the
wellbeing of the person with the condition, identify at an early stage signs of
deterioration, make appropriate reports to the authorities when those signs are
identified and ultimately step in and take over the care of any child in that
person’s care. With an appropriate team in place, it is sometimes possible to
manage a placement in that way. For it to work, it requires a very tight,
close network of committed individuals because it is not small task. It is a
very considerable commitment from which there may be no respite at all. It
requires firm action to be taken in difficult circumstances. It needs someone
who can say to a mother, “You are not well. Your child will have to come with
me and stay with me until you are better.” It needs a mother who can and will
respond appropriately to such a direction.
32.
I have considered very carefully all that I have read and what has been
submitted to the court today, but there really is in the court’s judgment no
basis for considering that such a network can be created in the mother’s case,
certainly not from those who have been identified.
33.
In saying that, I point to the severity of this treatment resistant
illness, which in the court’s judgment is self-evident. A, if he had been an
older child, would have had to have had an alternative carer for the last eight
months with no timescales as at today as to when he might be able to go home.
Secondly, the mother’s response to challenge when she is unwell is itself
problematic as the history shows. Thirdly, I am afraid that her family members
have been near invisible. The local authority evidence points very
clearly to that and even now I have short letters from three of them, not the
individuals who wrote them, individuals who I have absolutely no doubt the
local authority would have loved to have seen during these long months whilst
the mother has been so unwell. Indeed, the social worker commented in the
parenting assessment of the lack of any regular reliable presence from any
family member who could be identified as a potential source of support in due
course.
34.
Fourthly, each of the family members has problems of their own. The
maternal grandmother has had an enduring mental illness and has felt
unable to visit her daughter in hospital, despite having apparently been well
for the last twelve months, because of her concerns about revisiting an
environment that has unhappy memories for her. Those unhappy memories are of course
understood, but in terms of prioritising her daughter and grandson, it is
hardly a promising start.
35.
So far as PU is concerned, he has a similar diagnosis, albeit is said to
have been well for ten years and been in regular touch. However, the
question has to be posed as to where he has been, why has he not made contact
with the local authority, why has he not put himself forwards having a unique
understanding of what his sister has been experiencing.
36.
So far as PA is concerned, it is thought that she has no similar
diagnosis. However, it is possible that she has been understandably
preoccupied with prioritising her own baby at this time and it is really very
unclear how she could give the commitment or be available for the type of role
that would be necessary in the short, medium and long-term.
37.
MGU2 withdrew from the process. I note that he lives in [town B]. It
is very difficult to see how he could fulfil the role of monitoring and
stepping in without being in close proximity to mother, who it is assumed will
be looking for accommodation close to where the immediate family are in [town
A].
38.
As matters stand, there is no indication from any of these carers that
they would be in a position to care for A in any event for what might be long
periods of time should there be a repetition of the type of illness that the
mother has experienced over the last few months.
39.
At the end of the day and stripped down to the basic essentials, the
question has to be ‘can A be safe in his mother’s care?’. When she is well, I
could have a reasonable degree of confidence that he will be, based on the
positives to which I have drawn attention. The real difficulty is what happens
when she becomes unwell. Plainly, the manic episodes would be very dangerous,
but the depressed mood that is described would also carry with it very
considerable risk and, since the high level of risk associated with further
episodes is such that I have already mentioned, it is clear that A would end up
being significantly co-parented by others and certainly, on the material before
the court, they would not be family members. In the court’s judgment, the risk
is one that is simply unmanageable, there are not practical mechanisms
available that can in fact be put in place, whether family or professional or a
combination of the two, that would safeguard A.
40.
Adoption is, as has been said, a drastic remedy. It is to be
contemplated only where nothing else will do. The court must reach the
conclusion that nothing else will do only once it has evaluated all the other
realistically available options and considered whether its concerns can
adequately be met by the provision of appropriate support services, whether
from the local authority or family and friends. I have taken into account what
is said by way of support that may be offered. However, I am afraid I am not
persuaded that they can provide the necessary monitoring, support and safety
mechanisms which A would need for him to be safe in his mother’s care and nor
can the local authority, however substantial the support may be in principle,
step in, in such circumstances.
41.
In that position, despite everything that has been said by the mother
and urged on me by Miss Sweeting, I am afraid I am driven unhesitatingly to the
conclusion that A’s welfare now and into the future and indeed throughout his
life demands that I grant the local authority the orders that it seeks. I am
satisfied that this is one of those sad and exceptional cases where nothing
else will do. There is in the court’s judgment no other outcome capable of
affording A the protection, security and stability that he must have from the
risk that has been identified. For the same reason, I am satisfied that his
welfare does require me to dispense with the mother’s consent to his adoption.
42.
This is not, I want to emphasise, a case where my decision is driven by
any sense of blame directed at the mother, still less by a belief that A will
simply have a better life if he is adopted. It is more fundamental than that.
It goes to the question of whether A can be kept safe and have his needs met
and the fact is that, in the court’s judgment, he will not be.
[Judgment
ends]
