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Family Law

The leading authority on all aspects of family law

30 MAR 2015

Re F (A Child) [2015] EWFC 25

Re F (A Child) [2015] EWFC 25
(Family Court, Russell J, 19 March 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports ​[2016] 1 FLR 593]

Public law children – Serious non-accidental injuries – Father found to have caused them and mother failed to protect – Whether a placement order should be granted – Whether the child should have ongoing contact with his birth family to maintain links with his cultural heritage

The full judgment is available below.


A special guardianship order was made in favour of the child’s current foster carer and indirect contact with the mother was approved in order for the child to maintain access to his cultural heritage.

The child, born in 2013, was of black African Congolese heritage. Both parents were from the Congo and spoke French. The child was born in England and at 4 months old he sustained serious injuries including brain injuries. A fact-finding hearing established that the injuries were caused by the father and that the mother had failed to protect him on a very serious level. The parents pled guilty in criminal proceedings and the father received a custodial sentence.

The local authority applied for a placement order in order to support adoption of the child by his current foster carer. Neither parent was in a position to care for the child but the mother sought indirect contact. The father sought direct contact. The parents opposed the placement order and supported the application by the child’s paternal great aunt for a special guardianship order which they felt would be a culturally more suitable placement.

Taking into account all of the evidence, the special needs of the child would be best met by his remaining with his current foster carer. However, all parties recognized the benefits of the child remaining in touch with the mother. There was no doubt it was in his best interests for contact to continue to enable him to have direct access to his cultural heritage. In those circumstances it would be confusing for him to no longer be a part of his family as a result of an adoption order. His welfare needs would be best met by making a special guardianship order in favour of the foster carer. There would be one goodbye contact via video before the father returned to the Congo. Contact with the mother would provide the connection with the paternal family which would best meet his welfare needs.

Case No: FB13C00266
Neutral Citation Number: [2015] EWFC 25

IN THE FAMILY COURT AT BIRMINGHAM

IN THE MATTER OF THE CHILDREN ACT 2002
IN THE MATTER OF F (A Child) (Born 01.01.2013)

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 19/03/2015

Before:

MS JUSTICE RUSSELL

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Between:

Birmingham City Council
Applicant

- and -

DM
1st Respondent
FI
2nd Respondent
- and -
I (A Child)(by his Children's Guardian)
3rd Respondent
- and -
MM
4th Respondent

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Ms Deirdre Fottrell QC (instructed by Birmingham City Council) for the Applicant
Ms Sarah Fahy (instructed by Brendan Fleming) for the 1st Respondent
Miss Annabel Hamilton (instructed by Green Solicitors Ltd) for the 2nd Respondent
Mr Timothy Bowe (instructed by Barbara Carter Solicitors) for the 3rd Respondent
Ms Kathryn Vernon (instructed by Anthony Collins Solicitors) for the 4th Respondent

Hearing dates: 24th and 25th February 2015

- - - - - - - - - - - - - - - - - - - - -


JUDGMENT

The Hon. Ms Justice Russell DBE
:

[1] This a public law case in which a fact finding hearing took place before King J (as she then was) who gave judgment on 6th February 2014 in which she concluded that three sets of serious injury, including brain injuries, which had been suffered by I as a baby were caused by his father and that his mother had failed to protect "on a very serious level".

[2] In this, the welfare hearing, the court has had to consider the long-term future placement of I, the subject child (born 1st January 2013). Birmingham City Council (the local authority) had applied for a placement order pursuant to s 21 of the Adoption and Children Act 2002 as part of their care plan which is to support an application for an adoption order by his current foster carer (C). The child's mother (D) and his father (F) oppose the imposition of a placement order and support the application of I's paternal great-aunt (Ms M) for a Special Guardianship order (SGO). The child's guardian supports I's long-term placement with his foster-carer but has recommended that it should be under a SGO which she believes would better meet his needs.

[3] The hearing took place on the 24th & 25th February 2015 at Birmingham Civil Justice Centre. All the parties were represented but neither parent was present in court. The court heard oral evidence from three social workers two of whom had prepared SGO assessments in respect of Ms M and the foster carer, and from the allocated social worker. The paternal great-aunt (Ms M) and the Children's Guardian both gave oral evidence. A reduced bundle had been filed with the court containing limited relevant documents from the original trial bundle and up dating material including the assessments of social workers.

Background

[4] The child I was almost two years and two months old by the time this case was heard. He was born prematurely at 33 weeks and had some difficulties particularly in feeding. It is not necessary for the purpose of this judgment to repeat the detail of the admissions to hospital and the injuries he received at the hands of F in early 2013 but when he was admitted to Birmingham Children's Hospital on the 18th April 2013 he was found to have fractures to his left and right legs; head and eye injuries including extensive bleeding in his head and brain and to his eyes; and there was some evidence of bruising and scratching. I was less than four months old when admitted from his parents' care to hospital. He was discharged on 11th June 2013 into the care of his current foster carer. He was not yet six months old and has remained with her since.

[5] As a result of the extensive injuries sustained while in the care of his parents he has significant global developmental delay caused by brain damage and he will require support from a multi-disciplinary team of professionals for the foreseeable future; as set out by counsel representing him through his guardian I has been seen and had his physical and cerebral difficulties reviewed by paediatricians, audiologists, an ENT specialist, an orthopist and ophthalmologist, a dietician, a dermatologist, speech and language therapists. I has been left with restricted mobility and sees occupational therapists and physiotherapists. He also sees his health visitor and his GP. The most recent medical report the court has seen (dated 23rd September 2014 and prepared by the medical advisor to Birmingham Children's Services) describes I as having eight health professionals involved in his care in addition to his GP. As is immediately apparent from that long list I has many medical problems which affect him; he is developmentally delayed, has hearing loss, difficulties with his vision, probable cerebral palsy, had previous head trauma and difficulties in eating and breathing normally (the latter affects his sleep).

[6] The report concluded that his motor delay is more severe than his cognitive delay putting the former somewhere between four to six months and the latter around twelve to thirteen months. However I am told that he has continued to make progress since that report was prepared when he was seen at Sutton Cottage Hospital in Sutton Coldfield on 4th September 2014. He was then described as a delightful child who was very interactive; a description borne out by the social workers who had seen him whilst preparing their report. I have no doubt at all that his continued progress and his happy and sociable demeanour is in large part due to the excellent care and affectionate stimulation that he has received from his foster-carer, C.

[7] I is of black African Congolese heritage, both his parents are from the Congo and speak French. I was born in England. He has lived with his carer since June 2013. His parents are not in a position to care for him and do not put themselves forward.

[8] In March 2014 they were both charged with causing or allowing serious physical harm to a child contrary to s 5 of the Domestic Violence, Crime and Victims Act 2004. They both entered guilty pleas and were sentenced in November 2014. F received an immediate custodial sentence of three years and four months; he remains in prison and refused to get on to the transport provided for him to attend court for this hearing. The prison was unable to accede to his request that he attend court for the full length of the hearing by video-link. F accepts that he will have a limited role in his son's life in future but strongly supports I being placed with his aunt Ms M. He rejects any possibility of a continued placement with C as he says she will not be able to promote a positive view of I's parents. It is likely that F to will have to return to the Congo after he is released from prison.

[9] I's mother D received a two year suspended sentence. She had left the UK on 21st January 2015 as her application to remain in the UK had been refused and she decided not to instruct solicitors to apply for permission to remain until the conclusion of these proceedings. Two assessments of D's ability to care for I were carried out in 2014 by Independent Social Workers reporting in June and August 2014. The first recommend further assessment which was carried out in the summer of 2014 and concluded that I could not safely be reunited with his mother.

[10] This second report contained some observations about the reluctance on the part of the foster carer to take an active role in the assessment and to assist with it. There were also observations of her negative and sometimes hostile view of D which did not assist the process of assessment although it must be said it did not affect the outcome. The "hostility" and "tension" between the carer and D seemed to involve the link worker and whilst it was recognised to be an issue it would seem that the local authority took little, if any, action to ameliorate the situation. This is a matter to which I shall return.

[11] I has been in the care of C for most of his life and has thrived in her care. She clearly loves him and has recently decided, after taking legal advice and discussing the matter with the local authority, that she would prefer that there is an adoption order rather than a SGO. C has always been adamant that whatever order is made she wants I to remain in her care and she is, and has been, very committed to him. A SGO report (undated) has been prepared on behalf of the local authority by Vinhod Verma , which supported a SGO being made in favour of C. Mr Verma produced two addendum reports dated the 8th September 2014 (following the concerns raised about C's attitude towards the parents and its effect on promoting a positive view of the his family for I in the long term) which recommend that there should be a Supervision order for 12 months to assist with contact and promote with the child's birth family.

[12] In the second addendum report Mr Verma was asked to deal with some further issues including the effect on I of C continuing her career as a foster carer which would mean other children being placed with her; the need for additional support for contact with the child's parents and family; meeting I's cultural and ethnic needs; and her support network to support the long-term stability of the placement. Mr Verma considered that his recommendation that there should be a SGO remained unchanged but again recommended a supervision order to ensure additional support for these areas which had caused some concern.

[13] I remain unclear as to exactly when the foster carer opted for adoption rather than a SGO. The application for a placement order was made in January 2015 and is dated the 16th January 2015 as is the final care plan. Having heard the evidence of the case social worker I am at a loss to understand the rationale behind the local authority's decision to make the application for a placement order, which is not, in fact, supported by the social worker allocated to the case, although I can see from the court bundle that adoption was being considered as an option in December 2013. Their case was put to this court as being largely based on the desire of C to adopt I; but she has not always taken that position, indeed she told Mr Verma when he was preparing his final addendum towards the end of 2014 that she would apply for adoption only if the court refused her application for a SGO.

[14] The court is being asked to decide whether I should be placed with his great-aunt and within his paternal family under a SGO or with C. If the latter the court has to decide whether it should be a placement order with a plan for adoption or under special guardianship. Contact with the parents will be limited in any event particularly if the parents are in the Congo. The guardian recommends a contact order in favour of Ms M if I is placed with C.

Evidence

[15] The court heard from Mr Verma, from Ms Leonora Green, the Independent Social Worker who prepared the SGO report on Ms M and from Ms Angela Solomon, the allocated social worker. All three of these professionals had spent a considerable amount of time on the case. All three emphasised the importance of I maintaining positive contact with his birth family, so that he has real and first hand knowledge of his Congolese heritage and to provide him with a positive view of himself as a child and, in due course, as an adult of black African Congolese ethnicity and background. The important role that contact with Ms M can play was something that all parties agreed would be in the best interest of his long term welfare and in the development of a positive self-image, both in terms of culture and identity.

[16] Ms Green and Mr Verma were both careful, measured and thoughtful when giving their evidence and I was impressed by them both as witnesses. Ms Solomon is an experienced social worker and a frank witness who, I considered, had thought about the case very carefully and told the court what she believed to be in I's best interests notwithstanding the contrary view put on behalf of the local authority. The Children's Guardian was a compassionate, calm and thoughtful witness; she believed that it was in the interests of I to be placed with C long term under a SGO. The court was left with a clear consensus of opinion on the part of all four that on balance that a SGO would be better serve I now and in the long-term than an adoption order.

[17] Ms Solomon eschewed any kind of intellectual dishonesty and her evidence was all the more compelling because she was able to contradict the conclusion of her final statement putting I's interests first.

[18] As to the evidence regarding the application for a SGO by Ms M the report of Ms Green did not support her application for the reasons that had been previously identified in the schedule 4 assessment undertaken by Ms Solomon in September 2014; in terms of Ms M's own health needs as she is on disability benefit for problems with her back and mobility and those of her son who is in his late adolescence and has been diagnosed as being on the autistic spectrum. He is also in receipt of disability benefit; as observed by both Ms Green and Ms Solomon it is not clear what role each plays in the household, not least who provides the support for whom as a person with a disability.

[19] Ms Green's assessment and report was comprehensive and thorough; I do not consider it to be necessary to set out her investigation in detail. Ms M did not co-operate fully with the investigation necessary in the preparation of a SGO. While it is understandable that she found the procedure both intrusive and onerous (it is both) it was evident to Ms Green, and to me, that her failure to ensure that the court had necessary information about her health and provide consent for background checks (DBS formerly CRO) betrayed a lack of understanding that went beyond incomprehension of the court process. Ms M did not seem to be willing or able to consider the need for information about her medical disability to be available in order for a decision to be made about her ability to care for a seriously disabled child in the long term.

[20] The reluctance to share information which was a feature throughout the assessment was carried through in Ms M's oral evidence. Her explanations for why she had not provided a medical report were inconsistent with her statement and changed even when in the witness box. Thus the court had no way of assessing whether she could manage to handle I who has limited mobility and for whom the prognosis is uncertain as he grows older, bigger and heavier. Of equal concern was her unwillingness or inability to reflect on I's needs and what she should do to meet them.

[21] Ms M failed to tell Ms Green about a previous involvement of Lambeth Social Services in 2008 with her son who was excluded from school on many occasions because of his behaviour. In her oral evidence she claimed not to have spoken about it because she had forgotten. I do not accept this explanation, her son had complained about physical chastisement at home and it is highly unlikely that she would have forgotten such an episode which was bound to be distressing and intrusive.

[22] Ms M is self-evidently a quiet and private person and not given to confrontation. This was evident in her own description of herself both to Ms Green and in evidence, and further illustrated in her reluctance to confront her son when he refused to agree to Ms Green approaching his college for information when his mother had previously said that he should. This raised questions about Ms M's ability to deal with her son should he object to any aspect of I living with them. As observed by Ms Green I would be likely to be distressed at moving from his carer and would vocalise his distress. When asked about this likelihood Ms M's son dismissed it by saying that when his mother baby-sat for his cousins they cried and it did not bother him, but I's situation would be quite different and would demand his mother's attention full time. The routine of the household would be disrupted and changed for good and there seems to have been little or no thought about how this could and should be managed.

[23] There was a need for Ms M to demonstrate an ability to deal with professionals, arrange the provision of support for I and, if necessary, to push for limited resources to be allocated to him. She did not do so. As Ms M does not speak much English (she speaks French) Ms Green suggested she investigate and start learning English to communicate with I (who understands English and has begun to speak it) and in order to speak to people involved in his care; as well as investigating signing classes (Makaton) as I a has hearing disability. Ms Green had observed during contact that Ms M failed to pick up I's cues and so missed opportunities for play and stimulation. The number that Ms M gave Ms Green for the signing classes was unavailable and there was no evidence before the court that she had taken up any English classes although she said she had. I found the lack of any initiative being taken even to identify facilities and resources that would be necessary to provide a similar level of support for I as he has with his current carer a matter of considerable concern. I am not surprised that Ms Green felt unable to recommend a SGO in favour of Ms M.

[24] Nonetheless there were positives which must be taken into account. Ms M has shown real commitment to I, she has travelled from South London to Birmingham to see him always at her own expense. She has paid to be legally represented to pursue her application. Ms M has shown real affection for I and she loves him. During contact she took advice and acted on it, for example by doing physiotherapy exercises with him. Overall Ms Green observed their contact to be rather flat and while content I was quiet and undemonstrative which indicated that he mirrored his great-aunt's behaviour towards him and is evidence of a lack of ability provide stimulation. Mr Verma, Ms Green and Ms Solomon had all commented on his vivacity and enjoyment of interaction with people. I looked for stimulation and play and Ms M was not able to provide it.

[25] All parties and the professional witnesses agree that Ms M has a continuing and a significant role to play in I's life as she can provide him with an important direct link with his family and cultural heritage. C has recognised this too and suggested that contact should take place 4 times each year. Ms M would like it to be more often and asked for once each month.

[26] The threshold in terms of s 31 of the Children Act 1989 (CA) has been crossed following the findings made by King J last year. I has remained in the care of the local authority being cared for by C. Neither of his parents put themselves forward as carers, indeed neither is in a position to care for I as D is now in the Congo and F will be in prison for some time to come. D accepts that she will not have direct contact with I and accepts the twice yearly indirect contact in the local authority's care plan. F wants direct contact. If that is not to take place and if, as is likely, he too returns to the Congo he would ask that there can be a video link before his departure so he can say goodbye to I. This has been agreed in principle. F has been urged to take up the indirect contact as a means of providing I with a letter which can form part of his Life-story work.

[27] Both parents support placement with Ms M because it is a family placement and, because they believe that it is personally and culturally a more suitable placement for I. F has said that he believes that C cannot promote a positive image of I's parents. Both parents have expressed concerns about this and it is an issue that was specifically explored and considered by Mr Verma in his assessment of C for the SGO report he prepared. F goes as far as to say that he would rather that I is placed elsewhere, with a stranger, rather than remain with C. To some extent he is supported in this stance by D. In this submission F reveals once more the selfish and self-centred attitude towards his son that King J referred to in her judgment. The excellent care that I has received from C is evident in the progress that he has made and the happy engaging little boy that he is; indeed, Ms M expressed her gratitude to the court for the care that C has given him.

[28] The children's guardian who is concerned with promoting I's best interests does not support a placement with Ms M although she understands why his parents would want it. As set out above she was an impressive witness and supports placement with C as being in I's best interests. She does not consider that adoption is the best form of permanent placement for I. The guardian is of the opinion that Ms M will be able to provide I with positive support as he grows up and with a real and continuing connection with his family and his African Congolese heritage; and that this arrangement should be reflected in the order made by the court. The guardian has recommended a contact order which sets contact between I and his great-aunt at a minimum level of four times a year.

Placement with foster-carer or great-aunt

[29] The first decision that I must make is whether this little boy should be placed within his paternal family with Ms M or remain with his current foster carer C. If he is to remain with C I will then have to decide whether his welfare requires an adoption order or for him to remain with C with a SGO made in her favour. To make this decision I must decide which of the two women is better able to meet his needs and to do so I have in mind the welfare "checklist" in s 1 of the CA.

[30] I have no doubt that Ms M is more than willing to provide I with a home and that she loves him. A family placement would be in I's interests, particularly his long term interests, as children should remain within their family; she would be able to provide a placement that was congruent with his cultural and ethnic background, which in turn will support him in understanding where he comes from and help him to develop a healthy self-image. As a boy who will grow up with multiple disabilities this will be all the more important to him as he reaches maturity. The importance of this connection for I with his family and his black African Congolese heritage has been emphasised by all the professional witnesses and is a view that the court fully endorses.

[31] On balance and notwithstanding the positive benefits of a family placement I have concluded that the special needs of I will be best met by his remaining in the care of his foster-carer C. I do not doubt the commitment shown by Ms M but there are questions that remain unanswered about her ability to care for I and how he will fit into her household. The questions include and concern her health and how that may impinge on her ability to care for I; her relationship with her son and his health; the ability of her son (now aged 17) to cope with the demands his young disabled relative will make of his mother as he has always had her undivided attention; the ability of Ms M to seek out, locate and enlist the support of the myriad support services and resources that I will need and her ability to protect I from his father should he change his mind and pursue direct contact with I when the local authority is off the scene.

[32] These questions remain unanswered largely because Ms M proved very reluctant to provide the answers. Ms Green and Ms Solomon both accepted that the process for assessment for a SGO is a lengthy and an intrusive one, as does this court, but it is necessary and most if not all applicants recognise this and provide the information about themselves and their circumstances so that the court can be satisfied that the subject child can be safely placed with them. Ms M's reluctance to engage in this process was palpable. This was evident in the manner in which she gave evidence, which was at times obdurate; not least in her contradictory explanations for why she had not taken the steps asked of her to provide a medical report. Ms Green told me that in the years in which she had prepared many SGO reports this was the first time that she had had the experience of there being no medical report in place at the final hearing. I have not had sufficient information to gauge whether, for example, the back problem for which Ms M receives disability allowance, will affect her ability to physically handle I (who cannot do much more than roll over at present) and to take care of his basic physical needs.

[33] The concerns raised about Ms M's son and his disability were as a result of patchy information based on previous investigation by their own local authority and a reluctance on the part of mother and son to provide any background that was comprehensive or up to date. Only on questioning while giving evidence did it emerge that the difficulties with her son's behaviour at school had continued until September 2014. I was left with no way of assessing how his needs and difficulties may affect the ability of his mother to look after I.

[34] I was particularly concerned by the lack of thought and preparation for I's placement that Ms M had carried out. He has more than an ordinary need for support and the active assistance of medical and other professionals and Ms M was so vague about her son's difficulties or any help and support that she had secured for him that I was left unconvinced that she would be able to make sure that I has the help and support he needs to continue the progress he has made whilst with C. Added to this is her inclination to lead a quiet and retiring life, a choice that cannot of itself attract any criticism from the court or from Ms Green but affects her ability to provide I with the interaction and stimulation which has served him so well to date.

[35] On behalf of D it was said that Ms M could provide good enough care, that may, just, be the case but this is a child who because of his difficulties and disabilities has more than ordinary needs and his welfare demands that he has better than average care. I's prognosis is uncertain but it is more than likely that he will require professional support throughout his life. He will always need someone who has the skill and the personal resources to successfully procure for him the support and services he will need; C has just that kind of determination and is a woman of resource and strength of character. These attributes were recognised by Mr Verma and Ms Solomon who both expressed the view that with increased limitations on the provision of care, social and medical services I needed someone who go out and fight for him. As Ms Green said in her evidence I needs a carer that is far more dynamic than Ms M is prepared to be; his carer will need to be a tenacious, perhaps a pushy, parent because of his needs.

[36] As I's foster-carer C has been more than assiduous in ensuring that the help and support he needs is in place. She takes him to all his many appointments and takes the advice she is given putting it to good use. C has developed a way of stimulating and interacting with I based on her real love and affection for him, as a result of which as observed by Ms Solomon, Ms Green and Mr Verma he is a generally happy child who looks for interaction and for positive attention. He has a close emotional bond with C; his guardian describes the emotional bond as being vital in enabling him to thrive. I am sure it is similarly vital to his development. I find that it is in the interests of I's welfare now and in future for him to remain in C's care.

[37] Before I turn to the law I will set out some further evidence that was before the court and pursued on behalf of I's parents. It is not disputed that there has been some hostility between C and I's mother D and that she has been negative about both parents. This is not surprising given the nature of the injuries sustained by I and the effect of those injuries which C has seen at close quarters daily. Her antipathy towards D was at its most obvious to others and observed during medical examinations attended by both foster carer and mother, and during the parenting assessment of D. At the time of the latter, for example, C was expected to teach D about preparing feeds (bottles) for I and was obstructive and unhelpful. She later seemed to refuse to assist in the assessment.

[38] It is, as observed by Mr Verma, quite unusual for a foster-carer to have the amount of interaction with parents that C did. I not see or heard any evidence about what support, advice and counselling was put in place for C to help her to deal with this in a positive and pro-active manner. I assume, therefore, that there was little, if any. I consider that it was unrealistic at best and negligent at worst, for the local authority to expect C to take on that role and to be an impartial teacher and supporter of D's parenting assessment. The lack of support for C and the unusual level of involvement lead to predictable antipathy which was visible to D and to those carrying out her parenting assessment. This has left a legacy of distrust and antipathy between the C and the child's parents which is a matter which I will have to keep in mind when considering what order may best meet I's welfare needs.

Law and analysis

[39] Placement order or Special Guardianship Order The court has heard no dispute as to the law to be applied in this case and I have in mind the test set out by the Court of Appeal in the decision in CM V Blackburn with Darwent BC [2014] EWCA Civ 1479 a decision which was made after the Supreme Court's decision in Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 and that of the Court of Appeal in Re B-S (Children) [2013] EWCA 1146. In her judgement in MH (a child) [2014] EWCA Civ 1396 Lady Justice Macur emphasised that the phrase 'nothing else will do' in the context of a care plan for adoption and an application for placement order, is not to be considered in isolation; noting in paragraph [8] that the test framed by the Supreme Court in Re B is that 'the orders are to be made 'only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests'.

[40] A placement order is made under s 21 of the ACA 2002 and as I have said I am satisfied that the conditions under s 31(2) of the CA 1989 are met as required by s 21(2) (b). In this case I am aware of the proposed identity of the adopter so I can consider the welfare of the child in respect of which order SGO or adoption or will better meet I's welfare needs with some specificity. In the Blackburn case Lord Justice Ryder considered those cases and set out at paragraphs 33—36 the five part exercise a court making a placement order must undertake;

a)It must undertake a welfare analysis of each of the realistic options for the child having regard to the factors set out in the welfare checklist.

b)this must be undertaken with reference to the benefits and detriments of each option.

c)It must then compare the analysis of one option against another.

d)It must decide whether an option protects the child's welfare throughout his life under s.1(2).

e)That analysis feeds into the s.52 and s.21(3)(b) evaluation set out in the Adoption and Children Act 2002 – the court when considering whether the parents' consent should be dispensed with, must consider its own welfare evaluation and whether the interference with family life of the child is proportionate.

[41] The welfare checklist, to which I must have regard, is set out in s1 (4) of the ACA which includes at s1 (4) (c) "the likely effect on the child (throughout his life) of having ceased to be a member of his original family and becoming an adopted person"; and at s 1(4) (f)

"the relationship which the child has with relatives … including

i) the likelihood of any such relationship continuing and the value to the child of it doing so,

ii) the ability and willingness of any of the child's relatives, or any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

iii) the wishes and feelings of any of the child's relatives, or any such person, regarding the child."

Section 1(2) requires the court's paramount consideration to be the child's welfare throughout his life.

[42] In addition counsel for the local authority referred me to the following authorities all for which pre-date the decisions in Re B and Re B-S; Re S (a child) (adoption of Special guardianship order) [2007] EWCA 54, in which the Court of Appeal gave guidance on the approach to be taken in cases where the court has to determine whether adoption or special guardianship is the appropriate order. Re MJ (a child) (adoption or special guardianship order) [2007] EWCA Civ 56; Re J (a child) (adoption or special guardianship order) [2007] EWCA Civ 55, in which the Court of Appeal upheld a decision to grant an adoption order to a grandmother; counsel relied on the fact that the mother continued to be resistant to the placement and that she was hostile and undermining.

[43] The Court had concluded that the framework of an SGO does not give total security or extinguish the parental responsibility of the mother and gave weight to the grand mother's long held view that adoption was the appropriate order. I reject counsel's argument that this court should attach weight to the long standing view of C that adoption was the appropriate order as that is not consistent with the evidence before me. Moreover if, as it is submitted, I am entitled to have due regard to the parents' hostility and its likely future effect on the placement then I can properly take note of antipathy of C towards the parents and to the effect that that may have on her ability to promote a balanced view of his parents to I and of his family as a whole forming as they do part of his heritage and ultimately his view of himself both in relation to his family and his African Congolese ethnicity.

[44] I do not consider there is a real possibility that the child's mother or his father will be in a position to make further applications to the court as she is in the Congo so there will not be that sort of disruption to the placement. F is likely to return to the Congo at the end of his sentence and will be unable to pursue any applications either. There is a need for finality in the litigation but it does not require a placement or an adoption order to bring that about; nor can that be the primary reason for making such an order; unless it is consistent with the child's welfare throughout his life.

[45] I has been with C since he was not quite six months old. He is entirely of black African Congolese heritage who was placed with a white British carer on a temporary basis and who has thrived in that placement. Given C's age and circumstances as a professional foster carer it is unlikely that a child would have been placed with her as a potential adopter. I am satisfied that C is realistic about her age and the age that she will be when I is still in his minority and that she has friends and family around her who will assist her. I am also satisfied that she will for a good few years to come manage I and other foster children who will be placed with her.

[46] Adoption legally and in fact usually entails a total break from the birth family; it is, as the guardian observed, extremely unusual for children who are adopted to maintain direct contact with the birth family. All parties, including the local authority, recognise the benefits to I of remaining in touch with his great-aunt. His placement with C makes the need for him to have direct access to his Congolese cultural heritage and black African ethnicity and to the Francophone community all the more important for his development, his sense of self and his place in the wider world as he grows up and throughout his life.

[47] Ms Green said in her report and in her oral evidence that contact is always the most difficult part of any placement and assessment for SGO. All agree, including C, that direct contact with the birth family in the person of his great-aunt and later other members of I's extended family should take place at least four times each year. The guardian identified in her report a concern which I share that the desire of C to protect I and to fight for him coupled with the negativity C has shown in the past towards his parents, may well lead to plans for contact not being carried through. Mr Verma recommended a twelve month Supervision order alongside the SGO to assist C and I; the implication was it was to provide support for C to provide for I to have contact with his family and culture. It is likely that disagreements could arise over contact and understandable that C may come to the view that it was not in I's interests that it continued; it is asking a lot of her. I have no doubt that contact is in I's best interests and that it must continue for the reasons identified by the professionals and set out above.

[48] When the social worker Ms Solomon gave evidence she frankly admitted that her analysis (as contained in her final statement) of what would be the best order for I was flawed and she had failed to give any consideration at all to a SGO in favour of C. She described C as having been on a rollercoaster over the choice between adoption and a SGO. Ms Solomon said that she had no concerns that F would destabilise any placement with C. She told me that on balance she would support the making of a SGO. Ms Solomon said that the beginning and the end of her reason for supporting the adoption order was that it was C's stated wish, but that shared Ms Green's view and agreed with her evidence that the facts of this case weigh against there being an adoption order; she told me that C had used the word's I "belongs to me" but agreed with the guardian that "in this case that I should belong to his family as that's of benefit to him too." It was better [for I] not to sever the links with his family and that an SGO placed with C was probably better.

[49] The need for I to maintain links with his family, his heritage, ethnicity and culture, will become more relevant and important as he grows. He will have continued contact with his birth family, which it is hoped will come to include other members of the extended family. In those circumstances it would seem inappropriate, confusing and lacking any semblance of reality for him to no longer be a part of his family; to have ceased in law to be a member of that family. His family have an important role to play in his development, not least in his sense of self and identity. Their continuing role in his life and their involvement will be of significant benefit and tangible value to him. This is, again, a matter that will grow in importance as the years pass and he grows and eventually enters adulthood. It will be of relevance and importance throughout his life. In this case the life-long welfare of this child militate against an adoption order.

[50] Contact order I have considered the guardian's evidence, which was not contained in her report, that she would recommend that a contact order is made. She said it was to provide a "blue-print" for C and Ms M and I understood her to mean that there was a need to underline the importance placed by the court on contact to take place as planned throughout I's life and for his benefit. There is no evidence that C has ever refused contact but nor has she ever been in a position to do so.

Conclusions

[51] It is submitted on behalf of the local authority that as this is not a family placement there is no distortion or skewing of the family relationships. I disagree there would be if I ceased to be a member of his family who are to continue to play a role in his life and provide a most important backdrop and context to it. Neither parent is considered to be likely to try to disrupt the placement; both are unlikely to be in a position to do so. I have applied the statutory provisions to this particular child and his circumstances and conclude that his welfare is best met by making a Special Guardianship Order in favour of C.

[52] I intend to make a contact order to emphasise the importance of the role of contact in the life and development of this child. It is too important, too significant a part of the plan for I's future welfare to be left to chance or depend on the good-will of the adults involved. It is a necessary order as the continuation and the progression of contact form part of the basis of this court's decision and a contact order reflects the imperative need for contact to take place. In addition, it will deal with the parents' contact and will provide support for C as any application for contact by either parent will be in the face of an existing order regarding their contact.

[53] There will be indirect contact only with the parents except for one video good-bye contact to be arranged, if possible, with F prior to his return to the Congo. His application for direct contact at present is wholly unrealistic there are no adequate or proper facilities for I to visit him in prison. To re-introduce contact after he is released, and if he does not return to the Congo, is not in the child's interests as it is difficult to see what purpose it would serve for I. He cannot safely be reunited with F and any contact would have to be professionally supervised. Contact is not supported by any other party. The contact that I will be having with his great-aunt will provide the connection with his paternal family which best meets I's welfare needs.

[54] This is my judgement.
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