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11 MAR 2015

Re S (A Child: No 1) [2015] EWFC 19

Re S (A Child: No 1) [2015] EWFC 19
(Family Court, Sir James Munby, the President of the Family Division, 6 March 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 203]

Public law children – Care and placement orders – Appeal – Retrial – Whether the child could be returned to the father’s care – Whether his welfare demanded care and placement orders to be made

The full judgment is available below.

Care and placement orders were made in relation to the 2-year-old child.

Care proceedings were initiated in relation to the 2-year-old child due to the father’s history of alcohol abuse and domestic violence between the parents. The parents allegedly minimised the local authority concerns and failed to engage with professionals. Following a serious incident the parents separated. The child was placed in foster care where he had settled well.

The father submitted that the child should be returned to his care under a supervision order. The local authority recommended adoption. The mother did not seek the child’s return to her care but did seek contact with him.

Care and placement orders were made. The father appealed and was granted a retrial.

Although the father had taken steps to address the local authority concerns none of those steps had tackled the root causes. To a significant extent the various improvements identified were based on his self reporting. It was clear that the father used alcohol as a coping mechanism and there was a good chance that he could do so in any future relationship, either with the mother or a new partner.

The sad reality was that the child was seriously emotionally and psychologically damaged while in his parents’ care. The judge did not have confidence that he would not be exposed in the future to repetitions of those incidents if returned to the care of the parents. The risk was unmanageable and too high to contemplate. The child’s welfare now and throughout his life demanded that care and placement orders were made. The judge was satisfied that nothing else would do.

Neutral Citation Number: [2015] EWFC 19
Case No: UD13C00173


Royal Courts of Justice

Date: 6 March 2015

Before :

In the Matter of S (A Child)

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Between :


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(2) F
(3) S (by his children’s guardian)

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Ms Claire Middleton (instructed by Northumberland County Council) for the applicant (local authority)
Ms Pauline Moulder (instructed by Yarwood and Stubley) for the first respondent (the mother)
Mr Justin Gray (instructed by Pearson Caulfield LDP) for the second respondent (the father)
Mr Thomas Finch (instructed by      ) for the third respondent (the child)

Hearing dates: 17-21 November 2014

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Sir James Munby, President of the Family Division

[1] This is the retrial of an application by Northumberland County Council, issued on 29 September 2013, for care and placement orders in relation to a little boy, S, who was born on 3 March 2013. The background to the case, the reasons why this is a retrial and the reasons why the case has taken so long to come to a conclusion are set out in a judgment given by Her Honour Judge Hudson on 29 August 2014 which I shall take as read: Re S [2014] EWFC B154.

[2] The hearing began before me on Monday 17 November 2014. The local authority was represented by Ms Claire Middleton, the mother by Ms Pauline Moulder, the father by Mr Justin Gray and the guardian by Mr Thomas Finch. I heard evidence, in this order, from the social worker, from the mother, from the father, from the father’s mother, from the father’s step-father, and from the guardian. Submissions finished at about 5pm on Friday 21 November 2014. I reserved my decision. Subsequently, on 25 November 2014 I notified the parties that I had come to the clear conclusion that I must make the care and placement orders sought by the local authority. Accordingly, care and placement orders in relation to S were made. They are dated 25 November 2014. I now hand down judgment explaining my decision. I am very sorry that it has been so delayed.

[3] The argument lay between, on the side, S’s father, whose plan was supported by the mother and, on the other side, the local authority, whose plan was supported by the guardian. Threshold was, rightly, conceded by both parents, though a number of crucially important factual issues which I need to determine were disputed, in particular as between the father and the local authority. The agreed threshold criteria are set out in a document dated 1 November 2014. The local authority’s schedule of findings it seeks is also dated 1 November 2014. The father’s response is dated 13 November 2014. Whilst it contains a number of important and significant concessions, the fact is that in some respects it is grudging in its acceptance of the true reality. For instance, and of some importance, he “denies” that he has “minimised his alcohol use.”

[4] The father argued that S should be returned to his care, subject to a supervision order. The local authority contended that S should be adopted. All other options had been ruled out at an earlier stage in the proceedings. Everyone was, correctly, agreed that these were the only two realistic options that I needed to consider. The mother, it should be noted, does not seek the return of S to her care, though she wants contact with him. She recognises that contact may require to be supervised, if need be by the local authority.

[5] There was no dispute as to the legal principles I have to apply. It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have S adopted, to establish that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. As Baroness Hale JSC said in Re B, para 198:

“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 else will do.”

This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

“family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, 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.”

[6] In considering the local authority’s application for a care order I must have regard to the ‘welfare checklist’ in section 1(3) of the Children Act 1989 and, since the plan is for adoption, also to the ‘welfare checklist’ in section 1(4) of the Adoption and Children Act 2002: see Re C (Appeal from Care and Placement Orders) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31. Likewise I must treat as my paramount consideration, in accordance with section 1(2) of the 2002 Act, S’s welfare “throughout his life.” In deciding whether or not to dispense with the parents’ consent I must apply section 52(1)(b) of the 2002 Act as explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

[7] For the background, I need do no more than refer to paragraphs 23-30 of Judge Hudson’s judgment. As will be seen, key issues in the case relate to the father’s history of alcohol abuse and domestic violence between the father and the mother to which S was exposed. This culminated in a very serious incident on 28 June 2013, following which the parents separated. However, the precipitating circumstances related to the mother’s new partner and not the father.

[8] So far as concerns the impact of this on S, the local authority’s case is encapsulated in its assertion that “during the first six months of his life, S experienced a chaotic and transient lifestyle with little routine and stability and where he was exposed to the aggressive, volatile and violent relationship of his parents” – this is accepted in much watered down form by the father – and its concern that S was “a passive baby who was not fazed or distressed by being with strangers or during the incident on 20 September” 2013.

[9] So far as concerns the father, the kernel of the local authority’s concerns is that he has used violence and aggression in his relationship with the mother; that he has struggled to accept his role in their volatile and violent relationship and that his actions and inaction during the first 6 months of S’s life caused him significant harm and exposed him to the risk of further harm.

[10] Before proceeding any further I need to focus on two aspects of the history to which both the local authority and the guardian appropriately attached considerable significance. The first relates to the alcohol fuelled and stormy relationship between the mother and the father. The second relates to the father’s engagement with the local authority and other professionals.

[11] The father, who was born in 1988, has a history of alcohol abuse and of offending, both going back to his early teenage years. On any view the two have tended to be linked. His last conviction was in May 2013 (see below). The mother, who was born in 1994, had a very troubled childhood. She was first arrested in May 2009 and has since had many interactions with the police. For present purposes I concentrate on events between 2010 and 2013. The account which follows, and which represents my findings, is drawn from information supplied by the police, from the father’s medical records, from other documents filed in the proceedings and from the oral evidence given by the mother and the father.

[12] On 3 July 2010 the mother was arrested on suspicion of assault occasioning actual bodily harm. She was convicted on 27 August 2010.

[13] On 6 July 2010 the father was arrested on suspicion of assault with intent to rob. The injured party is recorded by the police as having suffered a broken nose and severe swelling and bruising to his chest, arms, head, legs and face. The father asserted that the injured party had assaulted the mother, who was with him, by stabbing her in the bottom with a pair of scissors. No further action was taken.

[14] On 19 July 2010 (this was shortly before he was sent to prison) the father was seen by his GP:

“History: belligerent and angry, came for sick note, admits intoxicated (10am); on no benefits – all work test > fit for work. Mood very low, doesn’t feel life is worth living, looking at custodial sentence 1-2 yrs when goes back to court on 12th August.Drinking ‘a case’ (eg 18 cans carling) daily + vodka if he can get it – fills in day, helps the pain, helps him sleep. (this is ~240 u/wk) Little positive in life, no money, no home, says no future. Made dramatic remarks about hanging himself in his opening statement, but when challenged no firm plans, not made any attempts.Examination: slurred and drowsy. When anger settled, flat affectDiagnosis: Alcohol abuse.Plan: drinking heavily and formal pysch assessment difficult now, must be at some risk of self harm > asked to half alcohol and half again then consult for discussion re mood?… Duration of sickness certificate … 4 weeks”

[15] On 22 February 2011 the father was arrested on suspicion of assault occasioning actual bodily harm. The police record allegations that a verbal altercation arose after both parties had been drinking and that the father punched the other one in the face. No further action was taken due to there being insufficient evidence.

[16] On 26 October 2011 the police were called to a reported verbal altercation between the mother and the father. The police record that the father had become annoyed as the mother had returned home intoxicated after a night out. “No offences disclosed and no complaints made.”

[17] On 27 February 2012 the police were called to a reported verbal altercation which resulted in the mother grabbing the father by his testicles and the father then pushing the mother. The police found both of them to be “heavily intoxicated”. “No offences disclosed and no complaints made.”

[18] On 4 April 2012 the police were called to a reported verbal altercation between the mother and the father. The police found both of them to be “intoxicated”. The mother was removed and taken to a family member’s address. “No offences disclosed and no complaints made.”

[19] On 14 September 2012 the father saw his GP:

“Stress-related problemHad a chat to patient – came back with gf, diff started after on sick with mumps very angry with job centre – stopped money for a month so behind in rent now in debt partner pregnant tried to get job but not managed drinking heavily now + feels hopeless that no-one will help him, angry that not his fault has got into debt, low initially very angry but long chat + agreed needs to sort problems out not helping staying at home drinking agreed to see NECA to try and reduce/stop alcohol, not ready to talk to counsellor, encouraged to sort out situation with finances speak to welfare rights, see Neca + rev here note given for job centre.Depressed mood – pt not seem partner came concerned about him drinking heavily, feel sis low in mood not eating, refusing to talk about it/see anyone booked appt for him but wouldn’t come, tried to get mum to talk to him but not helped, partner 17 weeks pregnant, Plan chat with partner re help available where to go will try to get him to come down again for an appt, given info on neca + plummer court etc for alcohol.”

On 12 October 2012 he was stated to be “still waiting to hear from neca” but his GP recorded him as having “done well in last month reduced alcohol to 2-3 bottles a week.” On 7 November 2012 the GP recorded “done great stopped alcohol 10 days ago no drink since”.

[20] On 14 January 2013 the father took his step-father’s car without his consent and drove it whilst disqualified and uninsured. He was subsequently convicted and, on 22 January 2013, given a sentence of 16 weeks’ imprisonment suspended for 15 months.

[21] On 6 April 2013 the father was arrested for obstructing the police and is reported by them to have made a number of attempts to head-butt the arresting officers. Due to his “extremely aggressive manner” he had to be restrained. He was subsequently convicted and fined.

[22] On 19 April 2013 there was the first of the two serious episodes of domestic violence to which the local authority and the guardian draw particular attention. The police record that they were called to a reported verbal altercation between the mother and the father. The police found both of them to be “intoxicated”, the father “becoming violent towards [the mother] in the presence of S.” S was removed and taken to a family member’s address. “No offences disclosed and no complaints made.”

[23] Three days later, on 22 April 2013, the mother is recorded as giving the following account to her social worker:

“On Friday 19/04/2013, [the father] offered to care for S whilst [she] went out. When she returned [he] was very drunk having drunk a bottle of whisky with a cousin. [She] at this point had drunk 1½ glasses of cider and decided to stop drinking and resume care of S. She intended to go to bed immediately. [He] came into the bedroom and an argument began. [She] stated she was leaving to go to her own flat with S. She placed S in his car seat and as she tried leaving, [the father] pushed passed her and blocked her way; as he did so, he bumped the car seat and S fell out (fortunately onto the bed). [He] then took S and refused to give him back, when [she] demanded her son back, [he] kicked [her] in the ribs whilst holding S. [She] received minor bruising. [She] called Police and … went to stay with her mother”.

In the witness box the father did not dispute this account except for the mother’s description of him as having been “very drunk”. He told me that he had only a couple of doubles and was not drunk. He admitted that he had kicked the mother in the ribs as he was holding S.

[24] On 28 June 2013 there was the second, and much more serious, of the two episodes of domestic violence to which the local authority and the guardian draw particular attention. The police record that they were called to a reported verbal altercation between the mother and the father. The mother was recorded as having alleged that the father had “become physical” after returning later than expected from a night out, punched her to the head and face causing bruising and swelling and grabbed her by the throat causing red marks. The father was arrested on suspicion of common assault, but no further action was taken as the mother retracted her statement.

[25] Before calling the police the mother had in fact gone to hospital, where she “presented at Accident and Emergency with significant facial injuries: she has two black eyes, extensive bruising and swelling to her face and neck and is in significant pain.” She then called the police. On 1 July 2013 she was visited by her social worker, who noted that she “had visible injuries and bruising to her cheeks, eyes, neck and shoulders.” She said that the father had told her that he had taken LSD and Vallium.

[26] The full extent of what had happened was disclosed for the first time during the mother’s, and more particularly the father’s, oral evidence before me. The mother described herself as having been beaten up badly by the father. She described how he had punched her in the face. She said he had lost all self control. I accept her evidence, which in fact the father said in terms he did not challenge. The father accepted it had been a very savage attack. He had been out all night drinking, in public houses then, after closing time, in clubs ending up in a casino. The attack occurred when he returned home.

[27] On 22 July 2013 the father had a meeting with a social worker. He was recorded as being “challenging and not willing to discuss domestic violence stating it was in the past. He would not accept he abuses alcohol and minimised his usage.”

[28] Shortly after this, on 2 August 2013, the father had a meeting with another social worker. He was recorded as saying that he was “a social drinker and does not have convictions for violent offences.” He “disagreed that the incidents involving [the mother] were domestic violence.”

[29] On 5 August 2013 the father saw his GP, who recorded him as saying that “he does not take excessive alcohol or any drugs” and “is willing to take any tests to prove that he is not an alcoholic or drug addict.”

[30] On 20 September 2013 the social worker, accompanied by police officers. visited the mother and her new partner. S was there. According to the social worker (see her statement dated 27 September 2013) the mother was abusive, extremely angry, aggressive, threatening and volatile, screaming and shouting. S was removed. What is of particular concern is the social worker’s description of S:

“S presented as extremely passive and was completely unphased by this situation, showing no distress at all … S presented as pale, tired, heavy eyed and was extremely passive; despite the chaotic and aggressive manner in which his mother behaved, S remained unusually quiet and unphased which I found alarming given his age.”

I add that his foster carers reported that when S was placed with them “there was no structure or routine and they … needed to implement this.” In contrast, the social worker was later able to report (see her statement dated 17 January 2014) that S “presents as a delightful, happy and contented little boy who is thriving in the care of his foster carers.”

[31] On 9 October 2013 the father and the mother attended a looked after review. The father was recorded as being “not happy that he has been described as being the perpetrator of domestic violence” and as having “said he is not a violent person.” “He clearly does not acknowledge the concerns regarding domestic violence and the impact on his son.”

[32] On 10 October 2013 the father self-referred to Newcastle Talking Therapies (NTT). An initial telephone screening assessment the following day identified his presenting problems as “Longstanding anger and impulse control – worse since his son was taken into care.” It was agreed that he would benefit from GSH – a course of cognitive behavioural therapy based guided self help.

[33] On 11 October 2013 the father was tested by his GP. The scores indicated “severe symptoms of anxiety” and “moderate/severe symptoms of depression”.

[34] On 18 October 2013 the father was visited by the social worker as part of her parenting assessment of him (see below). She recorded:

“Concerns raised regarding [his] overall presentation: he appeared very tired, his eyes were much glazed and appeared unsettled, agitated and at times a little forgetful; his hands trembled uncontrollably. On one occasion I could smell stale alcohol. Although [he] was coherent I questioned whether he had been drinking alcohol; he stated his Probation worker also thought this but adamantly denied this to be the case. He stated he had simply had a tough day.”

[35] On 15 November 2013 NTT reported to the father’s GP that he had attended four sessions. Whilst in the first session he had scored “severe” for both anxiety and depression, by the fourth session he scored as “sub-clinical” for both.

[36] On 10 April 2014 the GP prescribed the father temazepam after he reported that he had not slept for a few days.

[37] Some time in April 2014 the father was questioned by the police about an alleged theft. No further action was taken.

[38] On 3 June 2014 the father again contacted his GP, initially by telephone: “very distressed … having problems trusting social services and legal profession … tending to stay in … needs sick note.” Visiting the GP later the same day, the GP recorded:

“extremely distressed and very tearful re current situation – feels injustice that son being taken for adoption, feels he could look after son who is 14 months old, worries about who will be looking after him, does not trust the system, social services mention his drugs in past but denies taking any for past year, also says his only mental heath problem is his distress at not being able to see and look after his son, has good friend who visits – he is apparently in same predicament, with problems of access to his child, mother in …, older brother who has schizophrenia and is homeless never seen, although tearful has good insight into situation, no thoughts of self harm, has been doing his research into law at the public library.Plan: thinks he will appeal the adoption but needs to reapply for legal aid which is being cut back, needs to stay in contact with solicitor, Psychological therapy declined … stress, 13 weeks, continuous since 8-5-14, to review when he feels the need to talk again.”

[39] On 17 July 2014 the father was taken to court for non-payment of under occupancy charges. A suspended possession order was made.

[40] On 11 September 2014 the father again saw the GP: “Denies drinking to excess – “I have a few pints occasionally with a pal but I’m not an alcoholic.’ Bloods reflect this – LFTs/MCV normal.”

[41] I turn to the linked issues of the father’s engagement with the local authority and other professionals and their assessments of him.

[42] The social worker’s parenting assessment of the father is dated 9 January 2014. It is a detailed and impressive document. There are a number of concerning passages:

“He stated after his son was born he was repeatedly ‘concerned for his son’s welfare due to [the mother’s] lifestyle’ stating ‘I had these concerns long before professionals did’. Despite this, [he] stated he chose not to alert professionals to these concerns, in fact taking the opposite stance in seeking to cut out professional involvement on the basis that it was ‘causing him and [her] stress’ and preventing them from parenting their son effectively. Whilst it is positive to state in retrospect that he had concerns, in reality, during that time, [he] was either minimising those concerns in any contact with professionals or simply not telling them. It is difficult to understand the paradox in [his] statements; on the one hand he states [she] is a “good Mum” and is to be “trusted”; on the other hand he expresses concerns about her “behaviour” and “attitude”. Whatever the explanation, [he] never expressed any of his alleged concerns to any of the professionals involved. In my experience as a Social Worker where there is dissonance between a person’s verbal statements and his behaviour, it is invariably the behaviour that is most reliable gauge of that person’s views.Regarding parents lack of engagement with the Child Protection plan and his unwillingness to alert professionals of his concerns for his son, he stated ‘I would never put my son in the eyes of Children’s Services for any reason’. I find this comment highly concerning; should his son be placed in his sole care, [he] will need to work with professionals and self-report any issues; historically, [he] and [she] have failed to do this and I cannot say without any certainty that this would happen given these comments. [He] appeared somewhat defensive and a little arrogant in his general manner when challenged on this issue; his answers were often contradictory and I felt he again lacked any real understanding and took no responsibility for his actions during this time. Initially he stated that ‘[She] was dishonest, I wasn’t’ and that he was ‘not a dishonest person’. I challenged this and brought to his attention a number of occasions whereby he and [she] had lied to professionals about their relationship and breached the contact plan; he responded ‘professionals never asked me’. He later admitted he didn’t work to the Child protection plan, that he did in fact breach agreements and that [she] and S were staying with him when they weren’t supposed to be but denied being dishonest about it. [He] stated that when [she] stopped his contact with his son and he was advised to seek legal advice, in his eyes, the contract with Children’s Services had ended. He stated ‘[She] offered me my child and I would never say no regardless of what plans were in place’ and ‘I would never reject [her] or my son from my home no matter who told me to do so’.”

[43] The assessment recorded the father’s account of his alcohol usage prior to his going to prison in 2010, by which time, he said, he was “drinking heavily”, and continued: “He stated that whilst in Jail, he managed to overcome his alcohol issues with the necessary treatment programme … and states that there have been ‘no further issues with alcohol’.” Pointing out that this was contradicted by other information, the social worker observed:

“I am unsure as to the reasons why [he] failed to mention this information; and raises questions around his honesty and validity of the information [he] has shared in this area of this assessment.”

She continued:

“What is evident however is that when all this information is married up with the factual information available; a history of violence, aggression and driving offences, the last recorded incident being as current as June 2013 the majority of which have been alcohol fuelled, concerns raised at the Initial Child Protection Conference with Newcastle Children’s Services in July 2013 that [he] minimises his alcohol use and does not see the concerns as other do and indicators in discussions with [him] such as ‘I don’t drink at all now … I don’t feel like I need a drink … I don’t go out drinking with friends and will go alone as I’m too scared of getting into trouble … If I feel like having a drink I will go to Davy’s house as I feel safe, he keeps me on the straight and narrow and will make sure I only have a few’, I have no other option other than to consider this issue needs to be considered when assessing [his] ability to provide safe care to his son. I therefore draw the conclusion that [he] may have unresolved issues with alcohol and that with a lack of evidence to demonstrate his understanding into the above factors, could potentially place any child at risk of potential harm in his care.”

[44] In relation to the issues relating to domestic violence, the assessment records the social worker’s discussions with the father in respect of what had happened on 21 April 2013:

“[He] denied reports that on the 21/04/2013 that he had drank a full bottle of whiskey whilst caring for S that night; stating ‘I had a few drinks and was merry but was in control of my actions’. He stated he remembered cradling his son in his arms as [the mother] was being ‘ridiculous and was trying to snatch S from me in the early hours of the morning’, that [she] was ‘winding me up stating S wasn’t mine’. He stated ‘at the time I didn’t see it, I would never harm my son and should have used different techniques and could have walked out the room … I should have let [her] leave with our son’. He stated ‘I was young and stupid back then’ and stated that ‘I didn’t harm my son that night but I accept I shouldn’t have drank’. There was no acceptance from [him] into the immaturity within their relationship and the impact of their dangerous behaviours being displayed in front of their son. [He] showed no responsibility for his actions that evening other than he shouldn’t have drank alcohol, often placing blame on [her] actions and behaviours as a justification for his violence. Whilst [he] was able to recognise that he was wrong to have drank alcohol whilst caring for his son stating ‘he could have fell over, fell asleep, may not be fully alert and may not have been thinking clearly’, he was of the firm opinion that he had not harmed his son that night and lacked complete insight into the fact his son would have been terrified, was caught up in the altercation falling out of his car seat and could have been seriously harmed. He showed no understanding of the emotional impact on S.”

[45] Dealing with the events of 28 June 2013 the social worker recorded that conversation with the father remained “limited” and his responses “vague”, the father saying that he could “only remember bits”. The assessment continues:

“I discussed with [him] the Transfer in Conference in October 2013 in which significant concerns were raised that he minimised his violent behaviours stating ‘everyone gets stressed when they are pushed and that [the mother] had pushed him’; he repeated ‘I have come a long way since then’, that he ‘understands this all now’. Again I probed [him] around this understanding he stated he had and what he considered the risks to his son to be; he struggled with this question and became a little agitated and defensive. With further prompting he stated that his son ‘would have heard a noise … he would have been upset … I am still working on this, I’m not fully sure … I can’t push myself too much’. [His] account of exactly what has changed in his understanding of domestic violence in any detail remains vague and superficial. I suggest that with a lack of evidence to demonstrate his understanding into the above factors, places any child at potential risk of harm in his care.”

[46] Summarising her views, the social worker reported:

“I explored with [him] whether he thought his son had been harmed in any way by his experiences; [he] replied ‘he has only been around this once, is too young’ and that he hoped he ‘hadn’t been harmed.’ There was no recognition from [him] to the fact that his son was in fact witness to 2 serious incidences of violence that we know of, one of which he was physically caught up in, knocking him out of his car seat where he could have been seriously hurt. There was also no understanding or acknowledgement into the emotional impact on his son having witnessed these violent incidences or that he would have been terrified by what he was witnessing, and he was unable to demonstrate an understanding into the associated factors connected with domestic abuse.”

[47] On 10 February 2014 the father’s probation officer produced a progress report in relation to his suspended sentence. It includes this passage, as revealing for what it does not say as for what it does:

“[He] has never been convicted of an offence of domestic abuse, however, he is honest in his account of his past relationship with … the mother of his son. He accepts that the relationship was both physically and verbally abusive and says both parties were abusive. In discussing his behaviour to [her], [he] admits that he believed he only had [her] best interests at heart and at the time felt that he was trying to protect her. There has also been at least one occasion when [he] assaulted [her] when he was intoxicated, he maintains that this was a mutual assault. This did not result in a conviction.At the commencement of [his] supervision with Probation he presented as being quite rigid in his views about domestic abuse, however, I am of the opinion that although some of his views were rigid, for the main his opinions appeared more due to a lack of understanding about domestic abuse. After lengthy discussions about his behaviour, and [his] apparent honesty about his relationship with [her], in which he acknowledged he had been abusive and/or controlling on a number of occasions; he agreed to undertake some detailed structured offence focused work surrounding his abusive behaviour. From the start [he] presented as being eager to gain a better understanding into his own behaviour and the impact of that behaviour on [her] and their son.”

[48] The social worker’s addendum to her earlier parenting assessment of the father is dated 26 September 2014. In relation to domestic violence she said this:

“Regarding domestic violence, [he] stated he ‘now accepted his actions were inappropriate’ and his issues were ‘now fully resolved in this area’.In further exploring his role in this violence following the completion of these courses, [he] stated his relationship with [the mother] was ‘far from usual’ but that he ‘tries not to beat himself up about it’ as he ‘can’t change what has happened’. Reflecting back, he states he ‘should have dealt with it better and taken breaths’. [He] seemed ambivalent regarding his role in this violence and I feel he still struggles to comprehend his actions were not valid; on one hand he stated he ‘accepts responsibility for his actions, should have dealt with the situation better and has since apologised’ to [her], whilst on the other hand describing his response being due to [her] being ‘equally to blame, grabbing his testicles, accusations that S was not his child and sleeping about with other men’ as a defence for his actions.Following the completion of the Solo Programme, [he] demonstrated general knowledge of the impact of domestic violence upon children. [He] was able to demonstrate that children can be affected by hearing or seeing arguments and fights between parents that could impact on a child’s development both socially and emotionally and that they may grow up thinking this behaviour is normal. Reflecting back on this violence, [he] was unsure as to whether his son came to any harm when caught up in the altercation where he fell out of the car seat and it was only when the physical risks and the fact he would have been terrified were pointed out to [him] that he was able to accept this.… Whilst [he] states that he has changed and he would utilise everything he has learned to ensure there would be no further violence in any future relationship, this is an area we have been unable to test out within the context of previous or current court process; his ability to manage a safe adult relationship whilst also caring for a child. The level of violence previously documented to the courts was significant and this remains an untested area.”

[49] She also said this:

“When asked what had changed and what he could do to reassure Children’s Services that he would cooperate with professionals, he responded by saying ‘I have changed’ and ‘I’m working with you now’ and ‘I’m letting you speak’ and made it clear that his engagement would be predicated on how he was spoken to by a worker and questioned our commitment to working with him. [He] did not acknowledge or agree with Children’s Services in this regard and I was concerned that his acceptance of professional involvement appeared to be very much on his terms. [He] said that he would welcome support, fully engage with professionals and services and listen to the advice given but would not necessarily act on this advice. When this was further explored, [he] stated that he had been given, at times, conflicting information from different parenting workers on how to manage a given situation but stated that the priority would be S’s safety. [He] stated that people tend to take him the wrong way and perceive him to be aggressive when he is in fact being assertive. I would contest this view however as there has been a number of professionals who have found [him] to be opinionated to the detriment of accepting advice and so this area remains untested in the face of a possible rehabilitation of S to the care of his father.”

[50] Her ultimate conclusion was this:

“[The father], to his great credit, has continued to be proactive in terms of his learning and to better himself as a parent. Impressively, he has acted autonomously in accessing and completing a course in domestic violence and anger management as he perceived that other people were recognising something in him that he himself was unable to see. However [his] own accounts of what he has learned suggest he is not yet able to deal with accepting responsibility. It is also commendable that his parents are able to offer a high level of support and have provided some very insightful information into [his] functioning and areas in which they feel he needs support.Given the lapse of time that has now taken place, it is evident that [he] has made progress and it would be unfair not to suggest the possibility that [he] would be able to provide good enough parenting to his son should the Court decide that a rehabilitation plan would be the most appropriate course of action. Based on the information to date, the risks of rehabilitation not being successful are high but [rehabilitation is] not entirely ruled out. [He] has utilised the time that has passed since the last proceedings in a way that has benefited his understanding of the responsibilities of parenthood in addition to examining his own behaviours. However the main obstacle to this view, is that this learning, through no fault of [his] own, has been theoretical. The elements which have been discussed within this addendum are, for want of a better term, untried or academic.The success of this would depend on honest communication from [him], a willingness to meaningfully engage with professionals and services, accept support and take advice on board, maintain his relationship with his family and engage fruitfully with Children’s Services. However during this assessment process, I have not seen consistent examples of these; for instance, in respect of honest communication, he has not divulged his arrest in April 2014 nor has he divulged the full extent of his housing problems. In respect of meaningful engagement with professionals, this remains uncertain given [his] own accounts indicating he would only engage on his terms.… it is evident [he] has made progress but I am not of the view that it is sufficient to warrant delay and upheaval for S to further test out [the father] in what would essentially be a long period of time without the reassurance of a positive outcome. There are concerns that a rehabilitation, which may not be successful, would result in S being emotionally damaged by this process and his need for stability and security not being met. There are significant concerns that S is now 18 months old and his need for permanence cannot be progressed until these matters are decided through the Court process. S’s needs are the priority and his need for permanence should not be any further delayed. Therefore in my view, it is not in S’s best interests to be rehabilitated to [his father]’s care.”

[51] The social worker’s final statement dated 10 October 2014 was to much the same effect. Her central concerns in relation to S were expressed as follows:

“he is currently settled and remains in placement with potential adopters. However, his care has required more than average levels of nurturing, reassurance and consistent routines to reassure him and to help him develop good sleep routines and manage some of his anxieties … he is making good progress as a result of the consistent care he is receiving.… Given the option of a long period of rehabilitation for S to the care of his father, without a guarantee of a positive outcome, the Local Authority are of the view that disruption and delay presents too high a risk for S given the information within both the previous and updated Parenting Assessment.… There are significant concerns that despite some changes to [the father’s] circumstances, the success of a rehabilitation plan remains doubtful based on issues around [his] engagement, honesty, past relationships and his capacity to make changes in areas which can be sustained for the duration of S’s life. His ability to work meaningfully with professionals to support him in achieving this remains of concern and is untested.”

[52] In the witness box the social worker summarised her concerns about S under five headings:

(i) the risk of domestic violence, whether his parents were together or not;

(ii) the risk of exposure to the consequences of alcohol and drug abuse;

(iii) the failure of his parents, together and individually, to prioritise his needs;

(iv) his parents’ propensity, whether together or separately, for volatility; and

(v) their inability to work openly and honestly with the local authority.

Her evidence was that, in her opinion, the risks remained and were likely to continue. She voiced concerns as to whether, if S was returned to his father, contact between S and his mother could be safely managed. She was obviously sceptical.

[53] The local authority’s final care plan, also dated 10 October 2014, notes that S has:“more than average levels of emotional anxiety and requires well established routines, a high level of consistency, nurturing and reassurance.”It records the view of the independent reviewing officer (IRO) as being in agreement with the local authority’s plan for S and that:

“in light of ongoing concerns highlighted in both the previous Parenting Assessment and the addendum Parenting Assessment … a rehabilitation plan with a high level of significant disruption and potential risk of failure would not be in S’s best interests.”

[54] The guardian’s report is dated 4 November 2014. The guardian, in common with the IRO, supports the local authority’s plan. There is no need for me to go through her report in detail. I draw attention to these passages:

“A return to his father’s care would in all likelihood involve a rekindling of S’s relationship with his mother and probably her extended family. This might lead to the possibility of renewed parental tensions and thus distress for S if his parents could not, in the longer term, negotiate consistent and safe contact arrangements for their son.… Love and affection are very important but for children with more complex histories, such as S, this is not enough. They require parents who are able to identify and then meet their more extensive emotional needs.… At this stage I am not confident that [the father] is able to understand and meet those needs despite his real wish to do so. S does not have the time for [him] to show that he can develop and use the necessary parenting skills.”

[55] In her oral evidence the guardian said that she remained of that view having heard all the evidence. She expressed particular concerns about the severity of the major episodes of domestic violence, in one of which, as she put it, a very young baby had been caught up. She explained that because we cannot understand the major triggers for the father’s behaviour, we cannot be confident about his future relationships. The father’s abilities were largely untested. The mother was unpredictable and the guardian did not think that one could manage all the risks that contact with her might involve. Overall, she did not think there was a reasonably good prospect of success for S if he was placed with his father. It was “not a chance that should be taken.” She was not confident, she had “real doubts”, there was “considerable risk.” She emphasised that any move for S now must be the final move.

[56] The father’s position at the outset of the hearing was summarised very clearly in Mr Gray’s position statement: “He fully acknowledges his past poor behaviour [but] since summer 2013 he has transformed his life, undertaken and learned from a great number of courses to address his attitudes and ability, [and] gained experience and insight into [S’s] needs”. Mr Gray’s closing submissions were set out in helpful detail in a document dated 21 November 2014. So far as concerns the law, I accept Mr Gray’s submissions. I have already set out the approach I must and do adopt.

[57] A centrally important component of Mr Gray’s submissions is the proposition that the focus of the local authority’s concerns and proposed findings is the events of 2013 and beforehand, that I must, as I accept, look at all the circumstances as they pertain at the date of the hearing, and that, as I have already noted, circumstances now are, so Mr Gray would have it, very different and much improved from the circumstances in 2013.

[58] In seeking to make good that proposition, Mr Gray has analysed, very carefully and in some detail, the facts and the evidence. I have very much in mind everything he says, as indeed all the evidence, both written and oral.

[59] I accept, as indeed does the local authority, that the father has since 2013 taken steps to address his problems, including, importantly, participating in the courses referred to by Mr Gray in his closing submissions. I accept that to an extent S’s removal into care served as a ‘wake up’ call for father and motivated him to change. I accept also that up to a point the father is in a better position today than he was in 2013, that is, a better position both in relation to himself and also in relation to his potential ability to look after a child of S’s age.

[60] But – and I am afraid there are many buts – this is only a part and a rather partial part of the overall picture.

[61] In the first place, the father on his own admission was lying in his evidence before the family proceedings court and, until quite a late stage in his oral evidence to me, was, as he admitted, less than frank in what he was saying to me. The importance of this is not that the father was lying, it is why he was lying. It was, I am satisfied, not just that he wanted to defeat the local authority’s case. It was because, until he reached the almost cathartic moment when, in very emotional evidence, he began to leave his lies behind him, he had been unable even to begin to face up to and acknowledge, even to himself, let alone to others, the extent of the domestic violence, the extent of his problems with alcohol and the extent of his failings as a father. This threw into sharp and revealing relief the substance – or, rather, the lack of real substance in his earlier protestations of change.

[62] Secondly, and on this point I accept the local authority’s submission, none of the work which the father has done in an attempt to address his various problems – both his problems with alcohol and the other problems chronicled in the GP notes – has dealt with the root causes. And to a significant extent the various improvements which the father identifies are based on his own self-reporting.

[63] Thirdly, I agree with the guardian’s submission, which the history I have rehearsed more than bears out, that the alcohol which the father uses as a coping mechanism is in large part the trigger for his on occasions extreme violence, not merely domestic violence but also violence more generally. The importance of this, of course, is that there is nothing in his tendency to alcohol induced violence specific to his now-ended relationship with S’s mother. So what confidence can one have that some future relationship will not exhibit the same features? The answer, I am driven to conclude, is that one can have no confidence at all that past behaviour will not be replicated in future. On the contrary, there is a very real risk that it will.

[64] Even now I have to question the extent to which the father in his own heart really understands, really accepts and really acknowledges the reality of what happened on 19 April 2013 and 28 June 2013 and the actual or potential impact on a baby – on S, his own son – of those events. It may be that it is just too painful for him.

[65] At the end of the day I am driven to accept in its essentials the case as presented by the local authority and supported by the guardian.

[66] The sad reality is that S was damaged, seriously damaged, emotionally and psychologically, by what I am satisfied was the chaotic lifestyle he endured while being cared for by parents, the father and the mother, whose relationship was volatile and characterised by, on occasions really serious, alcohol induced domestic violence. It seems that he probably slept through the culminating episode of gross domestic violence on 28 June 2013, but one has to remember that in the earlier incident on 19 April 2013, when he was only a few weeks old, he was actually in his father’s arms when he kicked the mother in the ribs. The proof of the effect of all this on S is stark: the profoundly saddening description by the social worker of how S presented on 20 September 2013 and the heartening contrast between the picture S presented then with the much improved picture he presented after some time in foster care.

[67] At the end of the day, and stripped down to essentials, the question is whether S will be safe in his father’s care. I can have no confidence that he will be, no confidence that he will not be exposed in future to repetitions of what he was exposed to during the first six months of his life. There is in my judgment a very real, indeed a significant and substantial, risk that what has happened to him before will happen to him again. It is a risk related fundamentally to the father; it is not a risk which is removed or ameliorated by the fact that the father’s relationship with the mother has ended. The risk, in my judgment, is simply too high to contemplate. It is, in my judgment, a risk which is simply unmanageable, whatever practical mechanisms, whether family or professional, might be put in place.

[68] Adoption is a drastic remedy. It is to be contemplated only when “nothing else will do.” And the court must not come to the conclusion that “nothing else will do” until it has evaluated all the other realistically available options and considered whether its concerns can be adequately met by the provision of appropriate support and services, whether from the local authority or from family and friends. I have taken into account what the father’s mother and step-father can offer, but without in any way doubting their integrity and commitment they will not be able, however willing, to provide the support and, more critically, the necessary safety mechanisms which S must have if he is to be safe. Nor can the local authority, however substantial the support it might in principle be able to offer. How, after all, in the real world is S to be protected by third party engagement from a repetition of events such as those which took place on 19 April 2013 and 28 June 2013?

[69] Accordingly, despite everything the father has said, and despite everything pressed upon me on his behalf by Mr Gray, I am driven unhesitatingly to the conclusion that S’s welfare, now and into the future, indeed his welfare throughout his life, demands that I grant the local authority the care and placement orders it seeks. I am satisfied that “nothing else will do.” Indeed, and in truth, there is no other outcome capable of affording S the protection which he must have from the ongoing risks which his father presents.

[70] For the same reasons I am satisfied that S’s welfare “requires” me to dispense with his parents’ consent to his adoption.

[71] This is not, I emphasise, a case where my decision is driven by nothing more than a belief that S will have a better life if he is adopted. It is much more fundamental than that. It goes, in essence, as I have said, to the question of whether S will be safe if rehabilitated to his father’s care. The fact, in my judgment, is that he will not be.
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