This is a post by Annie, one half of our Project Coordination team, author of Surviving Safeguarding; a parents’ guide to the child protection process and a birth parent who has been through several sets of concurrent public and private law proceedings. Annie now trains professionals working in child protection and family law, writes and advocates for other parents going through the child protection system in England and Wales and is the Parent and Relatives Representative on the Family Justice Council.

On July the 18th, I wrote and published a post about a judgment made by HHJ Greensmith on a very sad case with a tentatively positive outcome. You can read the full post here which gives a full explanation of the judgment and the link to the original judgment is here. This post directly follows on from there, and it’s important to know that since that judgment there had been three further instances of domestic abuse where the police were involved, and an incident of the mother assaulting a police officer and another person for which she received a community sentence.

The History

The case involved a very young baby who had been removed at birth from her parents under the auspices of an Interim Care Order and in respect of whom the local authority had applied for care and placement orders. The parents agreed that the threshold for the making of a care order had been met but did not agree with the making of a placement order. The child’s guardian agreed with the local authority (who were not named in the judgment).

These applications were sought as a result of a lengthy history of involvement between the parents (who had been together 11 years) and the local authority. In 2016, two older children had been made subject to Special Guardianship Orders after evidence of substance misuse, domestic abuse and poor mental health – often known as the “toxic trio” – as well as homelessness, suicide attempts and significant episodes of domestic violence. Neither parent was having any contact with the elder children at the time of these applications in respect of the new baby. The outlook for the parents being in a position to care for her looked bleak.

Criticism

However, HHJ Greensmith determined that the parent’s drug use had reduced, though he conceded that it had not ceased entirely. He applauded the couple’s efforts to secure housing for themselves, having previous spent a period of homelessness on an allotment, and that the father had managed to find, and keep, a job. He could see that both parents were trying; mother had enrolled on a parenting course and father had engaged The Judge was critical of the local authority, referring to the legal framework that considers the welfare of the child throughout their lives (S1 Children and Adoption Act 2002 questioning why long term foster care with an ultimate goal of reunification was not being proposed as a viable option, turning to Re B-S (Children) and and the (now) President of the Family Court Division, Sir Andrew McFarlane in Re W (Adoption: Approach to Long-Term Welfare). HHJ Greensmith was optimistic for a positive outcome and recommended a “cohesive plan which will support future rehabilitation” over a period of 12-15 months, giving the parents a chance to make, demonstrate and sustain the changes they needed to ensure their parenting was “good enough”. The local authority were told to essentially ‘go away and do it again’ and present back to court a care plan on the 17th of September 2019.

“Unusually time is on the side of this child. There is, in my view just enough time to demonstrate that change is possible and sustainable within the timetable for the child. We have not reached a position where nothing else but adoption will do.”

HHJ Greensmith A (Child) (Rev 1) [2019] EWFC B34 (25 June 2019)

HHJ Greensmith also applied the “tripartite test” identified by Sir James Munby P in Re S [2014] EWFC B44 in the context of evaluating the capacity to change in the Family Drug and Alcohol Court, namely:

• (1) Is there some solid evidence-based reason to believe the parent is committed to making the necessary change?
• (2) Is there some solid evidence-based reason to believe the parent will be able to maintain commitment?
• (3) Is there some solid evidence-based reason to believe that the parent will be able to make the necessary changes within the child’s timetable?

As a parent who has navigated the somewhat frightening and confusing world of care proceedings; one where you feel you are pushing water uphill and begging to be given a chance, this case really sang to me. I rooted for the parents and was in unutterable awe of the Judge. I was “lucky” to have had a judge who listened to me and gave me a chance too. I haven’t let him, my children, or myself down in the five and a half years that have passed since my child was returned to me.

So it didn’t occur to me that HHJ Greensmith might have erred in law, or indeed that he was wrong in any way. Instead, I was delighted at his cautious optimism, his awareness of how it may be that the local authority and the children’s guardian had made their minds up on adoption before any real assessment had taken place. ‘This is how it should be’, I said. That regardless of your role; as a social worker, a guardian, a lawyer or a judge, if you believe in the notion of family, that children (where safe) do better within their families, that sibling relationships are vital and you believe that people can – and do – change, you should do whatever you can to help them make those changes. Because otherwise, what are we all doing?

The Appeal

It came then, as somewhat of a surprise to me when I read Re E (Refusal of Placement Order) [2019] EWCA Civ 1557. On receiving the judgment in Re A, the children’s guardian and the local authority requested permission to appeal, this being granted by King LJ on the 22nd of August. In Re E, the appeal was allowed.

HHJ Greensmith was wrong, and in turn, so was I.

The appeal was led by counsel for the children’s guardian who made submissions, these being echoed by counsel for the local authority. In essence, the following arguments were made:

• That the judge was wrong to conclude that there was sufficient evidence to be sure that the parents could make the changes required in the time allowed. Counsel for the guardian pointed out over 40 reported instances of domestic abuse, persistent substance misuse and a generally “chaotic lifestyle” and surmised that an objective analysis of the evidence did not suggest that the positives outweighed the negatives.
  
  
• That the judge was wrong to assert that the parent’s drug use was improving; there was significant evidence to suggest that not only were both parents still taking drugs (including heroin, crack cocaine and codeine), but that they were not being honest with professionals about this.
  
  
• That the judge was wrong to decide that it was permissible for a young baby (seven months old at the time of the original hearing) to remain in foster care for another 18 months whilst her parents made the changes they needed to. The local authority, argued that the “failings were so grave” that there was little realistic possibility of the parents looking after their child safely. The guardian, agreed; “Given that both the psychologist and the guardian were opposed to the proposal, it was incumbent on the judge to provide a more substantial analysis of his reasons for rejecting their views” [para 27].
  
  
• That the judge was unfairly critical of the local authority and the guardian’s evidence; counsel for the guardian submitting that the “criticism of the guardian’s analysis as “formulaic” was inappropriate given the guidance provided by Cafcass” [para 25]. The local authority submitted that the judge “wrongly disregarded, or failed to attach sufficient weight to, the professional consensus of the psychologist, the social worker and the guardian, and placed too much weight upon the parents’ assurances they would engage with the rehabilitation plan.” [para 29.5]
  
  
• That, whilst the judge conducted the “tripartite test”, the guardian argued that he did not apply the principles correctly. On the facts of this case, there just was not enough evidence to demonstrate that the parents could change their behaviours within the child’s timescales.

Both parent’s counsel valiantly argued their own cases; the father reiterating that there had indeed been progress made and that the local authority and the guardian had failed to engage in any assessments or analysis of the case which would lead them to any other conclusion that adoption. The father believed the social worker and the guardian had just written the parents off, reminding the court that the social worker had met only once with the parents.

The mother submitted “that the risk factors associated with the parents paint a worrying picture and that the mother has struggled in the past, but submits that the judge had the benefit of appraising the parents while giving their evidence and observing their general demeanour in court” [para 31]. The mother’s position had not changed; she still wanted her little girl to come home. Counsel for the mother asserted that if the parents did not maintain their progress once the baby was returned, the local authority could simply apply for another placement order, and swiftly.

Reading that as a lay-person, I think it was probably that last point that struck me the most. This little girl had already suffered (and I use that word purposefully) one separation, at birth from her parents and into foster care. What counsel for the mother was proposing was that this little girl be moved again, from adults she would have formed an attachment with at a crucial point in her early years, back to her parents…and if it didn’t work she could simply be removed once again from them. That would at best involve a third move to foster parents who were looking to adopt, or at worst, this little girl could be moved to foster parents whilst an adoptive family found.

Four moves.

This little girl is ten months old.

The decision

Baker LJ gave a substantive judgment, with Floyd LJ and Lindblom LJ in agreement. They found that:

• the judge was indeed wrong to conclude that the parent’s drug taking was improving, when the scientific evidence was to the contrary; “he was not entitled to conclude that the fact that there were some signs of improvements in the parents’ lives was evidence that the father’s drug use was “improving” when the drug tests demonstrated that it was not” [para 38]. And of the mother; “the judge’s conclusion that “considering the mother’s stated position and the tests available, the court would need to be satisfied with more recent evidence of the mother’s failure to abstain to find that the mother is not now drug-free, as she says she is” was, in my judgment, erroneous.”[para 39]
  
  
• the judge failed to properly analyse the parents’ evidence “the judge formed a favourable impression of them from their evidence and demeanour in court, but there is little analysis of this within the judgment.” [para 40]
  
  
• the judge did not fully engage with the issue of domestic abuse and how that impacts upon children noting in particular PD12J (general principle, paragraph 4); “In this case, there is a worryingly long history of domestic abuse. It has clearly disfigured the parent’s relationship for a number of years. Unless this issue is addressed head-on and tackled by the parents, it is difficult to envisage any court placing a child in their care. In my judgment, this issue did not receive sufficient recognition in the judge’s analysis.” [para 41]
  
  
• the judge was wrong in his assessment and criticism of the psychologist’s, social worker’s, and guardian’s evidence; “There was little if any reason for the judge to reject [the psychologist’s] pessimistic assessment of the prospects that the parents would engage successfully in therapy.” [para 42]. Of the social worker and guardian, there was some evidence of an early conclusion that adoption was the only option, however the judge’s criticism of a formulaic approach was not correct; “They were plainly following professional guidelines in their attempt to comply with the case law cited above.” [para 44].
  
  
• Finally, the judge was ‘plainly wrong’ in his decision to postpone a final decision for a period of up to 18 months; “I find it difficult to envisage any case where it would be appropriate to wait as long as eighteen months before making a decision about whether a seven-month-old child should be placed for adoption” [para 45]

“I am quite satisfied that the judge was wrong to find that there was anything like sufficiently solid evidence before him to conclude that the parents were committed or able to make and maintain the necessary changes within the child’s timescale.

In those circumstances, whilst understanding the judge’s reasons for pursuing this option, I conclude that his assessment of a number of issues concerning the child’s welfare was mistaken and that this appeal must therefore be allowed.”

Baker LJ Re E (A Child) (Refusal of Placement Order) [2019] EWCA Civ 1557

As someone who writes a parents’ guide to the child protection process, has become a fierce advocate for more parental support, more preventative work and less interventions, and as a mum who had her newborn baby removed with an ultimate plan of adoption, I am often asked if I think non-consensual, or forced adoption should be “abolished”, or at least used only in the most extreme of circumstance where the death of a child may occur. Those asking are often surprised by my answer.

My view is that there are occasions where a child’s immediate physical safety and life depends on their permanent removal from their birth family. But that there are also occasions where the cumulative effects of a neglectful, emotionally abusive, or chaotic childhood depends on a permanent removal from their birth family. Unlike physical or sexual harm, there’s no “one day” that emotional abuse or neglect causes significant harm to a child. It just creeps up. And most often the parents don’t consciously set out to harm their child. I know I didn’t set out to harm my children. But I did cause them harm. And where do you draw the line?

I’m sad to say that my personal view of this case has now changed. I hope the parents get the help they need and continue to make progress, I really do. I hope they can resume contact with their older children and play some role in their lives. Overarchingly though, I hope that little girl doesn’t have to suffer any more disruptions and a plan made for her that allows her birth family some safe contact with her in an adoptive family.

Sadly, this seems to really be a case where “nothing else will do”.