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.

[UPDATE 18 SEPT 19 : The case this blog post discusses has now been successfully appealed (overturned by the Court of Appeal) – see E (Through Her Children’s Guardian) & Anor v A Mother & Anor [2019] EWCA Civ 1557. We will write an updating blog post when we are able.]

Earlier this week, a judgment was published on Bailii by His Honour Judge Greensmith sitting at the family court in Liverpool.
In my view, this judgment is a compelling read and beautifully demonstrates the law in action. You can read the full judgment here.

This was a final hearing in respect of a baby girl aged 7 months old where care and placement applications were being sought by the local authority. There had been a long and protracted history between the parents, a couple who have been together 11 years, and the local authority. The parents, to their credit, agreed that the threshold for making a care order had been crossed but did not agree with the making of a placement order. The Children’s Guardian supported the local authority in their application.

The History

In 2016, two older children were removed and placed with their paternal grandmother under a Special Guardianship Order. The reasons for this were the existence of – to quote a much maligned phrase – the “toxic trio”: substance misuse, domestic abuse and poor mental health. There had also been instances of homelessness, suicide attempts, and significant domestic violence. The parents have not maintained regular contact with their two older children for reasons that are not clear. An application was made for a care order on the day of the new baby’s birth and she was removed into foster care under an interim care order (ICO).

Since their baby girl was removed at birth in November 2018, the parents have continued to use drugs, and the domestic violence has continued to the extent the police attended two separate incidents in April and May 2019. There had been a previous altercation between the parents in December 2018.

The local authority had undertaken their own assessments, which were negative. The lead social worker determined that because the parents could not see that they were a risk to their child, there was no pre-birth work that could have been undertaken to mitigate that risk. The social worker did not believe that this little girl should “languish on a care order”, and so long term foster care was out of the question. The social worker recommended adoption. Nothing else would do.

A psychologist had also undertaken her assessments of both parents which showed that both needed therapy, and only the mother had the real potential to engage with it. The psychologist also noted that there would be waiting lists, that these therapies take time, that there was no guarantee they would work – and even if they did, they would “unlikely to occur within the child’s timescales”.

When I first started to read this judgment, I immediately understood why the local authority were making the application, and – I’d go so far as to say – I supported them.

However, the situation was not quite as straightforward as it initially appeared.

Nothing else will do

I have often spoke of how “lucky” I felt when my new-born baby boy was removed, and care and placement orders applied for by my local authority. Not “lucky” because of the situation I was in, of course, but lucky because I felt that the judge in my case would listen to me and would challenge the local authority. My son, after 258 days of fighting for him, came home. Had he have been adopted, I don’t doubt I wouldn’t have felt as “lucky” to have had the judge I had, but I would have felt some closure that at least I had fought, and at least the judge was fair and balanced.

HHJ Greensmith clearly challenged the local authority, the psychologist and the children’s guardian all the way through this final hearing. This judge reignites my passion for family law. I could practically hear the Rocky theme music playing in my head whilst I finished reading the judgment.

He first refers to the infamous phrase from Re B-S (Children) “nothing else will do” and turns to the (now) President of the Family Court Division, Sir Andrew McFarlane in Re W (Adoption: Approach to Long-Term Welfare) for further clarification. Essentially, HHJ Greensmith genuinely and authentically questioned why other placement options – such as foster care whilst parents were making the changes they needed to – were not and had not been considered for this little girl.

“There is no reference to the fact that fostering could be deployed to give the parents the chance to continue to improve their position while the child is in a safe and nurturing environment. I find the social workers statement, “[The child] is very young and therefore should not languish on a care order”, highly reductive of most foster placements which give nurturing physical and emotional support to young people who have been failed by inadequate parenting and society generally. I also consider that the social worker’s submission that, “There is no guarantee that a long term foster placement would see [the child] through to adulthood,” fails to recognise that foster placements can often be used to support a child during a period of change and development of their parents. It also fails to acknowledge that adoptive placements, unfortunately can break down and thereby fail to “see a child through to adulthood.”

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

This notion of “permanence” for a child has always struck me as slightly Utopian. Life isn’t permanent, and it isn’t static. Should children be adopted and therefore that link with their birth family severed, when parents could, with the right support, make and sustain the changes needed to allow them to parent safely?

The green shoots of change

HHJ Greensmith also made some points about the changes that the parents had already made.
After losing their new-born baby to foster care via an ICO, the parents became homeless. This is a mother and father with a long history of a “chaotic lifestyle” who suffered one of the worst traumas any parent can. If one were cynical and unkind, one could argue that losing their baby was of their own doing. I am certainly not that way inclined and I very much understand why and how a parent’s life may spiral after a child’s removal.

However, these parents instead secured private rented accommodation and ensured it was suitable for their baby. Father managed to get – and keep – a job and by doing so saved the money needed for the deposit on the home in which they now lived. He also attended courses to address his own issues – an action which was entirely minimised by the psychologist who herself had not received any up-to-date information on the recent changes the parents had made. Mother enrolled on a parenting course herself and said during oral evidence that she would engage in any therapy offered to her, “and confirmed this had neither been signposted or offered by the local authority, even though the local authority had had the benefit of the psychological report recommending this since February (over four months)” [p.42].
Both parents reduced their drug use, though it was still an issue to be worked on.

“Looking at this evidence in the context of the visible improvements in the father’s life generally and especially improvements made together with the mother (without any significant support from the local authority,) it is reasonable to find that the father’s drug use is improving although further testing would be required to demonstrate sustainable change.”

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

I know, first-hand, how difficult it is to make, demonstrate and sustain change in the midst of care proceedings when you have endured the removal of a new-born baby. These parents were beginning to turn a corner. Some might say it is “too late”, and “what about the child?”. These are valid points; the child’s welfare is paramount, not the parents. But it is also the starting point of the Children Act 1989 that children should be kept within their families wherever it is safe and possible. So, who decides?

Making their mind up

The most compelling part of this case, and the one I can also, sadly, identify with is the parent’s assertion that the local authority, the children’s guardian and the psychologist had “made their minds up”, before the final hearing – and very possibly before the baby was born.

This was a point taken very seriously by HHJ Greensmith. I could be forgiven for saying that many judges have undoubtedly heard this argument before. However, in this particular case, it seems to have been a valid argument and the judgment reflects this.

The social worker gave evidence that she would normally meet with parents 6-8 times during the assessment period. She admitted in this case, she only met with the parents once and had never visited the home they had secured, despite them residing there for over three months at this time. The social worker had given no thought to contact after a placement order was granted, and had made no provision whatsoever for contact between this little girl and her older two siblings. There was also evidence that seemed to suggest parts of the final statement related to a male child, and not this particular baby girl at all.

“the overall appearance of the statement is that is simply goes through the motions in a formulaic manner, failing to provide an appropriate analysis….Having listened carefully to the social worker I have formed the view that Miss Mallon’s submission that the local authority has conducted these proceedings on the basis that adoption is the only likely outcome, has significant credence.”

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

Following the altercation between parents in December 2018, the local authority unlawfully ceased contact, a move the judge described as a “disproportionate response”. This was further compounded when the local authority then made an application under s34. Although this was withdrawn, it was an attempt to allow the local authority to cease the promotion of contact between the parents – who had just lost their baby and had just become homeless – and their child over the Christmas period.

The children’s guardian undertook her assessments of the parents over five days only. HHJ Greensmith felt it “obvious” that much of her evidence “relied heavily on information from the local authority”. Within this was an extensive analysis, a particular concern being that she says “I have given full consideration to Re B-S (2013).”

“I am satisfied that the guardian does not have a proper understanding of what is required by a Re BS analysis. This is wholly borne out by the failure of the guardian to appreciate the local authority had formed its conclusion that adoption was necessary prior to completing its assessment of the parents.”

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

This local authority and the children’s guardian do appear to have decided that “nothing else will do”, concluded adoption to be the only outcome for this child before proceedings had ended, and conducted their cases accordingly.

With respect, and in my view, that should not be the function of any party in public law proceedings, because it entirely negates the point of them in the first place. HHJ Greensmith agreed: “We have not reached a position where nothing else but adoption will do.” He told the local authority to pay for support for the parents where the NHS cannot provide services within an adequate time. He told the local authority to effectively go away and do it again, giving them a six-week timeframe in which to consider a “cohesive care plan which will support future rehabilitation”. I can hear that Rocky music again…

I cannot applaud enough the actions of His Honour Judge Greensmith. As a birth parent, sometimes it feels like no one believes in you. It’s hard to have a whole local authority tell you you’re not “good enough” to look after your own child. It’s even harder not to allow your life to spiral out of control at that point. I know it, I’ve been there. Yes, these parents have messed up; I did too. And yes, the most important point is that this vulnerable child is safe and protected. But, as a social worker, as a children’s guardian, as a family lawyer, as 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?

Image by Andreas Wohlfahrt from Pixabay