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MA v LB of Camden & Ors [2012] EWCA Civ 1340

Appeal of refusal to revoke placement orders in relation to children aged 6 and 4

The two children. TA-B (aged 6) and OA-B (aged 4¾) were made subject to care and placement orders in September 2011. Neither parent appealed that order. On 29 April 2012 the Local Authority informed the father that they had selected a couple as prospective adopters. The mother then applied for revocation of the placement orders and that application was heard and dismissed in August 2012. The mother appealed.

Dame Janet Smith concluded that the judge's decision was unimpeachable on the evidence before him. The mother's appeal had three main themes. Firstly it was submitted on her behalf that the judge had been wrong to hold that there had to be an immediate decision either in favour of the mother or the adopters and there should have been an adjournment to allow the mother to undergo psychotherapy. That ground was rejected as Dame Janet Smith held that there was no evidence that the mother would be able to begin psychotherapy immediately, nor that the prospects of success would be capable of estimation within a short timescale. The evidence was that, when it started, psychotherapy would take six to twelve months and the experienced Guardian's view was that further delay in making a placement would be detrimental to the children.

Dame Janet Smith also rejected the complaint that the judge had not carried out a balancing exercise of the risks involved in the two options he identified, and in particular that he had placed too much confidence on the prospects of success of an adoptive placement. She held that the whole of the judgment had been concerned with this balancing exercise and that there was no evidence to gainsay the local authority witnesses who told the judge about their selection process for the adopters and that they were satisfied that the couple who were proposed would provide a secure and loving home.

The argument most heavily relied on by Counsel for the mother was that the judge had applied the wrong test when he had said in his judgment that there would need to be a "high confidence" in the psychotherapy proposed by the mother and a "very high level of confidence that rehabilitation would succeed. Dame Janet Smith described this ground of appeal as misconceived. The test, in her Ladyship's words, was "what solution or arrangement is in the best interests of these children for the rest of their lives?" (para. 57) and the answer to that question can only be found on the exercise of judgment on a range of factors and issues.

Dame Janet Smith then went on to consider fresh evidence which the mother had been granted permission to adduce on the appeal, which she held could not have persuaded the judge that the mother had made the changes necessary before the children were reintroduced to her.

Black LJ gave a separate judgment in which she agreed with Dame Janet Smith. She reviewed the principles set out in relation to a prediction of future harm in Re B (Children) [2009] 1 AC 11 and Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and observed that "Where the child's history so far has been damaging and it is critical for the child to be in a long term dependable placement without further delay, and where the adoption placement on offer may be the child's last chance to be united in an adoption placement with his sibling, all of which was the case here, then the judge is likely to look for a greater degree of certainty in relation to the parent's ability to provide a safe and appropriate home for the child than in a case where, say, the child is still a small baby with time on his side and there have been no earlier attempts to place him with the parent." (paragraph 82).

The appeal was therefore dismissed.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

____________


Neutral Citation Number: [2012] EWCA Civ 1340
Case No: B4/2012/2234
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HHJ BRASSE
FD 12 Z 00234
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/10/2012
Before:

LORD JUSTICE LONGMORE
LADY JUSTICE BLACK
and
DAME JANET SMITH
- - - - - - - - - - - - - - - - - - - - -
Between:

MA  
Appellant

 -and- 

LONDON BOROUGH OF CAMDEN
1st Respondent

-and-

R. B.
2nd Respondent

-and-

T & O  A-B
(Children through their Guardian, Mark Kalinauckas) 
3rd and 4th  Respondents

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

Clive NEWTON Q.C. (instructed by Peter M Black) for the Appellant
Anthony KIRK Q.C. and Miss B. MORRIS (instructed by Camden Legal Services Dept.) for the 1st Respondent
Miss K. RENSTEN (instructed by Jacinta Lonnen of Eskinazi & Co.) for the 3rd and 4th Respondents
Hearing date: 26th September 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
 
Dame Janet Smith:

Introduction
1. This is an appeal, brought with the permission of Ward LJ, against the rejection by His Honour Judge Brasse on 17 August 2012 of the appellant's application to revoke placement orders made pursuant to section 24 of the Adoption and Children Act 2002 by the same judge in September 2011.

2. The appeal concerns the future of two young boys, TA-B (born 20 June 2006, so aged 6) and OA-B (born 27 December 2007, so aged 4¾).  Both children were taken into the care of the London Borough of Camden (the local authority) in April 2010 and have been in foster care ever since.  Care proceedings were commenced and, at a five day hearing in January 2011, Judge Brasse determined that the threshold criteria under section 31 of the Children Act 1989 had been satisfied in respect of both children.  In September 2011, after a welfare hearing also lasting five days, Judge Brasse made care orders and placement orders in respect of both children.  Both parents were parties to those proceedings. Neither parent appealed the order.  The local authority then attempted to place the children for adoption and on 29 April 2012 informed the father that they had selected a couple as prospective adopters and that the couple were two homosexual men. Five days later, the mother applied to the judge for revocation of the placement orders.  The father did not join in the application. After a two day hearing in August 2012, the mother's application was rejected but placement was stayed pending a possible appeal. The mother appealed promptly; permission was granted and the stay extended pending the outcome of the appeal, which was heard on 24 September 2012.

3. That account of the proceedings conceals a sad human story which I shall now set out.  The history will be based on the judge's findings in his various judgments.  At the time it was given, much of the evidence was hotly disputed but the facts are now very largely common ground.

The factual background
4. The father and mother met each other at a detoxification centre in 2002.  The father, born in 1970, had a poor educational background and misused alcohol and drugs from an early age.  In some respects, the mother had had a good influence upon the father as, after they began to live together, she had encouraged him to find work and to gain experience in the building trade in which he became quite successful. He has never conquered his dependence on alcohol but he has some insight into it. 

5. The mother had a very successful early life. Born in 1964, she did well at school and qualified as an accountant. In that capacity she worked very hard and was successful. However, it seems that she was vulnerable to the stressful circumstances of her work. Her general practitioner records reveal that, during the 1990s, she was drinking to excess.  In 2001, she suffered a serious sexual assault and began drinking more heavily. In December 2002 she was admitted to the detoxification centre for a period of three months.  I understand that the couple began to live together after their respective discharges from the centre.  By October 2003, the mother had relapsed and was drinking heavily again.

6. After the birth of the first child T in June 2006, the health visitors, police and eventually social services became concerned about the couples' ability to care for the baby properly on account of their drinking habits. On a day in September 2006, the mother asked the health visitor to attend the house. The health visitor was so concerned about the mother's report that the father was drinking and being violent that she called the police. The police attended and found both parents were under the influence of alcohol.  During that autumn there were a number of incidents in which there was concern about physical violence and about both parents drinking while in charge of the baby.  Following an incident on 31st December 2006, when both parents were drunk, the baby was taken into overnight care.

7. During the next few months there were many occasions when the parents were thought to be under the influence of alcohol, when there was domestic violence and life in the home was chaotic.  In May 2007, T was taken into protective care and placed with foster parents.  Proceedings were begun in the Family Proceedings Court.  T remained with foster parents until December 2007.  The second child O was born that month. The parents had separated by then and T was allowed home to his mother.  The father returned to live with the mother and children in June 2008. The substantive court hearing did not take place until November 2008. Then, the magistrates found that the threshold criteria had been satisfied in respect of events in May 2007 but that the parents were making progress. The current evidence suggested that the mother was capable of providing good care when she was sober. The magistrates made a supervision order for 12 months.    It appears that the supervision was effective and, twelve months later, the local authority closed the case.

8. Unfortunately, it appears that, once supervision had ceased, the couple began to have problems again.    In February and March 2010 there were incidents of quarrelling and violence which appear to have stemmed from the father being drunk.  On two occasions he went to hospital seeking detoxification; he was aggressive and abusive to staff.     Then in April 2010, there was an event which led directly to the children being taken into care. 

9. The details of what occurred were hotly contested at the threshold hearing in January 2011, but the judge found that, on 24 April 2010, the mother took the children to visit her elderly parents, who had never seen the children before. Mother was drunk and incapable of looking after the children. She was seen staggering in the road. The grandparents refused to let the mother into the house.  A neighbour called the police as the children were wandering in the road outside the grandparents' house; they were also in a dirty condition. The mother was detained at the police station and arrangements were made for the care of the children.  The judge's findings of fact in respect of this issue at the hearing in January 2011 were particularly important because the mother had consistently denied being drunk, had given a number of inconsistent accounts of what had occurred and had accused the police of harassment and of fabricating evidence against her.  The mother also asserted that she did not have a drink problem when it was patently obvious that she did. She herself now accepts that that was so. In effect, her evidence demonstrated that she was out of touch with reality and was capable of telling a pack of lies.  However, at this stage of the proceedings, the judge appears to have accepted that, when sober, the mother was capable of caring for the children both physically and emotionally.

10. By the time of the hearing in January 2011, the parents had separated again. The judge's conclusion in respect of the father at the end of that hearing was that he had a very serious alcohol problem about which he was frank and open. He was also fairly frank about the past incidents of violence.  The judge acknowledged that he was very fond of the children and had both respect and affection for the mother. However he could not control his drinking.  

11. In respect of the mother, the judge found that she had a drink problem about which she was in denial.  He held that, in April 2010, the children were at risk of suffering significant harm due to serious deficiencies in the care given by the parents. Both parents drank to excess and when drunk were liable to quarrel and fight verbally and physically in front of the children. When drunk they were not capable of meeting the children's emotional or psychological needs. The drink problems were of long-standing. The main difference between them was that the father acknowledged his problems whereas the mother denied them. 

12. By the time of the welfare hearing, a great deal more was known about the couple and the children in that there had been several professional assessments and expert reports had been obtained. Of particular importance was a report from Dr Neil Boast, a consultant forensic psychiatrist, who had examined the mother. Also, the parents' interactions with the children had been observed during supervised contact sessions and their relationships with the children had been assessed.  The local authority sought care orders and placement orders in respect of both children.  The mother sought the return of the children to her.  Her case was that she did not have a drink problem and the children should be returned to her without delay.  Allegations that she did not relate well to the children and did not understand that her behaviour was damaging to them were fabricated and malicious.  The father supported her stance, seeking only contact for himself. The children's guardian supported the local authority's application. The judge concluded that it was in the children's interests that they should be placed for adoption.

13. At paragraph 143 of his judgment dated 28 September 2011 the judge said:

"I find that she (the mother) has had a longstanding alcohol problem which impedes her ability to meet the children's needs. She refuses to acknowledge that this is so and hence is unwilling to take any steps to address the problem through accepting professional help - for example from the Family Alcohol Service. She dearly loves her children, but her parenting has been very inconsistent and they have both been exposed to many distressing scenes between the parents or when (the mother) was drunk. Since the children have been in care, her conduct in contact sessions has shown a marked inability to prioritise their emotional needs above her own. She has been impervious to advice. The likelihood of her addressing this deficiency in her parenting to bring about change is remote. She is convinced that all the evidence which is unfavourable to her has been mis-recorded or even fabricated. This is the opposite of the truth. She has shown no insight into the deficiencies of her manner of relating to the children or meeting their needs. Her stance of adamant denial and an insuperable sense of victimhood; that her children have been unjustifiably removed from her care; and that she is a perfectly adequate but misrepresented parent will not change in the foreseeable future. Sadly, there is no real chance of her capacity as a parent improving as she feels she has nothing of significance to learn."

14. Although this is the judge's summary of the mother's unsuitability to have the care of the children, he had explained at an earlier stage of the judgment his conclusion that the mother was unable to prioritise the children's emotional needs above her own.  He accepted evidence, based largely on observations of contact sessions (when the mother was not under the influence of drink) that there was no secure emotional attachment between the mother and the children.  The mother did not seem to know how to play with them. She wanted to kiss and cuddle O, the younger child for longer than he was willing to be cuddled; she tended to focus on O to the detriment of T.  She did not seem willing to let them play in their own way and be involved in that. She also found it difficult to lay down boundaries when necessary.  The children, who were well-settled and thriving in their foster home, became unsettled after contact sessions and sometimes O wet his bed.  Although the judge did not use the expression, it seems that he was of the view that the children were not bonded with their mother.  On the other hand, there was such an attachment between the children and their father.

15. The judge then considered whether the father could provide adequate care for the children and concluded that he could not.  There was a good emotional bond. However, he was in constant danger of relapsing into alcohol abuse, particularly if under stress.  Also, he was very much under the influence of the mother and it was inevitable that she would interfere and would undermine his care and control of them. 

16. There was no other possible carer within the family circle. The only option therefore was placement for adoption.  The local authority had submitted a plan in the event that placement orders were made.  Direct contact with the parents would be gradually reduced and then stopped so that the children would not be confused when they were placed.  The judge accepted that plan and made no order for contact. As I have said, the judge's orders were not appealed by either parent.

17. It is worth mentioning at this stage that there was running through both the judge's judgments a concern about the length of time the proceedings were taking.  The children were being kept in a state of uncertainty about their future. They were becoming attached to the foster parents and, whatever the conclusion at the end of the hearings, they would have to leave them.  Also, if the children had to be placed for adoption, the task of selecting a suitable family would become more and more difficult.  It is well known that many adoptive parents prefer to take a very young child.   When the judge concluded that there had to be placement orders, it was clear that he intended that the children should proceed to adoption as soon as possible. 

18. In the immediate aftermath of the welfare hearing, things went badly in respect of the mother's diminishing contact.  Her relationship with the social workers remained difficult. Although contact took place on two occasions in early October, later in the month there was a dispute about when the next contact should take place. The mother was abusive and insulting to the social workers.  On 8 November 2011, the mother arrived late for contact and was inebriated.  The children were distressed and contact was brought to an end; the children were taken home.  That night O defecated in his sleep.    Later that month, when the mother contacted the social worker by telephone to ask after the children; she was drunk.  The local authority decided to suspend contact and none has occurred since 8 November 2011.  The mother has not contacted the authority for news of the children since that time.  She sought information from the father who was still having occasional contact with the children.  During this period, the mother was almost continuously drunk.  In January 2012, there were two occasions when the police were called to the mother's flat because of disturbances involving both parents.  In the first of those occasions, on 13 January, the mother was clearly drunk. The parents were seeing each other at this time, because of their common interest in the children but their relationship was extremely volatile with both parents making allegations of violence and other criminality against the other. 

19. Meanwhile the local authority had tried to identify suitable adoptive parents.  This was not straightforward, given that it was obvious that the boys should be placed together. T was already 5 years old; O was four. Also the children are of mixed race; mother is of Indian origin; father is white.  Notwithstanding those difficulties, a suitable couple was identified and they were formally selected on 19 April 2012.  That decision was conveyed to the father on 30 April.  He was distressed to learn that the couple were two gay men.  He immediately told the mother of this proposal and she too was distressed about it.

20. It may, at first sight, appear to be significant that the mother filed an application to revoke the placement orders on 4 May, so soon after learning of the local authority's decision on placement. However, it would be unfair on the mother to conclude that there was a direct causal connection.  The mother had consulted a new solicitor for the first time on 24 January 2012.  It seems that she had recognised that she needed help.  From the fact that she consulted a solicitor rather than a doctor, I infer that she was still hoping to bring about the return of her children to her care. She claims that she has not drunk alcohol since the day of that first interview and there is no evidence to the contrary. She was referred to a psychiatrist Dr Mike McPhillips whom she saw for the first time on 24 April 2012.  In a report of that date, Dr McPhillips recorded her admissions that she did indeed have a drink problem about which she had been in complete denial. She accepted that she had been wrong in failing to recognise the effect that her drinking had had on her ability to care for the children.  She was seeking his help and he arranged for her to undergo an intensive course of therapy. 

21. Although the mother was seeking help and undergoing therapy, she seemed unable or unwilling to sever her relationship with the father.  Sometimes she invited him into her home; sometimes he came uninvited. There were a number of violent incidents, apparently due to his drunkenness. The police were called several times and advised her not to let him into the house drunk or sober.  But, even as late as 1 May 2012, the mother still lacked the motivation to take legal steps to keep the father away. On 29 June 2012, the mother invited the father to the house. They went out together for food and she returned alone. Later he arrived at the house uninvited; there was violence and the police were called.  There was another incident the following day.  In the wake of those incidents, the mother made a statement against the father. As a result, he was remanded in custody where he remained at the time of the revocation hearing in August 2012.  In respect of these incidents of violence, the judge was later to observe that, if the children had been allowed home, they would undoubtedly have been very distressed and frightened; they might even have been caught up in the violence.  The mother's willingness to invite the father to the house was, he said, 'highly risky behaviour'. 

22. The application for revocation of the placement orders (for which permission to proceed was required) was supported by the mother's written statement dated 11 June 2012 and two reports from Dr McPhillips.  The mother said that she had undergone 6 weeks of intensive treatment at the Charter Day Care Centre in Harley Street, attending all day and every day. She had then moved to attendance once a week as follow up.  She was also attending meetings of Alcoholics Anonymous (AA).  She asserted that she was now alcohol free and was not on any medication apart from Antabuse, a preparation which makes alcohol taste unpleasant.  She also said that she had severed her relationship with the father completely. She was restoring her life to a state of stability and claimed that she had resumed practice as an accountant. She claimed she had renewed contact with her family which she had 'let slip' after the September hearing.  She asserted that, now that she had insight, she would be able to work with social workers so as to ensure that the children could be returned to her without cause of concern.  Dr McPhillips's reports supported the application and described her progress. 

23. On 13 June 2012, Her Honour Judge Pearl granted permission for the revocation application to proceed to a full hearing. On the following day, the proposed adopters were approved by the local authority's Adoption and Permanence Panel. 

Evidence prepared for the revocation hearing
24. The local authority opposed the application to revoke and both parties filed witness statements and expert reports.  Among the reports was one from Dr Boast dated 2 July 2012.  At the hearing in September 2011, he had been of the view that there was little prospect of the mother making a recovery as she was in denial. Now, he was impressed by the progress the mother had made since he had last seen her but was of the view that it was too early to predict a successful prognosis. He thought that there was a significant chance that she would remain totally abstinent but also there was a risk that she might relapse into alcohol consumption under stress.    

25. Dr McPhillips provided two reports on the mother the later of which was written in June, two months before the hearing.  He opined that the mother had made a good start to treatment. The prognosis was good provided that she stuck to the advice she was receiving.  He mentioned a number of factors which would improve the prospect of recovery. These included the passage of time without relapse, regular attendance at AA, a stable home, employment which gave fulfilment and removed money worries, family support, friendships within the community, an AA sponsor, close monitoring and strict avoidance of other adults who were practising alcoholics.  As to the last of these, Dr McPhillips had been concerned at the mother's apparent reluctance to sever connection with the father.

26. There was also a report from Madeleine Muir-Wyatt, a counsellor and clinical manager at the Charter Day Care Centre, dated 7 June 2012. She said that the mother was making very determined efforts to overcome her drink problem. However, she was still at an early stage of her recovery.   She had formed a 'fledgling attachment' to the centre.  There were still ambivalences in her attitude.  She had 'partially displayed an understanding of the needs of her children if they were returned and the impact of the stress on her recovery'.  She would need to continue therapy for another year in order to establish a good foundation for continuing sobriety. The mother had been advised to attend meetings of AA daily but had been reluctant to do so or to accept a sponsor. However, she had started to attend three times a week. 

27. The report of Kay-Marie Taylor-Duke, an independent social worker appointed by the mother with the court's approval, supported the local authority's stance. She stressed the need for the children to be able to move forward; there had already been too much delay and any more would be detrimental. 

28. Having seen this evidence, the mother filed another statement dated 7 July 2012 in which she repeated that she recognised the grave mistakes she had made and accepted that the fact that her children had been taken from her was entirely her fault.  But, she asserted, she now had insight, she would be willing and able to work with social services and the children could be returned to her without cause for concern.

29. Not long after signing that statement, on 2 August 2012, the mother had an interview with Mr Kalinauckas, the children's guardian who was preparing a report for the hearing.  She told the guardian that she had been a good parent until April 2010 and that the children's distress had begun only when they were removed from her care.  They had been distressed because of their separation from her.  She expressed the view that, if the social workers had supported her then, there would have been no need to take the children into care. To this extent, she appeared to have resiled from her acceptance of responsibility.  She did, however, maintain her admission that she had behaved badly towards the social workers.  The guardian concluded that the mother had not really developed insight into the effect that her conduct had had on the children. He also concluded that the children had 'an anxious insecure attachment' to her.  He summarised his views at paragraphs 38 and 39 of his report:

38. The mother was given numerous opportunities to seek help and to change during the last two sets of proceedings.  She did not take these opportunities.  The Court made its decision last September, prospective adoptive parents have been found and are ready to take these vulnerable children into their home and it is my view that the placement order should not be revoked.  The changes the mother has made are to be applauded but it is early days in her recovery, her alcohol issues are long standing and there are significant questions for her parenting skills. If the children are not placed now it may be too late for them to be adopted in the future. If the children were placed with their mother this may break down.

39. The key issue is the children's timescales. They need to be in a family that can meet their needs for the rest of their childhood now and rehabilitation has been tried once in the first set of proceedings and failed. It is therefore my view that to allow the children to return home is too risky and that the placement with the identified prospective adopters should be allowed to proceed.   

30. A few days after her meeting with the children's guardian, the mother had a meeting with Miss Jane Cohen-Cramp, the children's social worker.  In her statement dated 13 August 2012, Ms Cohen-Cramp recognised the progress that the mother had made and applauded it.  However, she recorded her concerns that the mother had unrealistic expectations of the timescale in which she would be able to resume care of the children; she thought that it could happen before the start of the new school term in September.  Also, the mother had resiled from her acceptance that the children had been exposed to domestic violence while living at home and was insisting that the only problem which had led to the children being taken into care was the incident of 24 April 2010. She asserted that while in her care the boys had been absolutely healthy and happy. 

The evidence heard and accepted at the hearing.
31. In giving evidence at the revocation hearing, the mother accepted that the judge's conclusions about her on the two earlier occasions had been fully justified.  She accepted that her drinking had had disastrous effects on the children.  She accepted that her denial of her problems had led to unjustifiable prolongation of the proceedings and delay in making decisions about the children's future. The judge considered that, although the mother was being frank about herself on most occasions, there were still times when she relapsed into denial.  Moreover, he thought that she still had a deep aversion to the social workers involved in the case. Even after she had stopped drinking, she still did not contact the authority for news of her children.  She made the excuse, which the judge rejected, that she might be arrested if she went to their offices.    Yet she claimed that, if the children were returned to her, she would be able to work constructively with them. 

32. Dr McPhillips did not give oral evidence but Ms Muir-Wyatt did.  She said that the mother had progressed a little further in the past two months (since the report in June).  She explained that the mother had now reached the stage where she sometimes accepted her responsibility for her past mistakes and sometimes did not. This was typical of recovering addicts.  She was not yet 'out of the woods'. She was remaining sober and attending all her appointments but was still in the process of achieving consistent acceptance of responsibility. She would have to immerse herself in the supportive environment of AA. Also, she must avoid putting herself under stress as, if stressed, she might not be prepared to see the value of professional support and guidance.    As for the prognosis, Ms Muir-Wyatt said that it was 'good but guarded'.  Mother had made a good start but these were early days in the process of remaining permanently abstinent; relapse remained a real possibility. It may diminish over time if she maintained her commitment to treatment, acquired a stable personal life and built supportive networks. 

33. Dr Boast said that, since he had last seen the mother, she had become healthier, fitter, quieter and more considered in what she said. She had been frank and open with him about her responsibility for past events. Asked whether he thought she was or had been suffering from mental illness or a personality disorder, he said that he agreed with Dr McPhillips that she had not.  However, she had difficulty in 'being introspective'.  She would need to understand the emotional harm the children had suffered. If they were to be returned to her, she would need much guidance to make up for deficiencies in her parenting. As for the prognosis, she had a relatively good chance of recovery. There was a significant chance that she would remain abstinent. However there was still a risk that she could relapse, particularly if she were subject to stress.  Stress, he said, was inevitable in life but particularly if one has to look after children, is socially isolated and has money or relationship difficulties.  There were a number of negative factors in the mother's case. She had not yet returned to work; she was still estranged from her parents; contact with the father would be an ongoing risk and she was still variable in her acceptance of responsibility. Added to all that, there was an inherent risk of relapse in alcohol addiction.

34. Dr Boast also considered that abstention from alcohol was not the only issue relevant to whether it would be appropriate for the children to be returned to the mother.  The other important issue was her lack of insight and her one- sided perceptions. At present, she tended to see everything from her own perspective; she needed to learn to see things from the point of view of her children – a process which the psychiatrists referred to as 'mentalisation'. In this respect, she needed help from a psychologist or family psychiatrist for a period of between six and twelve months. Until there was confidence that the mother could see things from their point of view, Dr Boast thought that the children should not be re-introduced to the mother. 

35. In her evidence, the mother protested her determination to do what was necessary to have the children returned to her. She would keep away from the father; she would continue her therapy; she would provide psychological treatment for them if they were returned to her in an emotionally damaged state. The judge thought that this last suggestion displayed a lack of understanding of the problem.  The children were well and happy; it was the return to her which would have to be carefully managed.  Until recently, the mother had thought that it would be possible for her to take the children back in the near future and for her to move to Gerrard's Cross where she would be in a pleasanter environment with better schools.  She now accepted that this was unrealistic and that she would have to undergo the treatment described by Dr Boast.  She would accept his advice with determination and enthusiasm. However, the judge was not convinced that she had any real understanding of what the treatment involved.  He quoted her as admitting 'in an unguarded moment' that she had not 'a clue' what the treatment would entail, who would carry it out or when it could start.  But she was determined that it would succeed.

36. The judge was concerned about the mother's understanding of the possible timetable for the children's return to her care. At one stage, she appeared to accept that the children would have to remain with their foster carers for at least another six months before the process of re-introduction could commence. Then, a while later, she said that the children should be re-introduced at once because there was no risk to them; she was confident that she would learn to see things from their perspective.  The judge felt sympathy for the mother's position.  She was desperately trying to persuade him that she would succeed in addressing all her problems but, said the judge, it was impossible for him to conclude that the work would succeed within the time available for the children to wait for a decision. If they were re-introduced too soon and the contact failed, this would be a recipe for confusion and distress for them. 

37. The judge had other concerns about the mother besides those already mentioned.  She had claimed that her parents would provide strong support for her in future. However, on examination, it emerged that her relationship with them had not in fact been healed. Following a long period of estrangement, there had been only minimal contact since her treatment had begun and no further meeting was planned. She eventually accepted that it would take a long time to heal this breach.  The judge felt that this was another example of the mother's lack of realism. 

38. The judge heard the mother's objection to the proposed adopters. She was opposed to adoption per se but particularly to adoption by a gay couple.  The local authority had not told her about this proposal and she had learned of it from the father.  She had been given details only during the current hearing.  That, said the judge, was most unsatisfactory.  As the local authority hoped that indirect contact with the mother would continue after adoption, it was essential that they should win over the mother's cooperation.  They had not started well. 

39. The judge accepted the evidence of Ms Taylor-Duke, the independent social worker.  She was of the view that, although the mother had made very creditable efforts, she was still focussed on her own needs and on her own recovery rather than the needs of the children. She had still not gained any real understanding of what they had been through while in her care.  She did not understand that they had achieved stability in foster care nor appreciate the effect return to her care would have. The mother was of the view that the children were unhappy at the foster home; she thought that a return to her would be a return to 'normality' and that they might need professional help to get over their separation from her.  Ms Taylor-Duke thought that this showed lack of understanding and insight.

40. Ms Taylor-Duke foresaw difficulties with the father if the children were returned to the mother. The mother had said that his contact with the children would have to be supervised as she herself would have to avoid him. Yet, as contact with the father was good when he was sober, they would want to see more of him and would want to talk to the mother about him. Ms Taylor-Duke thought that the mother had not thought through these potential problems. 

41. She also thought that the mother was still ambivalent in her acceptance of responsibility. She still blamed the social workers for the cessation of contact. She thought that the mother would find it difficult to work with professionals, particularly while her ambivalence remained.  She thought that the mother's plans for the future were unrealistic. She intended to move out of London, to resume her accountancy practice and possibly to employ a nanny. Ms Taylor-Duke doubted the mother's capacity to meet the children's needs, set boundaries and maintain routines while running a practice. The mother would find the resumption of care stressful and this could imperil her recovery. The introduction of a nanny would add to the children's confusion. 

42. Ms Taylor-Duke drew attention to the fact that the children had not lived with the mother for 27 months and had not seen her for 8 months. They were attached to their foster parents. That placement could not be permanent. The children needed to be moved to a secure and permanent placement as soon as possible; they could not wait even six months, let alone twelve months, to see whether the mother might change sufficiently to meet their needs. 

43. Finally, the judge heard and accepted the evidence of the children's guardian.  The guardian explained that, having read that the mother had now accepted responsibility for her errors in the past, he was dismayed that she resiled from those admissions in interview with him.  He accepted that, in evidence, she had once again affirmed her acceptance of responsibility but he thought that her stance was still variable and inconsistent and that there was no firm foundation for change; she was still at an early stage of recovery.  He thought that the mother still did not understand the effect her conduct had had on the children, in particular at the last contact on 8 November 2011. He, like Ms Taylor-Duke, thought that the mother's expectations of a rapid return of the children were wholly unrealistic. He was concerned that the mother had sought contact with the father even after the application for revocation had been made; this he thought was a worrying lapse on her part.

44. In summary, the guardian did not believe that the mother could change into a 'good enough parent' within the timescales available to the children. He accepted that she might well benefit from the therapy now proposed but she had not yet embarked on this. In any event the outcome was far too uncertain to justify keeping the children waiting. 

The judge's conclusions
45. The judge reminded himself that, pursuant to section 1 of the Adoption and Children Act 2002 (a copy of which is annexed to this judgment), his paramount consideration must be the welfare of the children throughout their lives.  He noted that it was his duty to consider each child separately but that it was common ground that they should remain together. He noted section 1(3) of the Act which required him to bear in mind that any delay in making a decision would be likely to be prejudicial to their welfare. He expressed his concerns about the delay which had already occurred; the children had been in foster care for 27 months, a large proportion of their lives. They were, at the time of this judgment, aged six years and two months and four years and eight months.  Because there were two of them and because of their ages and mixed ethnic origin, it would be difficult to find another adoptive placement if the current proposal did not proceed.  He expressed the firm view that there must be no further delay. A decision must now be made as to a permanent placement. The decision was between the mother and the proposed adopters.

46. The judge then went through each of the factors which he was required to consider under section 1(4) of the Act.  One factor which features in the appeal is the judge's consideration, under section 1(4)(c), of the likely effect on each child of ceasing to be a member of his original family and becoming adopted.  He noted that there was no real prospect of the children ever being looked after by both parents; that situation would be fraught with risk.  He observed that they had no relationship with their extended family.  He accepted that both parents loved the children and they would lose that if adopted.  The problem was whether the mother could meet their needs.  On the other hand, if adopted, they would gain the love of the adoptive parents and would be likely to receive consistently good care, security and stability. Because they would retain a memory of their parents, they would need to be kept informed about them so that they would not lose their sense of identity and origins.

47. Under section 1(4)(e), the judge considered the harm that the children faced or were at risk of facing.  In a long section of the judgment, the judge referred back to the concerns in respect of the mother that he had discussed in his earlier judgments and described in detail the current risks as he saw them.  These comprised, first, the delay in settlement which would inevitably occur if he decided the children could be returned to the mother. As this section of the judgment is strongly criticised on the appeal, I shall set it out.  At paragraph 130(i) the judge said: 

"(The mother's) proposal inevitably requires further delay in making a decision about their future. She would need to undergo psychotherapy to help her mentalise the children and see the situation from their point of view. Only if and when she was consistently able to do this would it be justifiable to re-introduce the children to her. Re-introduction would convey the message that they would be returning to her and so there would need to be a high confidence that that could be achievable. To avoid further unsettling them, there would need to be a very high level of confidence (my emphasis on both occasions) that rehabilitation would be successful. If (the mother) was unable to do this, the process would have to be stopped and reversed. The children would have inevitably therefore become unsettled and confused. They already have a reduced ability to trust adults, as emerged from their work with the Multi-Agency Liaison Team.  Their ability in the future to trust plans made by adults would have been once again shaken and damaged. They may well have difficulty in forming secure attachments to future carers. They would have lost the chance of being placed with the identified adopters and it would be likely to be more difficult to find new adopters for them, as they would be that much older, they would be still be in a sibship and because of their racial origin.  The local authority would try to place them together, as separation would be harmful as they are close, but if that were not possible it may be necessary to achieve permanence for each of them and one might end up in long term foster care and the other in adoption, permanently separated. Looked at in this light, there are considerable risks."

48. The judge went on to identify the other risks which had been discussed, such as the mother's lack of support, the problems of resumed contact with the father and the mother's lack of insight.  He thought that the mother faced a relatively long process and that there was no assurance of success.  He recognised that there was some risk of failure of the proposed adoptive placement but he thought it much more likely to succeed (because the couple had been carefully chosen) than placement with a parent who had been proven to be unable to meet the children's needs in the past and whose deficiencies were still prominent. 

49. Finally, the judge considered, under section 1(4)(f), the possibility of placement with the father or in the extended family which he dismissed as impossible.  No criticism is made of this part of the judgment. Starting at paragraph 132, he announced his overall conclusion in the following terms:

"It is not possible to find therefore, on the balance of probabilities that (the mother) will be able to maintain alcohol recovery indefinitely. There are still too many identifiable sources of stress in her life.  She has no work at the moment, she lacks a social support network, there may be money worries looming and her relationship with the father is fraught with risk.  The care of the children would be a significant addition to the stresses.  Furthermore it is not possible to find, on the balance of probabilities that she will be able to learn –through psychotherapy or otherwise, how to mentalise the children, to keep them in mind, within a timescale they could wait for.  No therapist or programme of therapy has been identified by her.  She would have to undergo assessment of her aptitude to this kind of therapy.  An assessment of timescale and prospects of success would have to be made.   

I agree with the submission of the local authority that all of this is still too speculative. There are still too many deficiencies in (the mother's) understanding of where she fell short in her parenting.  These were clearly identified by the independent social worker whose evidence I accept. It would be far too risky, therefore, at the moment, to place the children in her care. In my judgment, these children cannot wait any longer.  …..
….  To accede to this application would not be in the best interests of the children throughout their lives and accordingly the application must sadly be dismissed."   

The grounds of appeal
50. At the start of the hearing, Mr Clive Newton QC, on behalf of the appellant sought and was granted permission to amend the notice of appeal.  Inter alia, he sought to introduce, as fresh evidence, a report from a psychotherapist, Ms Sheron Green, dated 24 September 2012, which comprised an account of the psychotherapy undertaken by the mother since the hearing before the judge. We allowed Mr Newton to refer to this report in his submissions and, in the light of all the circumstances, I would admit the report as fresh evidence on this appeal.  The report could not have been obtained by the mother in time for the hearing as she had not at that time made plans to undertake psychotherapy of the kind suggested by Dr Boast. The evidence is plainly capable of belief in that it comes from a reputable professional.  It is theoretically, at least, capable of affecting the outcome of the case. In the interests of justice and because the welfare of the children must be our paramount consideration, I think it is right to admit it.  I propose to consider the original criticisms of the judge's decision and then, if I reject those, I will consider whether, notwithstanding that the judge was right on the material then available, the case should be remitted in the light of the new evidence. 

51. Although nine grounds of appeal were identified in the amended notice, Mr Newton pursued three main themes. First, he submitted that the judge had been wrong to hold that there had to be an immediate decision, in favour either of the mother or the adopters. There was a third option to which he should have given serious consideration, namely adjournment of the decision to see how the mother would go on under psychotherapy.  He should have realised that the mother would start psychotherapy very quickly, indeed immediately, and that, within a short time, it would be possible to make a more informed assessment of the prospects of success.  Given the importance of the maternal link, the judge should have been prepared to put off his decision for a while. 

52. I would reject this criticism.  There was no evidence that the mother would be able to begin psychotherapy immediately and certainly no evidence that the prospects of success would be capable of estimation within a short timescale.  On the contrary, the mother told the judge that she had not a clue what the therapy would entail, who would provide it or when it could start. Moreover, the expert evidence was that, when it started, such psychotherapy would have to last six to twelve months before re-introduction of the children to the mother could be contemplated.  There was evidence from the independent social worker and the guardian, both highly experienced, that further delay in making a permanent placement would be detrimental to the children.  They had already been in foster care for 27 months (half of O's life) and further significant delay appeared inevitable unless the children were adopted. In my judgment, the judge was entitled to regard the decision as urgent and to rule out the third way, that of 'wait and see'. 

53. Mr Newton complained that the judge had not carried out a properly structured balancing exercise when considering the two options he had identified.  Nowhere did he define the risks and benefits of the alternative placements and assess the likelihood of the risks eventuating.  In particular, the judge had placed too much confidence in the prospects of success in the adoptive placement and had failed to give proper weight to the positive advantages of being placed with the natural mother and the certainty of the loss of those advantages in the event that the children were adopted. He submitted that, if the judge had carried out a proper balancing exercise, he would have concluded that it was in the children's best interests to be brought up by their mother, provided that they could be safely placed with her and that there were real prospects that that situation could be achieved within 6 to 12 months.  On the other hand, placement with the adopters carried risks of failure which the judge had not properly assessed.

54. I would reject this criticism of the judgment.  It seems to me that the whole of the judgment was concerned with this balancing exercise, as indeed had been the earlier judgment of September 2011, when the placement orders were made.  In all fairness, the two judgments must be read together. In September 2011, the judge had stressed the importance of non-interference with family life. At paragraph 10 of that judgment, he had reminded himself of article 8 of the ECHR and had said that the court should only intervene in family life if the children's welfare positively demanded it. If any parent could provide good enough parenting, the children should remain with that parent, even though there might be deficiencies and shortcomings in the care provided.  In my view, that passage demonstrates that the judge had well in mind the importance of the parental tie. In any event, it seems to me that, underlying the whole judgment and also the evidence given by the guardian and the independent social worker (which the judge accepted) there was the theme that, if the mother could provide good enough parenting, then of course it would be in the children's best interests to be with her.  The whole problem and the focus of the evidence was whether she could provide good enough care.

55. As for the criticism that the judge underestimated the risks of failure of the adoptive placement, it does not seem to me that he had any evidence on which to do more than he did.  Identifying suitable adoptive parents is a matter for the local authority. The local authority witnesses told him about the selection process they had undertaken and said that they were satisfied that the proposed couple would provide a secure and loving home.  There was no evidence to gainsay this.  Of course, it is known that some adoptive placements fail and there may well be statistics as to the proportion which fail and at what stages of the process. There may be evidence of a greater risk of failure with children who are no longer babies.  If so, such material was not put before the judge.  The evidence was all one way; this couple are suitable adoptive parents and there is no specific reason to think that the placement might fail.  The mother's objection to the couple's sexual orientation did not feature largely in the hearing below. It is now said that the judge failed to take account of the fact that the children's main carer had always been a woman; if placed with the proposed adopters it would be a man.  So far as I am aware there was no evidence to suggest that this change would give rise to any difficulty or unhappiness with the children.  I observe in passing that the children's emotional attachment to the father appears to have been closer and more secure than that with the mother.

56. I come now to the ground upon which Mr Newton relied most heavily.  It was submitted that the judge applied the wrong test when considering what was required to justify the return of the children to the mother.  It is said that the tests applied were variable and inconsistent and required the mother to cross too high a threshold.  Particular reliance was placed on the judge's statements in his paragraph 130(i) which I quoted (with emphasis added) in my paragraph 47 above in which the judge said that there would need to be a 'high confidence' that psychotherapy would succeed and a 'very high level of confidence' that rehabilitation would succeed.  At another stage, the judge had said: 'there is no assurance of success', which implied that assurance was necessary.  Inconsistently with that, in his final conclusions at paragraph 132 he had said that it was 'not possible to find on a balance of probabilities' that the mother would be able to maintain alcohol recovery indefinitely. It was submitted that these approaches were wrong. The judge should have asked himself whether there was a real, good or significant prospect of the mother being able safely and adequately to parent the children within a timeframe that the children could wait for.  Had he posed the question in that way, he would have found that there was such a real, good or significant prospect.  The main impediment to the mother's resumption of care was alcohol addiction.  As to that, the prospects of recovery were good.  Reliance was placed on Dr Boast's opinion that there was a significant chance that the mother would remain alcohol free.  Dr McPhillips' view was that mother had made a 'major turnaround' and Ms Muir-Wyatt had said that the prognosis was 'good but guarded'.    As to the other main impediment, the mother's need for insight and to learn to see matters from the children's viewpoint rather than her own, Dr Boast had said that the treatment would last for 6 to 12 months but that the process leading to placement could start when there was confidence that the mother could see matters from the children's point of view and show ability to change her parenting. This, he had said, might be within a short time after the work began.

57. In my judgment, this ground of appeal is misconceived. It is based on the proposition that, in this situation, the judge had to apply a single test to a single question:  is there a real, good or significant chance that the mother will be able to parent the children safely and adequately within a timeframe which the children can wait for?  That is not so.  As a matter of law, the single question which the judge has to answer is: what solution or arrangement is in the best interests of these children for the rest of their lives?  The answer to that question can only be found by the exercise of judgment on a range of factors and issues.  Some of those factors were findings of fact, as to matters in the past, which the judge had to decide on the balance of probability. Having found those past facts, they are established as true and any doubts or uncertainties the judge may have had in considering the evidence fall away 

58. That is not so when the judge has to consider the prospect of what might happen in the future; there he is in the realm of assessing risks, possibilities, probabilities and maybe a sense of confidence and assurance.  The process is not to decide what is likely to happen on a balance of probabilities and then to put aside doubts and uncertainties. The uncertainties remain to be taken into account when the judge makes his overall judgment as to what outcome is in the children's best interests.

59. I entirely accept that, in the present case, the prospects of the mother being able to care for the children in a good enough way was a major issue.  Assessing those prospects depended on the judge assessing a number of factors.  These were principally the mother's rehabilitation from alcohol dependence and the development of insight without which it would be impossible to establish a secure attachment between herself and the children. There were other subsidiary problems such as social isolation, lack of extended family support and uncertainty about the relationship with the father.  I will simplify the discussion by dealing with only the two main factors.  It is important to realise that the two problems of alcoholism and lack of insight arose independently of each other.  Securing rehabilitation from alcohol addiction would not, of itself, cure the mother's lack of insight.  It might help because, once she had made a secure recovery from alcohol addiction, she might be less preoccupied with her own condition and more sensitive to the children's needs.  But, when the judge heard evidence, that had not begun to happen; she had been alcohol-free for seven months and was still deeply pre-occupied with her own difficulties. 

60. The judge was right therefore to consider the prospects of recovery from alcoholism and the development of insight separately.  In respect of rehabilitation from alcohol, there was quite a lot of evidence.  The view of the professionals was fairly optimistic; it was found in expressions such 'the prognosis is good but guarded'.  But all the professionals emphasised that these were early days; mother was 'not yet out of the woods'.  More time would have to pass before there could be any confidence in a successful outcome.  There were some negative factors in the mother's case, for example, her vulnerability to stress, her social isolation and lack of family support.  The judge plainly found it difficult to assess the risks of relapse into alcohol abuse but in the end said that, on the balance of probabilities, she would probably not remain permanently alcohol-free. It might have been better if the judge had not used the term 'the balance of probabilities' because that might create the impression that he was making a finding of fact.  As I read his judgement, he was saying only that he was not optimistic about the prospects of a cure and thought that a good outcome was unlikely.  I can see the force of Mr Newton's submission that the judge should have been a rather more optimistic about the prospects of recovery from addiction. The expert evidence seemed to suggest that she might well succeed in that respect. However, the judge was entitled to take the pessimistic view he did.  It is not the experts who decide these issues; it is the judge.  He had heard the mother give evidence on three occasions; he was aware of how longstanding and deeply entrenched were her problems with alcohol. He was aware too of her vulnerability to stress.

61. Even if the judge had thought that the mother might well have been able to avoid relapse into alcohol abuse, there remained the problem of her lack of insight.  Here the experts had been much less able to assist the judge.  The suggestion that mother needed psychotherapy had arisen at a fairly late stage in the evidence. Unlike the work on alcohol abstinence, the work on insight had not begun.  There was no assessment of the prospects of success. The forecast was that, if it were to work, it would take 6 to 12 months and it might not work.  The judge pointed out that, at the present time, the mother had an idealised and unrealistic view of the children and her ability to cope with them and meet their emotional needs; she did not appear to understand or accept that they were not securely attached to her.  It is not surprising in my view that the judge said he was unable to find on the balance of probabilities that she would develop the necessary insight within a timescale the children could wait for.  Here again, it might have been better if the judge had not used the term 'balance of probabilities'. He was not making a finding of fact but assessing the future risks and chances.  But on the evidence, anything other than a fairly pessimistic view would have been perverse.     

62. The judge had to make an assessment of the children's best interests in the light of those uncertainties and (on his findings) that there were poor prospects of a sufficiently good outcome on both issues. Putting together those two uncertainties brought the judge to the inevitable conclusion that it was far too risky for the children to lose the present opportunity for adoption and await the uncertain outcome of the mother's therapy.  Even if the judge had been a little more optimistic about the prospects for abstinence, there would still have been two uncertainties to assess and the result would in my view have inevitably been the same.  As I have said, Mr Newton complained that the judge had looked for a high degree of confidence that the mother would be able permanently to abstain from alcohol.  Given the particular circumstances of this case, where there was great uncertainty about the prospects of the mother gaining insight, the judge was, in my view, entitled to say that he needed a high degree of confidence that she would at least remain alcohol free.  As a matter of common sense, if two uncertain factors fall to be considered, the risks are much reduced if one factor is almost certain to turn out well.  In the passages where Mr Newton complained that the judge set too high a threshold, it seems to me he was only saying that, if there were near certainty about abstinence, he would have greater confidence about the overall outcome.  But there was not; there was real uncertainty on both factors.

63. In my judgment, on the basis of the evidence then before the judge, his decision is unimpeachable.  Indeed I would commend his three judgments for the care with which he examined the evidence and the way in which he analysed the issues. 

64. It remains for me to consider the new evidence.  On 27 August 2012 Ms Sheron Green, a psychotherapist at the Charter Day Care Centre provided a proposal for a course of treatment for the mother.  It appears that Ms Green had been providing therapy for the mother since June 2012 but had not been asked to prepare a report in the proceedings. Ms Green, who appears to be a highly qualified and experienced psychotherapist, proposed a further course of treatment designed to provide the mother with increased insight and 'mentalization' into how her actions had contributed to her current situation. She continued:

"She needs to recognize her own mental state and to see this as separate from her behaviour and actions. If (the mother) fully engages with ongoing psychotherapy and EMDR (Eye Movement Desensitization and Reprocessing) she will in turn have greater awareness about her own thoughts, emotions, needs and desires.  Her capacity to see and understand the mental states, behaviour and needs of others will also increase, originating from her own personal insights."

65. Ms Green then recommended that there should be an intensive course of therapy for 4-6 weeks followed by further treatment for a period of at least 12 months. She concluded this letter as follows:

"In my clinical judgment, I do have concern regarding the mid-and long-term future for (the mother's) sons.  Inevitably, they will want and need to re-engage with their mother at some point in the future. It would be further distressing for them if, as teenagers or as young men, they hear that their mother took every effort to address her own issues and to gain care and custody of her sons, for these endeavours to be turned down."

66. Ms Green's report dated 24 September 2012 describes further therapy which the mother has undertaken.  Between 21 June and 23 August, the mother attended Ms Green for weekly sessions; Ms Green also saw her for an evening session providing addiction group therapy.  It appears that these sessions were directed towards the problems of alcohol addiction and the need for a consistent recognition of responsibility.  At the end of August, the mother approached Ms Green seeking to do work on 'mentalisation'.  I do not know whether Ms Green's new instructions came only from the mother or whether they were accompanied by a letter of instruction from the mother's solicitor. If so I have not seen it.  The court was told, however, that Ms Green had not been given access to any of the court papers; she had not read any of the expert reports or any of the judgments.  She will not have seen the social workers' accounts of the contact sessions. This is a matter of some concern to me because I do not think Ms Green can have had a thorough or detailed understanding of the mother's problems in relation to parenting. It seems unlikely that the mother will have told her that the children do not have a secure attachment to her and that she has been unable to play with them during contact sessions in a way which they could enjoy.   I get no impression from Ms Green's report that she is aware of the deep-seated nature of the mother's shortcomings as a parent. I do not mean that as a criticism of Ms Green; she must work on the basis of the material she is given. I do not think she has been given the full information which she needed in order to provide an informed opinion about the mother's progress. 

67. During September, the mother has undergone three double sessions of psychotherapy a week. Ms Green says that the primary reason for this increase was to increase the mother's insight into how her actions have contributed to her current situation.  Ms Green is satisfied that the mother now has that insight on a consistent basis.  Ms Green believes that this state of affairs will continue provided that the mother pursues healthy functioning relationships.  What relationships the mother has, Ms Green does not tell us.

68. Under the heading Child and Parenting Skills, Ms Green reports that the mother has demonstrated increased awareness and improved perception to the needs of her children.  She continues:

"By focusing on her own self-identity as an individual, then as a mother, she has successfully re-established her sense of self.  This is manifest through her increased confidence, improved inner strength and by 'finding her voice' – being able to articulate her needs, emotions and cognitions in a coherent manner.

The core focus of her therapy has been her own identity. By strengthening her true sense of self, she is better equipped to form close trusting relationships, particularly with her own children. Directly following the therapeutic focus on self-identity, I have focussed upon her role and identity as a mother to her sons. Following this I have addressed her role and identity in her home environment and what this would look like with a young family in her care. Finally this I have addressed her role in the local community where she would raise and integrate her children."

69. What concerns me about this passage is that it tells us about the mother's sense of personal identity but it says nothing about whether she has learned to put her children first and see events and relationships through their eyes. Rather it suggests that she is still working on her own needs. That is not intended as criticism; it may well be that the mother needs this kind of help to regain self-confidence after a very long period of illness.  But it does not appear to me to begin to address the kind of problems described by Dr Boast and the social workers.

70. At a later stage of the report, Ms Green says that the mother has expressed a keen desire to work on her child and parenting skills. She continues:

"I have worked on (the mother's) personal work/life balance and how this must be well managed when raising young children. She understands that her personal well-being and health is essential in providing good role modelling and ensuring that she can maintain healthy relationships with her children.

(The mother) and I have worked on the needs of her children, ranging from their physical, mental, emotional and socialization needs to guarantee their healthy development. Considering the limited contact that (the mother) has had with her children, it would take time to again build trust, rapport and intimacy in their relationships together. It is paramount that her children feel safe, protected and loved. (The mother) has demonstrated a good appreciation of this notion, for example by her considered response of how to bring correction when necessary and doing so in a loving manner.

Through the process of working on her own self-identity and her own boundaries, (the mother) now demonstrate an increased insight into the necessity of boundaries in the lives of her children. We have discussed in detail how she would ensure that her children have a daily routine that will bring a sense of structure and safety. Consistency when teaching boundaries, right from wrong, and bringing correction is paramount."

There follow a number of paragraphs in which Ms Green says that the mother has 'identified' the need for her children's development through the provision of proper food and attention to physical and dental health, clean  clothes regular exercise and routine sleep patterns.  Ms Green also says that the mother has 'identified' the mental needs of her children through such things as commitment and support through education at home and at school.  She has also 'identified' that her children's emotional development will require the provision of safety, attention, affirmation, guidance, listening, acceptance, nurturing and the freedom to play and have fun.

71. At paragraph 11 of the report, Ms Green says:

"(The mother) has fully engaged with ongoing Integrative Psychotherapy and EMDR. Consequently, her awareness has increased about her own thoughts, emotions, needs and desires. Her capacity to see and understand the mental states, behaviour and needs of her children has also increased, originating from her own personal insights."

And at paragraph 15:

"One key objective in therapy has been for (the mother) to form increased attachment. The primary mode we have used to increase her attachment levels is by working with unconscious material. She has responded very well to EMDR, Mindfulness-based therapy, Schema Therapy and Psychodynamic free association. Consequently, she has proven her ability to engage in a trusting relationship, albeit on a professional level."

72. In the Conclusion section, Ms Green reiterates her opinion that the mother is making excellent progress in respect of her recovery from alcoholism and the re-establishment of her self-identity.  Then she says:

"I have reasonable confidence to believe that (the mother) is fully capable of parenting her own children. The most essential need for any child is to feel loved, protected, safe and cared for. This, in my opinion, she is now able to provide.
(The mother) has demonstrated a desire to prepare herself and increase her parenting skills to her greatest ability. She has followed my recommendation to carry out additional reading.  Namely one book she has read is 'The Five Languages of Love' by Gary Chapman PhD, to increase her awareness of how to express love to her children and form intimate relationships with them and with others."

73. I have asked myself whether, if this report had been before the judge, it would or might have made any difference to his decision.  Of course, I cannot say what inroads into the opinion would or might have been made in cross-examination. For present purposes I have to take the report at face value.  My view is that the only difference this report might have made to the judge's views is that he might have been rather more optimistic about the prospects for the mother remaining free of alcohol. But as I have already said, even if the judge had been more optimistic about that, he would still have considered it to be the children's best interests to be adopted unless he were able to form a much more favourable view of the mother's ability to change and to gain insight into the children's feelings. 

74. In my judgment, this report could not persuade the judge that the mother had, in a mere four weeks, made the changes which Dr Boast considered necessary before the children could be re-introduced to her.  I say that for two reasons. First, although the mother asked for this new treatment because she wanted to satisfy the judge that she could achieve insight to the children's needs, in fact the treatment focussed to a large extent on her own continuing needs. And there was plainly a need for such work to be done. At the end of August, the mother had not yet achieved consistency in her acceptance of responsibility.  If she has now done so, that is a useful advance but it does not mean that she has gained insight into the children's needs or learned how to relate to them.  Second, although the children's needs have been discussed and the mother is said to have 'identified' several aspects of their needs, it seems to me that this has been at the level of teaching the principles of good child care rather than enabling the mother how to relate to the children personally. No doubt the mother's relationship with the children has been discussed (although without Ms Green having the benefit of Dr Boast's evidence or the judge's conclusions) and it may well be that the mother has been interested and apparently receptive to Ms Green's input.  But I cannot accept that a process which Dr Boast said would take at least 6 months and possibly a year has been successfully concluded in so short a time.  It is just too good to be true that a woman with the deep-seated shortcomings displayed by this mother could have been transformed in four weeks.  With respect to Ms Green, who has not seen the judgment or the expert reports, I do not think she has appreciated the radical nature of the change required.

75. It follows that in my judgment there is no basis on which the judge's decision can be impugned.  This appeal has given rise to yet further delay in the settlement of these children's future.  I hope that there will be no more.  I would dismiss the appeal.

Black L.J.  
76. I agree entirely with Dame Janet Smith's view that this appeal must be dismissed for the reasons she gives. I only wish to add a few observations about Mr Newton's central ground of appeal, that is that the judge applied the wrong "test" when considering whether it would be in the children's best interests to be returned to their mother and looked for too great a degree of certainty that rehabilitation would succeed.

77. It is worth turning to Baroness Hale's speech in In re B (Children) [2009] 1 AC 11 which, although dealing with the question of how risk of harm is to be established at the threshold stage, can provide assistance in the present context as well.

78. The "likely to suffer significant harm" limb of the threshold requires a court to look into the future. Similarly, as part of his determination of the mother's application for revocation of the placement orders, Judge Brasse had to look into the future and gauge how the mother's situation might evolve, applying the provisions of section 1 of the Adoption and Children Act 2002 which include the requirement that the paramount consideration must be the child's welfare throughout his life (section 1(2)) and, in section 1(4), the welfare checklist.

79. What I am interested in, in Re B, is Baroness Hale's description of what the court is doing when looking into the future for the purposes of the threshold. She said [22]:

"This case is about the meaning of the words 'is likely to suffer significant harm'. How is the court to be satisfied of such a likelihood? This is a prediction from existing facts, often from a multitude of such facts, about what has happened in the past, about the characters and personalities of the people involved, about the things they have said and done, and so on." (my emphasis)

80. Baroness Hale's characterisation of the court's task as one of "prediction" (a term also used by Lord Hoffmann at [3]) helps, I think, to underline the difference between what the court is doing when it looks at the past and what it is doing when it looks at the future. In dealing with the past, the court's task is to see what facts are established on the balance of probability. But when it comes to the future, the exercise is rather different. Thus, as is well known, "likely to suffer significant harm" for the purposes of the threshold does not mean that it is more probable than not that the harm will occur; it is enough if its happening is a real possibility, a "possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (Lord Nicholls of Birkenhead in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 at 585) although, of course, the facts on which the assessment of the future is based must be proved on the balance of probability. The way in which "harm which [the child]….is at risk of suffering" in section 1(3)(e) of the Children Act 1989 (which is mirrored in section 1(4)(e) of the Adoption and Children Act 2002)  is to be approached is similar (In re M and R [1996] 4 All ER 239 affirmed in Re B @ [54]).

81. Mr Newton's focus is not so much on future harm as on the way in which the judge approached the prospects of the mother maintaining the improvements she has made to her circumstances. However, the judge's consideration of that issue similarly involved him in making predictions about the future.

82. Mr Newton's criticism of Judge Brasse's approach to this issue is misplaced, in my view. Any judge who is determining what order would best serve a child's welfare must look at all the relevant circumstances and balance them to arrive at his decision. The concerns for the child will vary infinitely from case to case and so will the weight to be given to the various considerations. Plainly, the benefits of being brought up by a natural parent if that is safely possible will be very significant but so also will many other factors such as the child's history so far, the need to avoid further delay, the chances of successfully reuniting parent and child and the consequences for the child should there be a failed attempt to do so.  Where the child's history so far has been damaging and it is critical for the child to be in a long term dependable placement without further delay, and where the adoption placement on offer may be the child's last chance to be united in an adoption placement with his sibling, all of which was the case here, then the judge is likely to look for a greater degree of certainty in relation to the parent's ability to provide a safe and appropriate home for the child than in a case where, say, the child is still a small baby with time on his side and there have been no earlier attempts to place him with the parent. This is reminiscent of the position with regard to likely harm in section 31(1)(a) of the Children Act which accommodates the particular circumstances of the individual case by building into the court's determination a consideration of the nature and gravity of the feared harm. 

83. A judge may express his prediction for the future in various ways and there is nothing wrong with him looking, in an appropriate case, for "a high confidence" or a "very high level of confidence" that a return to the parent would be successful. Judge Brasse's references to the balance of probabilities in his paragraph 132 merely reflect the degree of confidence that he considered was required in relation to the mother's situation before he considered it in the children's best interests to revoke the placement order. He thought it would be "far too risky" to place the children with her at the moment for the reasons he identified, and his view was that they could wait no longer. Dame Janet Smith has set out fully why he was entitled to take this view on the evidence presented to him and to refuse to revoke the placement order.

84. For a pellucid example of another court (on that occasion, exceptionally, the Court of Appeal) undertaking a similar analysis, one can look to M v Warwickshire CC [2008] 1 FLR 1093. The analysis was there carried out in relation to the mother's application for leave to apply under section 24(3) for the revocation of a placement order but the discretionary element of the decision whether to grant such leave involves looking at the child's welfare so this passage from the decision is germane to the present circumstances as well. I will not replicate it here; it can be found starting at [31] on page 1105 of the report. One can see that the factors identified by Wilson LJ (as he then was) as relevant to his refusal to grant the mother leave to apply for the revocation of the placement order included a considerable number which were also present in this case.


Longmore L.J.

85. I agree with both judgments.