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CtL and CmL (Children) (Welfare Hearing: Expert Report), Re [2013] EWHC 2134 (Fam)

Welfare hearing concerning two children following a fact-finding hearing.

This hearing concerned the welfare of two children following the finding of fact hearing report at Re CtL, CmL, TLP, ARP, MM and JB (Children)(Fact finding: Protection from Sexual Harm) [2013] EWHC 2133 (Fam).

The court was concerned with two of the children, who it had been hoped by the parents could remain in long term foster care. On the second day of the hearing, the Guardian changed her view from supporting that position, to supporting the local authority application for placement orders. 

The court was critical of a 75 page report prepared by the child and adolescent psychiatrist in the case, when he had been directed to limit his report to 10 pages. The judge referred to an "abundance of tedious, even mind numbing detail" in the report [para. 32]. He recommended long term foster care for the children, as a result of their ages (9 and 4) and the risk of placement breakdown. His primary recommendation was for the children to remain with their current foster carers, despite that being only a short term placement, and he maintained in evidence that long term fostering could provide permanence, which the judge described as bewildering. The expert had also recommended unsupervised contact after the first year. The court found that he had failed to use the judgment from the finding of fact as a starting point. 

The judge observed: "I could scarcely believe what I was reading" [para. 36] and described the recommendation for unsupervised contact as ludicrous. 

Overall, the expert's recommendations were described as wholly unsustainable and the court expressed regret at involving such an expert, which she had done at the request of all parties. 

Considering all the relevant factors, and recognising how confusing the court process must have been for the family, the judge made the placement orders and dispensed with the parents' consent. 

Summary  by Jacqui Thomas, barrister, 37 Park Square Chambers

Neutral Citation Number: [2013] EWHC 2134 (Fam)
Case No: FC11C00123


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/06/2013

Before :

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Re CtL and CmL (Children)(Welfare Hearing: Expert Report)
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Alistair Perkins for the local authority, the London Borough of Sutton
Pauline Troy
for AP, the mother
Julie Stather for GL, the father
Roisin Magee for RC, the maternal grandmother
Deborah Jacobs for the Children's Guardian, Karen Gorbutt

Hearing dates: 18th, 19th and 21st June 2013
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This judgment is consists of 55 paragraphs.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Pauffley :

1. This has been the concluding part of care proceedings for two children. It has been the sequel to a lengthy fact finding hearing affecting this and two other inter-related families on 1st March this year.

2. The process this week has been more than usually distressing for the parents and maternal grandmother because they have had to contend with an unexpected change of position on the part of the Children's Guardian, Karen Gorbutt. Whereas it had been her position until just last week that she appeared to be supporting a placement for both children within a long term foster home, since the second day of the hearing, Wednesday, Ms Gorbutt has instead aligned herself entirely with the local authority which seeks care and placement orders as the first step towards adoption.

3. Ms Gorbutt is, I know, regretful that the parents in particular have had to confront what they have undoubtedly seen as very bad news when they had  been expecting support from her. It has been and remains their hope that they would be able, long term and throughout the children's minorities, to maintain contact with them whilst they made their home with foster parents.

4. It should be acknowledged in her favour that Ms Gorbutt spent an appreciable part of Wednesday morning explaining to both parents – and later on the grandmother as well – the reasons which lay behind her changed position. The mother should be given credit, as Ms Gorbutt has commented, for responding with dignity to what she was being told. The father was extremely courageous when on Wednesday afternoon he agreed with my suggestion that he might explain his position in his own words from the witness box. Through his very understandable and utterly genuine tears, he told me he understands his children need permanency. His only concern is that they should not lose the sense of who their parents are. He knows that what is required by the children is stability. He did not need to say that the situation is nothing short of heart breaking for him. That much was clear for everyone to see, as it is I'm quite sure, for the mother as well.

5. The father has remained in court throughout. The mother was too distressed to come in at all on Wednesday. No one could blame her. The grandmother, who could not be at court on Wednesday morning because she had to attend an important appointment, chose not to come in to listen to the guardian's evidence that afternoon given her grief at the change in Ms Gorbutt's position. Again, her choice was altogether understandable.

6. To that extent, the hearing has been unusual. The only evidence given orally, other than briefly by the father, has been by professional witnesses.

Essential background
7. The children for whom a decision is both urgent and overdue are Ct who is just 7 years old, born in May 2006, and Cm who was born in June 2009 so he is only 4. The background to these proceedings requires no repetition here. It was dealt with extensively during the March 1st judgment. Nor is it necessary to repeat what I said about the parents and the maternal grandmother. All of that is a matter of record. This judgment has to be seen for what it is – the sequel to that which came before.

Developments since the February hearing

8. Since the hearing in February, there have been a few developments of significance. First, a consultant child and adolescent psychiatrist, Dr Mike Blows, was instructed to advise to assist the local authority and the court in relation to care planning for the children; and in particular as to whether long term fostering or adoption would better meet their welfare needs. He was requested to assess attachments between the adults and children as well as between the siblings and also to make recommendation about contact. 

9. Dr Blows carried out his inquiries and interviews in late April and produced his report on 2nd June, well after the due date of 17th May. Somewhat mysteriously, the report bears the date 10th May which Dr Blows accepts is an error. Be that as it may.

10. The other development of some significance is that the mother who had been living in the Birmingham area at the time of the February hearing has moved to live with her father and his partner in Cornwall. She has continued to come to London for contact with the children and continues to show great commitment to them as indeed does their father.

Parties' positions
11. The parties' positions on the key issue are simply stated. In her heart, I'm quite sure the mother would wish above all else that she were able to make a case for the children to come back to live with her. The statement she made a week ago makes that abundantly clear and notwithstanding the welfare decisions made at the February hearing.

12. At the end of the February hearing, I ruled out any prospect of the children being placed back with their mother or indeed their father. Last week, in the light of AP's recent lengthy statement in which she made clear she wished nonetheless to be reunited with the children at her father's home in Cornwall, it was necessary for me to set out the stark realities, which I did.

13. AP's secondary position, advanced on her behalf by Ms Troy, is to seek to achieve a result which would enable her to continue to have face to face contact with the children. She wishes, relying on Dr Blows' advice, that Ct and Cm should be placed with long term foster parents (she would consent to a care order formulated on that basis), and she would wish to see them as much as possible; no doubt, in surroundings which are as natural as can be arranged. AP would be quite content to share contact visits with the children's father, GL.

14. The father, GL, is to be admired as I've said already for his insight and ability to look at the issue of what should happen to the children with their interests rather than his own at the forefront. GL does not oppose but neither can he bring himself to consent to the making of placement orders. He is able to understand what the children need in a way that very few parents caught up in care proceedings can because, for the most part, their own wishes take priority. I found his altruism both commendable and humbling.

15. The children's maternal grandmother, RC, invites me to accept Dr Blows' written evidence in which he said, contrary to the opinion he expressed orally, that RC is an attachment figure for the children. Miss Magee suggests the search for adoptive parents should be brought to an end at the six month point, as had been suggested by evidence given at the February hearing by another member of the family finding team, Sammy Forbes. However, RC does not suggest the search for an adoptive family should be made more complicated by imposing a pre-condition of ongoing face to face contact.

Dr Blows' contribution
16. Dr Blows' contribution has had a very considerable impact upon this process, as would be expected given his expertise and the extent to which it had been thought he would have been able to assist in decision making. Judges and practitioners from whichever discipline, legal or social work, repose trust in experts, be they psychiatrists or psychologists, to provide helpful analysis in relation to the key questions asked and make recommendations upon welfare issues in line with mainstream thinking. Indeed many experts nowadays will include a few short sentences within the body or at the end of their reports indicating, one way or the other, whether their opinions and advice would be viewed by others within their specialty as conventional.

17. Dr Blows was instructed on 20th March 2013. The letter of instruction also contained this unambiguous message – "Mrs Justice Pauffley has directed that your report shall be no longer than 10 pages. Any need to refer to interviews or observations should be included as an annexe to your report."

18. The report, when it came, extended to 75 pages. It contained inordinately detailed, almost minute by minute, accounts of Dr Blows' observations made at contact visits as between the children, their mother, their father and then their mother and grandmother together, three in all. There were also recitals of the extensive and minutely detailed discussions Dr Blows had with the mother, the father and the children's short term foster parents. He saw and interviewed the children. He carried out a School Age Assessment of Attachment in relation to Ct.

19. It is only on page 55 of his report that Dr Blows begins to confront the questions asked of him. He referred to what had been described by Miss Gillard as "insecure and ambivalent attachment patterns" as between the children, their mother and grandmother, less evident with the father. Nine pages of Dr Blows' conclusions are devoted to what he prefers to refer to as "Type C attachment strategies." He provides a great deal of detail as to what that means for the children's behaviour, their patterns of interacting with their parents, grandmother and also their foster parents.

20. In just three pages, Dr Blows deals with what might have been thought to be the questions of overriding importance at this hearing, namely those directed at the children's future placement needs. He begins with this – that "there is a potential risk for adoption, by dint of their age; in particular Ct, and long term fostering because of the high rates of placement breakdown." He then deals with the sibling relationship and concludes that the children should be placed together. No one at this hearing, I should make clear, has suggested any other course should be followed.

21. Dr Blows comments extensively in this section of his report with Ct's coercive behaviour and that, at her age, establishing new more adaptive attachment relationships will be more difficult.  He opines that a complete cessation of Ct's relationship with her mother will be felt as a loss (which her strategy is set up to avoid) and that it will be difficult for her future carers to remove that sense of potential or impending loss. He thinks it likely, even with a less maladaptive strategy Ct will continue to be anxious and coercive in her future relationships. She will be particularly at risk of presenting with somatic symptoms such as getting attention or showing protest through aches and pains or struggles over normal functions (currently her eating).

22. In his next paragraph, Dr Blows says this – "Ideally then, given the risk of the next new carers, the children should stay with their current foster carers long term. I don't know, but assuming that this isn't possible, then on balance I would recommend long term fostering." I pause to mention that throughout the time the children have lived in foster care, it has been clear that there is no possibility of them being able to stay where they are. The foster parents are short term foster parents and do not wish to be considered for a long term role of any kind.

23. Dr Blows provides two reasons to support his long term fostering recommendation, as follows – "…. by dint of their age; I think there is less likely to be an advantage in reduced placement breakdown rates of adoption, compared to long term fostering. If both children were pre-school, I think this balance of risk would be less, with adoption. The second strand of his argument is that, "There is also the added risk that it is harder to find adoptive parents of two children of this age, and that family finding can take a long time, adding to the risk of moving from an established foster placement to another new carer." He then added that the "risk of placement breakdown in long term foster placements is around 40-50%".

24. When he gave oral evidence, Dr Blows whilst holding to his placement recommendation made two early references to "permanence" as follows – he said, "ideally Ct and Cm would be in their permanent placement now"; and a little later, "the children are looking for someone to care for them permanently." He was asked about the risks of placement breakdown in each situation and referred to "numerous studies which report breakdown in fostering placements approaching 50%." He said the risk of breakdown in adoptive placements was much less, about 20%.

25. Dr Blows held to his theme which is that the children should stay with their current carers because that "would mitigate against the risk of another placement breakdown" which, as he sees it, is the single biggest risk factor, "trumping all others."

26. Just before we broke for lunch on Tuesday, I asked Dr Blows whether or not I was right to believe that the children's overriding and urgent need is to be found a permanent alternative family; and that, as all involved with the family justice would have to recognise, there is only one route towards securing that ambition which is adoption. He did not agree, saying that long term fostering could provide permanence as well – a bewildering answer to say the least.

27. Later, Dr Blows referred to Ct's "psychological internal model" which he said was now "firmly based on this dance with her mother." He added that losing relationships which are poor is much more difficult than losing those which are good. It is, he said, the opposite of what you would expect. Dr Blows believes there "is a lot of risk to come in the next 12 – 15 month period which will make it more difficult for Ct to make "an adaptive relationship with a new carer." But he added, "we have got a window of 3 to 4 years. If she is moved now, we will have some chance of reparation." In answer to questions posed by Ms Troy, Dr Blows said that "within 6 months from now, Ct's behaviour will start to get worse." He is not saying her behaviour may get worse or that in all probability it will deteriorate, Dr Blows says, categorically, it will get worse and in 6 months time.

28. Dr Blows answered a series of my questions so as to establish whether he is aware of the ways in which the family justice system is undergoing a major process of reform. I asked whether he knew about the views which have been expressed by the President about the ways in which experts have been and, in future, are to be utilised. I inquired as to whether he knew about the major change of culture, supported as it is by Practice Direction, requiring experts to produce shorter reports, focussed on analysis and opinion rather than history and narrative.

29. In answer to all of my questions, Dr Blows said he was aware of and up to date with these developments. The source of his knowledge lay in the professional networks to which he belonged, online.

30. I pause to reflect upon the material which was supplied to Dr Blows at the time of his instruction. It should have been obvious that the document which required more attention than any other was the judgment given on 1st March. Within that document, there are not only findings of considerable importance when planning for the children's future (the insidious harm from which they must be protected) there are also many paragraphs which dealt with the reasons why it would not have been appropriate to embark upon any exercise of re-assessing the mother's ability to meet the children's emotional needs and protect them from the risk of sexual harm.

31. It is not evident from the content of Dr Blows' report nor from his oral evidence that the judgment provided him with any kind of starting point. There is scant reference to it – mere recitals that neither the mother nor the father agreed with the findings as against them. My sense was that Dr Blows had no real understanding of the status to be accorded to the judgment itself, particularly as it had dealt with 'welfare checklist' factors.

32. His report contained an abundance of tedious, even mind numbing, detail about the events at the contact visits he attended as well as senseless questions (for present purposes) of the parents themselves. To cite just three examples, it was not necessary to ask the father whether he had asked his parents about the reason for their separation. Nor was there a need to deal, as Dr Blows did in his discussion with the mother (2 hours over the telephone) with the physical circumstances surrounding the birth of the two children or what her own mother did when she was naughty as a child. There is a mass of material stemming from Dr Blows investigative work which, to my mind, was completely unnecessary.

33. His focus should have been on advising the court about the children's placement needs. He should have discussed the shortcomings, well known to practitioners of all kinds, of long term fostering for children of these ages. He ought to have considered and discussed the relative advantages of adoption. There is not one word, anywhere in his report, about the children's need for stability, security and for the assurance that those who will be looking after them for the remainder of their minority are fully committed to them. Nor is there any elaboration of the various obvious disadvantages for the children of continuing to be "looked after children" for the next 11 and 14 years respectively, as would be the case if they were to live with foster parents. Nor does Dr Blows confront the obvious and very disadvantageous emotional consequences for the children of the potential for further disrupted placements.

34. Maybe Dr Blows discounted the need for any analysis of those matters because he considered them obvious, but his oral evidence did not support that possibility. Perhaps he became so affected by his sympathy for the mother that he felt unable to recommend adoption for the children. Certainly, the opening remarks in that part of his report which deals with "any other matters" mentions the mother's distress as a relevant consideration – "I think the current situation and inevitable reduction in frequency of contact, will be most distressing for AP."

35. Dr Blows' recommendations as to contact deserve mention as well. In summary, he suggested that, if in long term foster care, the children should have two monthly contact with each parent and that a reasonable frequency for children of these ages is every six to eight weeks. His report makes clear he had "canvassed informally from other colleagues working with looked after children … and this frequency is cited as the most reasonable to balance out and mitigate difficulties." One of the more remarkable of Dr Blows' recommendations was that after the first year, the parents' contact might become unsupervised, after a review by the local authority.

36. I could scarcely believe what I was reading. Against the background of the findings made within the 1st March judgment, the overwhelming need to provide the children with a permanent family and the mother's obvious, though understandable, limitations in being able to lend her full support to the children being cared for other than by her – Dr Blows' proposal for the removal of contact supervision was quite ludicrous.

37. Whatever the reasons for the obvious deficiencies in his report, I am driven to conclude that they are just that – significant shortcomings – but also that his recommendations, all things considered, are wholly unsustainable.

38. With the benefit of hindsight, I regret the decision to involve a child and adolescent psychiatrist. After the February hearing, I was faced with a consensus that it was appropriate and entirely necessary to instruct such an expert. In the light of what has happened since, I wish I had done one of two things. Either I should have suggested to the local authority that the evidence required could have come from a combination of the allocated social worker and a manager within the family finding team; or Amanda Gillard, the independent social worker who has already provided truly excellent assessment reports in these proceedings should have been approached again. Upon reflection, I do not consider a psychiatrist / psychologist was needed; and I shall be on my guard in future to avoid involving such an expert.  

Other professional evidence
39. Dr Blows' advice about long term fostering as compared with adoption is fundamentally awry when account is taken of the other professional witnesses in this case – Calvin Dawkins the allocated social worker, Ms Addenmosun of the local authority's Adoption and Permanence Team and also the guardian, Karen Gorbutt. In combination, those three witnesses attested to the desirability, feasibility and overwhelming priority for the children of providing them with a permanent family through adoption. Their evidence resonated with a body of knowledge personally acquired as the result of some 33 years experience within the family justice system.

40. Ms Gorbutt said she was very reassured by the content of the children's care plans, supported the applications for care orders and, although not formally appointed in the placement order application, similarly supported the local authority's proposals. She is, she said, very relieved by the content of the evidence supplied by Ms Addenmosun on behalf of the family finding team. Moreover, Ms Gorbutt said could not agree with Dr Blows when he suggested Ct's unresolved loss of the relationship with her mother would be a reason to favour long term over adoption. As she said, losses of that kind are what professionals in the field "deal with all the time in cases of this kind." Contact, which may be face to face or indirect is "always about promoting identity and mitigating against unresolved loss." Ms Gorbutt could not agree with Dr Blows as to the preference he accorded to long term fostering because, as she said, there are "too many variables" and permanency by adoption offers a better chance for children with "less of the risk factors."

Discussion and conclusions
41. I altogether accept that for the parents and RC, the maternal grandmother, this court process must have been both confusing and extremely distressing. They must have been encouraged by Dr Blows' support for the long term fostering option, including as it did face to face contact. A little over a week ago, it was said on behalf of the guardian that she favoured the outcome suggested by Dr Blows. During the course of Tuesday and especially Wednesday, the hearing evolved in a way which the parents and maternal grandmother must have found both bewildering and enormously distressing.

42. I have no doubt at all that all three of them do indeed love the children and that their affection is reciprocated. More than enough has been said already though about the quality of the children's attachments – I am entirely content to accept Amanda Gillard's analysis which is that the attachments are both ambivalent and insecure. I understand what that means as do all of the other professionals involved in the proceedings.

43. The children's overwhelmingly pressing need now is to move within a family which they will be able to call their own. They require complete security and stability. They should be entitled to expect that there will never be another disruption in their living arrangements – in other words that they will stay with whichever family they move to when they leave their current short term foster parents. They require parents who will be committed to and prepared to take full responsibility for them, without the input of social workers long term.

44. Ct and Cm need all of the advantages which would be available to them in an adoptive placement. They deserve to feel that they will truly belong within that family and that nothing will happen so as to dislodge their sense of security and permanence.

45. I am altogether aware that finding a suitable adoptive placement will not happen in a trice. It is a process which will take some months. The exercise will be undertaken by one of the family finding social workers within the team. If Ms Addenmosun is representative of the calibre of worker within the team, and I have no reason to think she is not, then I am bound to say I am very reassured. Finding a family for a sibling group of two and of these ages will not be an altogether straightforward task, but it is by no means impossible. I am completely convinced that there should be a search and that it would be quite wrong, at this stage, to plan on the basis of long term fostering only.

46. My own recent experience suggests the potential for success may be a great deal better than is suggested. In January and February this year, I had involvement a case where another London Borough was required to undertake a search for three siblings – the eldest was 7, the youngest a little short of 2. The placement order was made in February on the basis that the children should remain with one another rather than separated. Those children have already been placed with prospective adopters due, I'm quite sure, to the commendable energy, enthusiasm and dedication of the family finding social worker.

47. In this case the local authority plans for three monthly reviews of progress. As Ms Addensmosun said, the search would be "tightly monitored" and at the 9 month point, there would be active consideration as to whether it was worthwhile to continue the search for adopters. If it is decided not, then the Agency Decision Maker would be approached and asked to approve instead a search for long term foster parents. The maximum period in which the local authority would seek to identify adopters is 12 months.

48. All of those proposals, reflected as they will be in the children's care plans, seem to me to be entirely appropriate and I endorse them.

49.   Mr Dawkins Placement Order Application Report is an impressive document which persuades me, in combination with everything else, that the children's welfare will be safeguarded and promoted by the making of such an order. Having considered the various matters set out within the welfare checklist comprised within s.1(4) of the 2002 Act I am altogether satisfied that adoption orders will best serve the children's welfare interests throughout their lives.

50. I am entirely persuaded that it is necessary and proportionate to interfere with the mother's and the children's Article 8 rights in the way proposed by the local authority's final care plan on the basis that the children's welfare requires such an intervention and that no lesser form of intrusion would suffice so as to preserve their safety as well as ensure their development throughout their childhood and beyond.

51. I dispense with the mother's and the father's consents to a placement order pursuant to s. 52(1) of the Adoption and Children Act 2002 on the basis that the children's welfare demands that I should do so.

52. The corollary issue is as to whether I should require the family finding team to explicitly search for adopters who would be prepared to countenance some albeit limited face to face contact between the children, their parents and indeed their maternal grandmother.

53. The local authority's care plans describe the way in which the parents' contact will be tapered downwards from its current fortnightly pattern so that, over a relatively short period, it will become quarterly whilst the search for adopters is ongoing. That, it seems to me, it altogether appropriate and consistent with the children's welfare needs.

54. I have considered but rejected the suggestion that the local authority should be required to identify prospective adopters who will agree to ongoing face to face contact. Although I know how earnestly the mother would wish for ongoing direct contact, I also know that the search for adopters will be made immeasurably more difficult even, perhaps, impossible if I were to require the insertion of that provision.

55. For sure, I would not preclude gentle inquiries of any prospective family as to their views about ongoing contact. If there were to be a positive response then appropriate consideration of the issue would be the responsibility of the local authority in tandem with the Independent Reviewing Officer. But it would be pure folly, because of the impact upon the family finding search, to make a contact order as is, perhaps, suggested.

56. Finally, I should just say this. The mother has had first rate representation at this hearing and throughout. Ms Troy made her final submissions saying everything she could have said on her client's behalf whilst recognising the realistic realities. She acknowledged that aspects of Dr Blows' evidence that I might not "find entirely persuasive." Ms Troy so very correctly identifies that the child need their mother's blessing and permission to make the transition into their permanent home. Ms Troy pushes at an open door when she asks me to accept her client is vulnerable; and that she is very much a victim of the circumstances into which she was born and brought up. I also accept that the mother would not deliberately or wilfully behave in a way that would be intentionally harmful to them.

57. AP is in urgent need of help. She continued to cut a sorry, very vulnerable and painfully thin figure in court earlier this week. She had had a distressing argument with her mother before they came into court on Tuesday. In her recent discussions with Ms Gorbutt, AP has said, "It's easier for you – you're on the outside looking in. I'm still in."

58. Ms Gorbutt says, and I entirely agree, that the mother "needs help to obtain help." I fervently hope that in the aftermath of this desperately sad chapter of her life, she will take and act upon that advice. I said in March and now repeat that the mother's problems are of long standing; they track right back to her early childhood. They may well be susceptible to therapeutic intervention. AP owes it to herself and also to the children, so that she is able to make a good contribution to indirect contact, to begin the exercise of finding the help she so desperately needs.