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Re K [2021] EWHC 1409 (Fam)

A rehearing by the President, the Right Honourable Sir Andrew McFarlane, in May 2021, , following a successful appeal in November 2020 of Keehan J’s welfare decisions in September 2020 for placement orders. At the rehearing, there was a concessions that Keehan J’s decision to make placement orders was correct. There was an additional psychological assessment of the parents and an expert recommendation for therapy and rehabilitation, but ultimately the President made the placement orders sought by the local authority and guardian, based on there being no realistic prospect of therapy producing sufficient enduring change.

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The children

The children are now approximately 4, 3, and 1 years old. There are early signs that one of the children may have a degree of learning disability. After many moves in their short lives, they are currently together in a foster placement where they have been for six months, but which is unable to provide a long-term home for them. The local authority wishes to place them together for adoption, which it acknowledged may not be possible (paras 19-20).

Background

In May 2017, the eldest child (at that time the only child), who was then only 72 days old, was taken to hospital and spent the night there due to a bruise on his eyebrow. Although the court determined that he had sustained the injury during a domestic abuse incident involving both parents (para 17), the parents question the finding and even question whether there was in fact a bruise. The President notes, however, that the injury and domestic abuse incident were not the factors that triggered a plan for adoption. He cites the "sustained and multi-layered dishonesty that each parent has demonstrated" as causing a risk of harm to the children in the future (para 113).

Both parents were born in West Africa, had lived in the UK for several years, and the father had the benefit of a Twi interpreter during proceedings. There was no evidence of either parent having any addiction or criminal history, but according to the President, the parents had made "unrelenting efforts… to avoid engagement with the local authority and with the court, and to conceal… their subsequent children" (para 1).

Proceedings

Upon learning that care proceedings had been initiated in December 2017, the mother left the jurisdiction with their only child (at that time), so the matter was allocated to the High Court. The mother then returned without the child, and it is understood that the child remained in the care of his maternal grandmother in Africa.

Subsequently both parents left the jurisdiction. The second child was born in Florida in July 2018 and shortly after, both children were placed in care in the USA. After proceedings in Florida, both children were returned to the UK in late 2018 and placed in the same foster care under an ICO.

After a six-day fact-finding hearing in March 2019, Keehan J made a number of findings, which were not formally challenged, but many of which the parents seemingly never accepted.

In late 2019, the father presented as separated from the mother and put himself forward as sole carer, and Keehan J went against the recommendations of both the local authority and the guardian, determining that a rehabilitation plan should be implemented. The father made a number of promises to the court, including not contacting the mother, although later records showed he did so immediately after leaving court (para 10). Keehan J had told the father that if the father breached his promises, it was likely that the court would be "compelled and left with no choice but to place his children for adoption" (para 15, citing para 100).

Meanwhile, there had been further evasive behaviour from the parents, including the mother giving birth to the third child under a false name and address in a hospital in the Republic of Ireland in September 2019. The mother had stopped attending contact with her two boys in June 2019, to avoid her pregnancy being detected. She resumed contact with the older children in December 2019 but did not disclose the existence of their baby sister to them. There was an alleged domestic abuse incident involving both parents on 26 November 2019, which involved the police (para 65), but the baby girl became known to authorities only in January 2020, when the police stopped the parents in a car and the baby was with them (para 9). The baby was removed into police protection (para 14).

In September 2020, after another six-day hearing, to consider the welfare evidence, Keehan J's judgment made clear that the parents' "serial" and "egregious" lying made him conclude that he could "not trust a single word said by either of these parents" (para 15, citing paras 97, 98 and 102). He seemed particularly aggrieved that the father had lied to the court (para 15, citing para 98). Keehan J determined, among other things:


- The parents did not regret their actions during the course of these proceedings;

- They do not even "begin to understand or accept the significant harm the children have suffered in their care and the significant harm they would each be at risk of suffering if they were returned to the parents' care in the future";

- The prospects of the parents making "any positive changes for the better are remote, whether in the short, medium or long term" (para 15, citing para 103); and

- The children were at risk of future harm in part because of the risk of "the stability of their lives being disrupted and abruptly changed over the years to come" (para 15, citing para 107(vi)).

Keehan J's welfare decision was for final care orders and placement orders. At this point, there had been 30 hearings in the English family court in the 2 ¾ years between December 2017 and September 2020.

Appeal and rehearing

The appeal was allowed on the ground that Keehan J did not properly identify the risk of future harm to the children when undertaking his final welfare analysis (para 3). No findings of fact in either the fact-finding hearing or the welfare hearing were challenged (although many of them were also not accepted by the parents). The Court of Appeal set aside Keehan J's welfare determination and remitted the matter to the High Court for re-determination.

In his judgment, the President makes clear he did not rely on Keehan J's welfare analysis or any observation that the Court of Appeal made about it. He makes his own evaluation based upon:


- the findings of fact that have already been made; and

- the altered position and additional evidence that is now before the court (para 5) including a psychological assessment of both parents by Dr Banks.

The assessment of Dr Banks (paras 21-37) concluded that the parents would benefit from twenty sessions of couples counselling over six months, and that such work was within the children's timescales (para 47). The parents were willing to undergo the therapy recommended and sought an adjournment, of at least four months, to review their progress. Nonetheless, the local authority pursued adoption, supported by the guardian.

The President heard evidence over five days in May 2021, including from Dr Banks.

Decision
The parents had conceded that, at the time of Keehan J's decision, there was "no alternative but to order that the three children should be placed for adoption" (para 106). The President therefore focused his evaluation on the changes since August 2020. He established a baseline of the harm the children would suffer if returned to their parents' care that day, without any attempt at therapeutic intervention (paras 111-113).

The President set out the risk of future harm arising from "the sustained and multi-layered dishonesty that each parent has demonstrated" (paras 113 and 116), including risks that the children would:
- be removed from this jurisdiction and/or would not be made available to the local authority;
- have "a wholly unstable home life";
- be exposed to habitual and consistent lies and be unable to rely on what their parents say;
- have haphazard and unpredictable access to health care, schooling and education; and
- be exposed to the unstable parental relationship including episodes of domestic abuse.

The President concluded that Dr Banks's recommendation for therapy and his belief that a single course would turn around the situation seemed to be "wholly at odds with, and not supported by, the body of his report" (para 91). The President focused on Dr Banks's repeated evidence, both written and oral, that "it would be very difficult to establish a cooperative agreement with the parents that would hold up, due to the high level of the parents' defensive avoidance, their denial and their huge degree of psychological defendedness" (paras 25, 35, 51, and 91).

The President found the parents' responses to Keehan J's findings of fact to be "wholly minimal and self-serving" (para 95). He also determined that the parents had told further lies in their oral evidence and noted the mother's evidence about couples counselling at the church as a "blatant lie" (paras 97-98). The President noted that the parents' apparent willingness to undergo therapy was "lip-service", but he did allow that the parents may not be deliberately doing so and may be incapable of seeing the truth (para 126).

The President directed himself to the law (paras 101-104): the court's paramount consideration being 'the child's welfare throughout his life' and having regard to the adoption welfare checklist set out in ACA 2002, s 1(4), citing the usual, unchallenged cases of Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; Re B-S [2013] EWCA Civ 1146; Re R (A Child) [2014] EWCA Civ 1625]; and In Re B (A Child) [2013] UKSC 33. The President ultimately concluded that there is "no realistic prospect of therapy producing sufficient enduring change" and that he would stand by this conclusion "[e]ven if a positive report were received after four months" (para 128).

On a side note, there is helpful guidance about the appropriate situations to publicise children's availability for adoption and what type of evidence is required to enable the court to make such a determination (paras 19 and 133).


Case summary by Lauren Suding, Barrister, Field Court Chambers.

For full case, please see BAILII