Gloucestershire County Council v M & Ors is a recently published case where a family court judge at circuit judge level applied routine, established law to the particular circumstances of a 9 month old baby boy and his vulnerable young mother.
Through no fault of her own, she had been badly affected by the parenting she received and her time in the care system and she was found to be not far enough on the road to change through therapy, to be the safe parent her son needed, within a time frame that was realistic for his needs.
Several difficulties were thought to be affecting her parenting but the underlying one that really affected the decision that her child could not return home was her mental health / personality functioning, which (as she accepted) was only really likely to change through therapy. She had recently accepted the need for therapy after digesting a formal diagnosis just 5 months before the final hearing. Though Gloucestershire County Council had supported reunification through a joint foster placement, a respite joint foster placement and funding a ‘therapeutic’ mother and baby assessment unit, His Honour Judge Wildblood observed that:
“This case is yet another reminder of just how important it is for early therapeutic intervention to be offered to young parents; if this mother had been offered, and had engaged in, therapy in the non-proceedings stage when she was known to be pregnant the outcome might have been very different and the very high cost and misery of these proceedings might have been avoided.”
It is only relatively recently, as a result of the Presidents Transparency Guidance on publication of judgments that ‘routine’ legal decisions, that don’t make any new law, but couldn’t be more important to the children and families they affect, have begun to be published. We highlight this one, because the issues affect many parents in care proceedings and some parents at earlier stages of the child protection process may be helped by knowing how the court is likely to apply the law by the time of a final decision in any later care proceedings.
Issues the case highlights
- The legal duty to support parents with parenting; and the limits of that duty where it conflicts with the child’s needs
- The vital importance, for parents with mental health or personality functioning problems affecting their parenting, of early mental health assessment and therapeutic support
- The established law on the advantages of adoption over long term fostering for many babies and young children
This was the final hearing of Gloucestershire County Councils application for a Care Order and permission to place the child for adoption (Placement Order), supported by the guardian and opposed by his mother who asked for an adjournment for therapy to reach the standard of parenting he required.
She accepted that her parenting warranted state intervention but disagreed that adoption was required yet, on the basis she had made recent progress, had good underlying parenting ability, love and commitment to her son and therapy was now available to her.
The decision was therefore what permanence plan her baby required from the realistic options available of:
- Delay with more time in foster care to see if his mother could change through therapy; or
- Adoption with loss of contact with his birth mother and half sibling; or
- Long term fostering (arguably not a realistic option on these case facts but relevant for some children and considered briefly here)
- The baby was 9 months old. He had spent 6 months in foster care and was having supervised contact twice weekly with his mother by the final hearing
- She was a young parent of 20 who had experienced abuse and neglect from her own parents, followed by multiple care placements and disrupted education from the age of 14 when she went into care. She had a history of misuse of alcohol and drugs; and of domestic abuse with continuing uncertainty expressed by professionals about her insight into the need to remain separate from violent and abusive partners; as well as a lack of support networks as a result of her experiences
- Reports from the mother and baby foster placement she had left, the therapeutic residential assessment that terminated her placement and the mental health services (etc) willing to support her in the community, all described her behaviour as challenging, confrontational and aggressive when under pressure (including after contact had been increased to include overnight contact at the unit leading to the placement breakdown)
- A half sibling had previously been placed with a relative after injuries found by a family court to have been probably committed by her or her violent ex partner with the other failing to protect her
- She first obtained a diagnosis from a consultant psychiatrist, of emotionally unstable personality disorder (impulsive), within the care proceedings, 5 months before the final hearing.
- Everyone agreed the mother’s basic parenting ability was good, other than when she became overwhelmed by her own emotions, losing the ability to keep her son safe emotionally or physically in those moments or as the Judge put it “to use everyday language, they say that she flies off the handle in such an extreme and unregulated way that she would be an emotional and physical danger to B if he were in her care”.
- They also agreed that in the final weeks leading up to the final hearing this had improved and that she accepted a need for therapy and social support
The Judge was required to weigh the advantages and risks of each realistic, long term option for the child and decide whether adoption was necessary and proportionate on the basis that no other option could meet his needs.
“Support to Parent”
That included being satisfied that there was no other practical and realistic way to provide the support this mother needed to parent:
“In considering the care that a parent might be able to provide for a child it is important to recollect the concept of parenting with support. The President stressed the significant of the concept in a reported case called D (A Child) (No 3)  EWFC 1 in which he referred to the decision of the then Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability)  NIFam 8, para 5. The very purpose of the welfare state is to provide support for those in need (as was said in Soares de Milo v Portugal, ECHR, Requête no 72850/14, para 106). The Local Authority must place evidence before the court of the support that is available to parents so that the court is then able to make a satisfactory welfare evaluation – Re W  EWCA Civ 1227“.
The decision to agree the plan for adoption and make the placement order
“The overwhelming preponderance of evidence is that mother could not care for B safely in the community as matters currently stand even with the impressive support that is available.”
“There is reason to hope that [she] would respond well to a combination of drug and psychological therapy.”
“Even if she did… that process is way beyond the timescales for B. It could not possibly be in his interests, either in the short-term or in the long-term, for him to remain in interim foster care, probably for the next year, while the mother undergoes the course of therapy.”
” It is always possible to extend the time-table for cases where to do so is ‘necessary to enable the court to resolve the proceedings justly’ – see s 32(5) of the amended Children Act 1989 and, e.g. Re NL (Appeal: Interim Care Order; Facts and Reasons)  1FLR 1384 and Re M-F (Children)  2014] EWCA Civ 991. However, in this case, it would be positively unjust to the child and contrary to his welfare to do so.”
The risk of emotional distress to him in later life arising from “loss of a chance of an upbringing within his natural family and possible contact with his half-sister and father” was, said HHJ Wildblood, “far outweighed by the advantages that adoption would confer and the damage that would be caused by delayed decision-making.”
Why fostering wouldn’t do instead
In theory long term fostering was a third option. Plainly it is a realistic (even the most realistic option) for some children, including those who are harder to place, older, or who have attachments to short term foster carers offering long term care etc. (See Re Y (Children)  EWCA Civ 1091 for a Court of Appeal decision the day before this judgment, based on judicial failure to consider long term fostering for children aged 7 and 4 who were in a successful foster placement that could be made permanent). Arguably in a case like this one, without such indicators, long term fostering is not even a realistic option. Nevertheless HHJ Wildblood explicitly considered and ruled it out as an option, at the request of counsel for the mother, referencing and applying established law on the differences for children between adoption and fostering at para 44:
“Long-term fostering is not a viable solution for him, in my opinion. It would not provide him with anything like the same degree of necessary security, permanence or integration. Further, fostering would be subject to applications by the mother for discharge of the underlying care order. Importantly, in my opinion, when B became adult, the legal connection between him and the foster carers’ family would end, unlike with adoption which would provide him with a lifelong place in the adoptive family. I have read and noted the differences between adoption and fostering identified by Black LJ (with caveats expressed in para 95 of her judgment) in para 96 of Re V  EWCA Civ 913.”
The vital importance for parents with mental health or personality functioning problems affecting their parenting, of early mental health assessment and therapy
There is some suggestion that the ‘therapy’ offered to this mother (which she avidly took up) during the residential placement was not appropriate and more like anger management counseling. But this isn’t explored in detail. Nor is there any analysis of what mental health assessment was or was not offered to her previously, within the former care proceedings, after removal of her first child, or during the pre birth assessment and planning process for this child. It seems reasonable to assume it was not offered during these crucial earlier windows, given HHJ Wildbloods observation.
These issues for parents have attracted research and discussion over several years now as well as comment in previous judgments, including from this Judge. A number of projects have started to try to fill the gaps for parents and children, including Families In Care in Tyneside and Pause (now operating in 5 London boroughs, Newcastle, Hull and Doncaster according to their website). Unfortunately at the moment they offer pockets of innovative practice rather than a safety net that all parents in need can rely on.
Family Rights Group are however campaigning for a right to therapy for parents after a child has been removed, to be introduced into the Children and Social Work Bill. See here.
They also offer advocacy by phone call or letter/email to young parents, which could include help to press for early mental health assessments and funding of therapy. See here for referral form.
Parents on low income or benefits may qualify for a short piece of free legal advice and help from a family law solicitor during child protection procedures / pre birth assessments. The number of such cases that can be opened is limited and solicitors firms can be reluctant to take on cases for funding reasons. Ringing several to find one willing to take a short term ‘legal help’ case is a good idea. As is making clear that you have realistic expectations like asking mainly for a letter to be sent requesting urgent mental health assessment and funding of therapy.
There is more information about personality disorder and work to prevent repeat removals of children in care proceedings at Child Protection Resource. And in Family Law here about how funding works across health and social care and repeat removals.