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England and Wales Family Court Decisions (other Judges)


You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Birmingham City Council v EH & Anor [2025] EWFC 92 (B) (27 January 2025)
URL: https://www.bailii.org/ew/cases/EWFC/OJ/2025/92.html
Cite as: [2025] EWFC 92 (B)

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IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

 

Neutral citation: [2025] EWFC 92 (B)

Case No: BM24C50255

IN THE FAMILY COURT AT BIRMINGHAM

Priory Courts, 33 Bull Street,

Birmingham

B4 6DS

Date: 27 January 2025

Before:

 

DISTRICT JUDGE PARKER

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Between:

 

 

BIRMINGHAM CITY COUNCIL

Applicant

 

- and -

 

(1) EH

(2) THE CHILD

(Through his Children's Guardian)

Respondents

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Digital Transcription by Marten Walsh Cherer Ltd.,

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MS HANNAH RAINSFORD (instructed by Birmingham Children's Trust) for the Applicant

MS HAYLEY CHEW (of Carvers Law) for the First Respondent

MR CYRUS RASHVAND (of Cartwright King Solicitors) for the Children's Guardian

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JUDGMENT


DISTRICT JUDGE PARKER :

  1. I am concerned with DRH, who was born on 28 July 2024.  She is approaching 6 months old.  This is the local authority's application for final care orders and placement orders sought on the occasion of the hearing today being an issues resolution hearing and early final hearing.  Mother has not effectively engaged in the court process and responded to the evidence and threshold, and therefore I will need to determine that the threshold is crossed on the basis of the documents placed before me. 
  2. The threshold refers to mum's longstanding history of substance misuse involving heroin and cocaine, a longstanding history in relation to social services' involvement through her chaotic lifestyle, domestic abuse and mental health problems. 
  3. I note that mother's elder children were also removed from her care and that sadly, there has been no sustained change since the last set of proceedings which concluded on 11 September 2020.  There were also proceedings before then which concluded on 18 October 2018.
  4. The Mother did not engage with antenatal services and the child was discharged into foster care on 12 August 2024 pursuant to section 20 accommodation being provided on 10 August 2024 by the mother.  The Mother did not engage in family time and only visited the hospital on one occasion for between three to five minutes.
  5. I note that when the child was born, she suffered low level withdrawal symptoms.  Matters were preceded by a child protection plan on the basis of neglect which took place on 13 May 2024.  I note that a toxicology report shows that the mother tested positive for cocaine, methadone and morphine.
  6. The pre-birth assessment of the mother was not completed due to her lack of engagement and, sadly, there are no alternative carers put forward.  The local authority in their initial statement indicated that they did not intend to undertake any further assessment, but matters would be looked at through the scope of their final evidence depending on mother's subsequent engagement. 
  7. It appears from an early stage that the mother accepted that she was unable to care for her baby at the current time. 
  8. The guardian's initial analysis also points to the mother's entrenched substance misuse and her inability to meaningfully engage.
  9. The matter first came before me on 9 October 2024.  The local authority, at that time, was seeking a foster to adopt placement, the child initially being placed in short term foster care.  Directions were made in relation to the proposed putative father in relation to DNA testing, but the results confirmed that he was not, in fact, the father and the mother has not provided any further information as to who that might be.  She indicated that it may well be her ex-partner but he and his family were abusive towards her and the mother therefore did not wish to provide the details.  I am satisfied that the local authority have done all within their power to identify any connected persons so as to provide an alternative family placement for the child.
  10. Throughout these proceedings, the mother has not engaged.  An application has been made for a placement order, the plan being endorsed by the independent reviewing officer and the agency decision-maker.  I gave placement directions on 6 January 2025 which I am informed have been complied with. 
  11. As part of the evidence in these proceedings, I have read a statement from the midwife who confirms that the mother is unable to safely care for the baby or prioritise the baby's needs above her own.  Her engagement has been minimal and she has continued to use illicit substances which would clearly place a young baby at risk of significant harm.
  12. I have read the local authority's final evidence in support of their application for care and placement orders.  They have confirmed that the father's details remain unknown, there are no family members available to care for the child and placement for adoption has been approved.  It reiterates mother's lack of engagement, including not attending family time, the history of substance misuse which is still prevalent and entrenched.  To her credit, they report that the mother accepts that she is currently unable to care for her child. 
  13. The children's guardian's report also reiterates that the mother accepts that she recognises that she has not made sufficient changes to her lifestyle to allow her to safely parent her child.  The guardian supports the local authority's applications.
  14. I note that the previous foster carers undertook work in relation to a memory book and, indeed, a 'memory bauble' for the child's first Christmas.  I would complement them on that.  A 'memory bauble' of the child's first Christmas is an excellent idea.  I understand that a foster to adopt placement has now been found and DRH has now moved to that placement.  The guardian has provided a holistic analysis which I will not repeat but is contained within paragraphs 21 to 29 of her final analysis and recommendations and I adopt that. 
  15. The mother has also filed her final evidence in which she again reiterates that she is unable to care for her baby at present.  She accepts her ongoing substance misuse difficulties and consents to the orders sought.  Quite naturally she has found this an extremely difficult decision and has found it too traumatic to attend court today. I fully empathise with her reasons for that.  This is probably the most difficult decision that any parent could face. 
  16. I understand that although she consents, the local authority would wish me to make an order dispensing with her consent purely because she has found giving consent so difficult and so as to avoid any difficulties later should she feel that she was placed under duress, albeit there is no suggestion of this. 
  17. Accordingly, the local authority seeks for me to determine that the threshold criteria is met today for final care order and to make a placement order. 
  18. Case law has emphasised time and time again the importance, wherever possible, of a child being brought up by their birth family and the importance of not elevating perceptions of parenting to that of a gold standard.  To that end there is, on the local authority, a duty wherever possible, to promote the upbringing of children within the birth family and to take reasonable steps in order to achieve that.
  19. Where that is not possible, there is an evidential burden that must be met prior to removal of a child from a parent's care and in making final care orders, being the statutory gateway set out in section 31(2) of the Children Act. 
  20. The section itself consists of two limbs, one looks back, the other looks forward.  The first is that the subject child is suffering significant harm.  The second is that they are likely to suffer significant harm.  Of course, the prediction that a particular child is likely to suffer significant harm in the future has to be based on the establishment of actual past facts of abuse which have been proved to the requisite standard of proof, namely the balance of probabilities.
  21. Accordingly, the court at the first stage has to identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer.  The court has to identify why, and in what respects, the harm is significant and should identify, in what respect, parental care is failing or likely to fail short of that it would be reasonable to expect. 
  22. Where harm has yet to be suffered, the court has to consider the degree of likelihood that it will be suffered in the future and therefore the court has to be satisfied on the evidence, that the harm is likely rather than merely there being a risk of such harm.
  23. In this particular case, I am satisfied that the threshold is crossed.  The mother accepts that she has a longstanding history of substance misuse.  She has not been able to engage meaningfully with the local authority and professionals, and she has not been able to attend family time.  I am satisfied that the difficulties that she faced in relation to the removal of her previous children sadly subsist and, therefore, I am satisfied that if the child were to be returned to the mother's care, she would be at significant risk of harm.  Sadly, the mother is not in a position of being able to offer DRH the appropriate level of parenting which a very young baby requires, being solely reliant upon their adult carers to meet all their care needs.
  24. In making care orders I have to consider section 1 of the Children Act to determine what order is necessary to safeguard the welfare of the child, having regard to the child and parent's Article 6 and Article 8 rights, and to determine whether continued removal of the child from their parent is proportionate to the risk of harm that they would be exposed to if they were allowed to be returned to their parent's care and in cases of permanent separation, where placement orders are concerned, I have to be satisfied that it is necessary to do so and that nothing else will do.  To that extent I have to undertake a global holistic evaluation of the realistic options available for the child's future upbringing.  In this particular case there are no other viable realistic options before the court.
  25. I am satisfied that a care order is a serious order that can only be made where the facts justify it, where it is in the child's interest and where it is necessary and proportionate.  The aphorism "nothing else will do" applies in particular reference to cases involving a plan of adoption, where the court is considering the most serious of all orders and one which will permanently sever the parental relationship.  As noted in the case Re BS (Adoption: Application of section 47(5) [2013] EWCA 1146, such orders are a very extreme thing, the last resort, and should only be made where nothing else will do.
  26. The presence of a placement application for adoption also dictates that I must have regard to section 1 of the Adoption and Children Act 2002 as opposed to section 1 of the Children Act.  I remind myself also of Re F (A Child) (Placement Order: Proportionality) [2018] EWCA 2761 and Re K (Children) (Placement Orders) [2020] EWCA 1503 and the useful route map that those cases provide; in other words: what is the type of harm that might arise and what is the likelihood of it arising; the consequences, in other words, what will be the likely severity of the harm if it did come to pass and the consequences for the child if it arose; risk reduction/mitigation, what steps can be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did and would the chances of harm happening be reduced or mitigated by the support services available, and a comparative evaluation; namely, how does the overall welfare advantages and disadvantages of the realistic options compare with each other, and finally, proportionality; ultimately, is adoption necessary and proportionate in this case?
  27. I have already satisfied myself that the threshold conditions are satisfied for me to make final orders.  In relation to realistic options for the child's future, it is my view that the only realistic option available in this case is placement for adoption.  The mother accepts that, and she does so to her credit.
  28. Accordingly, I am driven to the conclusion that a placement order is the only order that can meet the child's immediate and lifelong welfare needs.  In relation to that, I also reiterate the case law set out in Re D (A Child) (Placement Order) [2022] EWCA 896 and by way of a final summary quote Re C (Children) (Revocation of Placement Orders) [2020] EWCA 1598 as follows:
  29. "The paramount consideration for a court when considering an outcome for a child is that child's welfare.

    It is a principle of the law that the welfare of a child is best met by maintaining the connection with birth parents to as full an extent as possible.

    That principle is underpinned by application of the least interventionist principle enshrined in section 1(6).

    Adherence to those principles reflects and respects both the importance of the right to family life set out in Article 8(1) of ECHR and the limited scope for interference with that right as set out in the exceptions in Article 8(2).

    Interference in the right to family life, which is the right both of the parent and of the child, is parametered by necessity, proportionality and legality.

    As a consequence, the permanent severing of ties between a child and her birth parents is an outcome only to be ordered in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare.

    To arrive at that conclusion the possibility of parental care or, in the alternative, care by members of the wider birth family must be shown to be options which are not realistic either by reason of unavailability [for example, as in this case] (ie they do not exist) or because such care cannot meet the welfare needs of the child.

    That option of parental or family care should not be rejected if identified deficits could be remedied through appropriate and proportionate support provided by the local authority, even if such support would be necessary for an extended period of time.

    In order to arrive at a valid conclusion that a child's welfare requires their permanent removal from parental/family care it is necessary to consider individually all of the competing options for care, to assess their respective strengths and weaknesses and then to look at those options against each other to ensure that every option is fully considered against every other option.

    Having done so and identified the outcome most able to meet the welfare needs of the child, it is necessary to consider whether that outcome is itself a proportionate interference in the rights of the child."

  30. Accordingly, by reference to whole of the evidence, sections 1(1), (2)(a), 1(3) and 1(5) of the Children Act 1989 and, where relevant, sections 1(2), subsection (4) and subsection (6) of the Adoption and Children Act 2002, I am satisfied that having regard to the facts in this case and treating the child's welfare as paramount, that I am driven to the conclusion that a placement order is the only order that can meet the child's immediate and lifelong welfare needs and that such order is necessary and proportionate having regard to the Article 8 rights of the mother and the child.
  31. This is my decision and the reason for it.
  32. I understand that you have made provision in the draft order for a transcript of my judgment.  I intend to publish it in anonymised format in view of the transparency scheme pilot which is now in place.  However, if any party, particularly the mother, objects to that, my rule of thumb is I will not do it.  So I will make provision that if the mother chooses to oppose publication, then she should be given, say, 21 days to do so, otherwise it will be published anonymised unless anybody else has any views with regard to that.
  33. MR RASHVAND:  I will just quickly take instructions on that point but the dispensing with mother's consent?

    JUDGE PARKER:  I believe that I have already provided for it in the draft order.

  34. For the sale of fullness I make a final care order, I make a final placement order and, as appropriate and as invited to do so by the local authority, I dispense with mother's consent.


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