K.S. v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant is a British national who lives in Oldham, Greater Manchester. She was represented before the court by Ms F. Swaine of Leigh, Day and Co., a firm of solicitors based in London. The respondent Government were represented by Ms J. Neenan, Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was born in 1988. Her mother had been in local authority care. As a child, the applicant suffered physical violence and emotional neglect and in 1995 both she and her older sister D were taken into care and placed, separately, in a number of different foster homes. In 2004 the applicant left foster care. She was provided with independent living accommodation by the local authority. However, she found it hard to live on her own, gave up the flat and moved between friends and relatives. She continued to be supervised through the local authority’s after-care programme. 4. In 2008, aged 19, she became pregnant following a single sexual liaison with the partner (P) of her sister (D). A first scan was completed on 16 May and showed that the applicant was 12 weeks pregnant. On 21 May 2008 she was referred by her after-care worker for a pre-birth assessment because of concerns about the applicant’s ability to live in a settled environment and provide the baby with the care he or she would need. The assessment noted that the applicant had moved into a new house and had an understanding of basic childcare. It concluded that she should continue to be monitored by an outreach worker to support her with parenting skills. The applicant asked for it to be recorded in the report that she felt her ability to be a good mother had been pre-judged because she had grown up in care. 5. The applicant’s daughter, M, was born on 14 November 2008 and discharged with the applicant to stay with the applicant’s mother. On 19 November the applicant was readmitted to hospital complaining of bleeding. Hospital staff were concerned that her mother might have given her drugs. She was discharged again on 26 November. The following day the health visitor who visited the applicant at home became concerned that the applicant was tearful and was not properly bonding with her daughter. The applicant went to stay with her aunt for a few weeks. She was diagnosed by her general practitioner as suffering from post-natal depression and was prescribed anti-depressant medication, which she continued to take until the end of March. On 15 December 2008 the applicant moved in with her sister and her partner (D and P). The arrangement broke down after a month. D reported to the local authority that she was concerned about the applicant’s poor hygiene and lack of interaction with and occasional rough handling of her daughter. The applicant denied these accusations and claimed that her sister was acting out of malice. 6. A further assessment by a local authority social worker at this stage found that the care given to M during the first three months of her life had been inconsistent and that the applicant required continuous input from family members and professionals to prompt her to meet the baby’s basic needs. On 12 February 2009 the applicant received a letter warning her that the local authority were considering bringing care proceedings. The applicant agreed to undertake a placement and assessment within a mother and baby unit. 7. On 27 February 2009 the applicant moved to the Abbeyfield Residential Family Centre for a 12 week assessment and intensive support package. The applicant had her own flat within the centre but was given intensive support and regularly monitored throughout the day and night. 8. The midway assessment noted that the applicant had to be prompted to feed M, left her waiting for food for as long as possible and had expressed concerns that M would become fat (whereas in fact M was failing to gain weight properly). It also noted that she appeared reluctant to spend time playing and interacting with M. Nonetheless, the report concluded that the applicant had demonstrated an understanding of the child’s basic care needs and a willingness to accept support and instruction from staff. On 9 March 2009 a Child Protection Case Conference was held and M was made subject to a Child Protection Plan under the category of neglect. 9. The final report from the Abbeyfield Centre found that the applicant had profoundly low self esteem as a result of her childhood experiences. She was deeply needy, found caring for the child stressful and was unable to establish secure attachments with her daughter, putting the child at risk of emotional harm. The assessment concluded that the applicant was unable to safeguard the child or provide for her welfare. Despite repeated advice, the applicant did not feed the child at regular intervals, causing her to become dehydrated and to lose weight. She was also found to be unable to recognise and respond to cues in the baby’s behaviour. Overall, the report concluded that, despite intensive input, the applicant was unable to demonstrate that she would consistently be able to meet her daughter’s needs. M would be exposed to significant harm if she were returned to the applicant’s care for a further period of assessment in the community. 10. In the light of this assessment, on 15 May 2009 the applicant was informed that the local authority intended to apply for an interim care order. The local authority intended to place M with foster carers from the Goodman Team in Manchester. The Goodman Team operated a system of concurrent planning, whereby during the assessment period of an interim care order, children were placed with foster parents who had been approved as potential adopters. The local authority considered that this would be beneficial to M, since if it proved necessary to place her for adoption she would not have to move to another family. An interim care order was granted on 27 May 2009 and on 6 June 2009, when M was seven months old, she was placed with foster carers. 11. The applicant had three three-hour contact sessions a week with her daughter, at the Goodman Contact Centre, during which her parenting skills were assessed. The applicant attended every session. In the Goodman Project’s first report, dated 25 August 2009, the applicant’s commitment to her daughter was described as impressive. She was found to have recognised the need for change and to be more accepting of help and advice from professionals. Within the confines of the contact sessions she had demonstrated that she could physically care for M and the bond between them appeared to be strengthening. It was recommended that the contact should become less supervised in order to assess whether the applicant could sustain her progress with less support. 12. During this period, various members of the applicant’s family were assessed by the Goodman Project as possible carers for M, but no-one suitable was found. 13. In subsequent contact sessions, staff remained outside the room and listened to the contact via a baby monitor. In total, the Goodman team supervised 246 hours of contact between the applicant and her daughter. The Team’s final report, dated 27 October 2009, concluded that the applicant had been unable to sustain the initial promise. She still had difficulty in recognising and responding to M’s cues for food or sleep. M appeared distressed after extended contact sessions. The applicant did not eat regularly herself and there was concern that she would not feed M appropriately. She was reluctant to recognise or address the impact of her childhood experiences on her capacity to care for M. Despite an intensive level of professional input, the applicant had been unable to demonstrate that she could consistently meet her daughter’s needs and M would be exposed to significant risk of harm if returned to her mother’s care. There being no viable placement for M within the applicant’s family, it was recommended that she be placed for adoption with her Goodman Team carers. 14. On 23 September 2009 a Guardian ad litem was appointed to represent the child and to advise on her best interests. The Guardian attended some of the applicant’s contact sessions with M, to a total of ten hours, and also visited the applicant at her home on several occasions. 15. The local authority applied for a final care order and an order placing M for adoption with her foster carers. Upon the making of these orders, the applicant’s contact with M would be reduced, with the ultimate aim of stopping direct contact and establishing indirect contact via a letterbox scheme. 16. In a report dated 18 October 2009 a forensic clinical psychologist, who was fully independent and acted on behalf of all the parties, including the applicant, found inter alia: “It is clear that [K.S.] loves [M] a great deal. In my view she has fairly profound psychological difficulties which are both subtle and central to her functioning. In my view such problems are masked by [K.S]’s obvious intelligence. That is, she appears to function at a higher level because she is bright and, in many ways, a resourceful survivor. If [K.S.] is to care for [M] on a full time basis, she will require a great deal of support, assistance and guidance. She has the intellectual capacity to make use of services and to understand what it is to be a good parent. However, [K.S.] is a very vulnerable young woman who is at risk of episodes of depression, an unstable lifestyle and possibly abusive intimate relationships. ... [If M] is returned to [K.S.]’s care, I am of the view that such an approach would have significant risks attached. [S.K.] may regress and her functioning may deteriorate as she becomes more in touch with the damage that has been caused to her.” 17. On 8 December 2009 the applicant applied for an adjournment of the care proceedings to allow for an independent social worker to be instructed. The applicant did not have legal representation at that hearing, so Allweis H.H. Judge adjourned the matter until 16 December to allow her to find a representative. At the hearing on 16 December, the applicant, who was represented by a solicitor, submitted that she recognised that she needed help and had applied for counselling. She had an extensive support network of family members, friends and professionals. All the professional assessments so far had reported that she was making progress in her ability to care for M. The applicant accepted that M could not be returned directly to her care but considered that, long-term, M would be better off with her birth mother, and that it was justifiable to allow time for an independent assessment before placing the child for adoption. The judge, however, decided that he could not rule on this application until he had heard all the evidence in the case at the full hearing, which would take place on 25 January 2010. 18. Initially, the applicant had the support of the Guardian ad litem. In an initial position statement made in January 2010 the Guardian found, inter alia, that “[K.S.] is consistently able to demonstrate that she is able to meet [M]’s emotional needs for love, comfort, acceptance, reassurance and affection”. Although she did not consider that M should immediately be returned to her mother, she considered that an independent report might be justified. 19. The final hearing took place between 25-29 January 2010. The applicant had legal aid and was represented by experienced counsel. After hearing evidence from the applicant and professionals over three days, the Guardian changed her position. She informed the court that she considered that the work that had been undertaken established that the applicant was able to offer, at best, only an inconsistent standard of care for M. She believed that it would be in M’s best interests for the court to approve the plan for adoption and she no longer thought that an adjournment for any further assessment would serve a useful purpose. 20. In his judgment, dated 3 February 2010, Judge Allweis rejected the applicant’s request for an adjournment to allow for further attachment work and assessment. He considered that it was necessary to balance the likelihood that further work or assessment would achieve “the wonderful prize of rehabilitation of mother and daughter” against the child’s need for stability and a final decision. Having heard evidence from the applicant and the various professionals involved in the case, he concluded that rehabilitation was not a viable option. For many months, professionals had worked sympathetically and intensively with the applicant to help her improve the bond with her daughter. The applicant had not been able to develop a consistent level of care and to show that she would be able to cope with the inevitable stresses and difficulties involved in raising a child. Unless the applicant’s underlying problems were properly addressed, any further attachment work would be “putting a sticking plaster on a huge wound” and would achieve nothing of real substance. The judge accepted that it was a draconian step to remove the child from her mother, who was entitled to respect for her right to family life. However, the child was also entitled to a family life in which all her needs would be met and the applicant would not be able to meet those needs within the child’s timescale. The judge therefore accepted the local authority’s analysis of the welfare checklist. The child’s interests were overwhelmingly in favour of adoption. He made a care order and dispensed with the applicant’s consent to a placement order, on the ground that the welfare of the child so required. He declined to make any order regarding post-adoption contact, because he considered that the applicant’s reaction to his judgment and ability to work with the adoptive parents and professionals would be important factors to be taken into account. 21. On 16 March 2010 the Court of Appeal dismissed the applicant’s appeal. The applicant did not apply for legal aid for the hearing and was represented by a “McKenzie friend”, who was not legally qualified. She had lodged the appeal following the refusal of Judge Allweis on 16 December 2009 to decide on her application for an adjournment. Wall LJ, in the Court of Appeal, decided instead to consider the refusal of an adjournment in judgment of Judge Allweis of 3 February 2010. He held that Judge Allweis had not made any error of law. In the light of the evidence, which he had analysed carefully in his long judgment, Judge Allweis had been entitled to make the care and placement orders. 22. A second appeal, this time formally against the 3 February 2010 judgment, was heard and dismissed without a hearing on 29 April 2010. Wilson LJ considered that the matter had already been dealt with by Wall LJ on 16 March 2010, and said “it would for practical purposes not be open to this court to reverse that decision”, but added, “for the record”, that independently of Wall LJ he had reached the same conclusion that, in accordance with the unanimous opinion of the professionals involved in the case, an order for further assessment and delay in making the final order would run counter to M’s interests. He also made an order that, since the appeal was totally without merit, it could not be renewed at an oral hearing. The refusal of the appeal was, therefore, final. 23. On 7 May 2010 Judge Allweis made an adoption order in favour of the couple who had been caring for M since June 2009. The applicant did not attend the hearing. She had been sent notice of it on 30 March 2010, and had sent a number of emails asking for it to be adjourned. The court clerks had telephoned the solicitors who had previously acted for the applicant, but had been informed that they were no longer instructed and that the applicant had issued a claim in negligence against them following the making of the placement order. The judge decided to go ahead in the applicant’s absence because she had not explained why she could not be present. Moreover, she had no valid appeals or applications outstanding in other courts and, given the recent judgments in her case, there was no possible basis for her to challenge the making of an adoption order. The evidence showed that M was thriving and happy and that it would be detrimental to her to upset the placement. The applicant’s behaviour since the making of the placement order showed that she had not accepted it and the judge therefore considered that it would be unsettling and contrary to the child’s interests to allow her direct contact. However, all the professionals in the case recommended that the applicant maintain indirect contact with her daughter, through letters which would be passed on through the local authority. 24. On 14 May 2010, the applicant’s legal aid certificate in respect of the care and placement proceedings was discharged. On 17 May 2010 the applicant appeared before Judge Allweis and unsuccessfully applied to set aside the adoption order and for Judge Allweis to recuse himself. On 21 May 2010 Judge Wilson LJ refused the applicant’s request for leave to appeal against the adoption order, as totally without merit. He held that even if the applicant had attended the hearing on 7 May, it would not have been possible to oppose or delay the adoption. On 26 August 2010 Judge Allweis refused two further applications by the applicant: for him to recuse himself and for her to have direct contact with her daughter pending the resolution of her application to this Court. 25. A summary of the relevant domestic law and practice can be found in Y.C. v. the United Kingdom, no. 4547/10, §§ 92-113, 13 March 2012 (not yet final).