Case No. BM20C00312

has some residual concerns about some elements of the assessment of these potential carers, based predominantly on the extent of T's disabilities, but it is accepted for the purposes of today that the mode of direction of travel is for these people to care for T, and the real issue for me to decide is the mode of the care, be it through endorsing a plan of adoption or under a care plan with long-term foster care.Additional Evidence Provided by the Local Authority24.The final piece of significant written evidence comes from a family team worker at the Children’s Hospice. She confirms: "As a family team worker for T and his family, I had a general overview and support to T.”25.This statement is based on recorded electronic notes made by the clinic and nursing staff on the days which the parents attended. Interestingly, the clinical staff have not been asked by the local authority to supervise contact, so it appears that the parents were able to attend, but once they were in the unit they basically looked after T in the presence but not supervision of staff members. They confirmed that contact between T and his parents has been on a Saturday once a week for two hours, with video during the week. Staff had reported contact is favourable between T, his parents and his sister V, as well as extended family, his grandmother, niece, aunt and uncle who made occasional visits to the hospice. T recognised his immediate family, mother and V showed his pleasure in recognition and smiles. Hospice staff had not reported any issues with contact between T and family members.The Children’s Guardian’s Analysis26.The Children’s Guardian completed her PLO analysis on 29 April 2022. I am indebted to her detailed description of T's health needs, which I found the most useful starting point to understand his profound disabilities. She confirmed that T has nine diagnoses, which requires twenty--four- hour care. He has the involvement of twenty-one professionals in his care and takes fifteen medications each day. 27.In her analysis, the Children’s Guardian confirmed that she could not support a return of T or V to their parents' care. At paragraph 40 of the report, she commented on V stating, "V identified her parents, T, grandparents and cousins as people who made her happy. V said she had no worries and was not sad about anything."28.She describes T as a sociable and a pleasant young boy, he is reportedly happiest when he is ‘people watching’. He enjoys interaction, he smiles when people talk to him and likes receiving hugs. It is The Guardian's view that she is able to support the local authority's view that due to the complexity and the uniqueness of V and T's individual needs, she supports separate placements. She however differs in terms of the plan for T and is clearly significantly opposed to the plan of adoption. She suggests that the allocated social worker has failed to give proper weight to the research evidence in relation to brain impaired children. She states this indicated that brain impaired children would react to sight, smell and hearing and thus, T would be able to identify his parents or V's features by their distinctive sounds and smells. 29.She refers to a piece of research by Reed and Harrison from 2002, which stated that social workers were at risk of erroneously assuming that contact with family is less significant in the context of disabled children. She said studies confirmed that the need for family contact for this group was at least as great as for non-disabled children.30.She set out the arguments in favour of adoption, and she accepts that there are arguments in favour, which I will not set out now because they are rehearsed elsewhere. Conversely, she outlined twenty-five arguments against adoption. She was particularly concerned about the life-limiting condition. She states at paragraph 88 of her report, "Every moment with his parents and sister is crucial for T due to his health needs and his presentation over recent months." She continues at paragraph 89, "It is for these reasons that it is my view that a plan of adoption in T's care would be disruptive for him". At paragraph 93 she states, "it is for this reason I strongly oppose the local authority's care plan of adoption." Oral Evidence31.I heard oral evidence from the allocated social worker and the Children’s Guardian. They were both subject to detailed and forensic cross-examination. I have read the bundle which exceeds 2,500 pages and I have considered submissions from all parties. The fact I do not refer to a document or a piece of evidence does not mean I have not considered it.The allocated social worker32.The allocated social worker was put in the position of being the flag bearer for what was a corporate decision. This, at times, put her in a very difficult position, particularly as she had moved on from that particular role. It was clear that she had grown to know the family well, and she spoke warmly of T and V. It was clear that the local authority had formed a corporate view that there was a risk that T was being disadvantaged as a result of his disabilities. The allocated social worker and the local authority legal team were very keen to avoid discrimination on that basis. As such, the corporate view was T should not be denied the chance of permanency via adoption purely as a result of his disabilities. 33.The allocated social worker had accepted throughout the duration of the case that finding a permanent placement would be difficult, but she steadfastly refused to rule it out. It is hugely to her and the team’s credit that they appear to have identified a family which is initially prepared to foster T and is actively considering adoption. This placement may well be the best option for T. 34.It is my conclusion that the desire to secure this placement and the perhaps unique opportunities it offers has led to the local authority focusing on achieving that end and, to some extent has led them to ignore other options. The most glaring example of this is in the last social work evidence template of the allocated social worker; in her matrix of realistic options she considers the options of adoption versus returning home but does not even add long-term foster care to the matrix. This omission put the allocated social worker in an impossible position; clearly long-term foster care was a realistic option for any child approaching four with an older sibling remaining in the family group. The failure to acknowledge this and thus the failure to attempt the side-by-side holistic analysis the court requires left the allocated social worker advancing one option without any proper consideration of the other realistic option.35.During cross-examination, a number of evidential points arose. The allocated social worker was reflective on T's ability to differentiate between carers and family. She was unable to say that she accepted the quality of recognition was different in relation to family members, as opposed to frequent carers. The general thrust of her evidence on this point was that she felt it was familiarity rather than family bond which created the recognition and pleasure which she accepted T felt on seeing family. This is a nuanced point and, perhaps, could only definitively be decided by expert evidence. But it did appear at odds from the report of long-term carers, as set out in the letter from the Hospice.36.She conceded there was a bond, particularly between Mother and T, stating "he has a very good bond with his mother. I think they have a very secure bond." She accepted that T would need support throughout his life but differentiated between support from a disability assistance social worker who would look at the practicalities of T's care, and a social worker in the position of parental responsibility, making decisions about care.37.I detected a nervousness in jeopardising this particular placement. Firstly, there was real energy to her evidence when she described the placement. It was clear that she regarded this as an almost unique opportunity for T to have a life which was not institutionalised. Secondly, when asked why these carers preferred adoption over fostering, she indicated that in the past they had experienced difficulties managing contact with birth parents, and so preferred adopting. This was a telling piece of evidence. She accepted that T's health needs would increase over time, making any placement more rather than less demanding.38.She was clear the placement breakdown was more likely in a foster placement rather than in an adoptive placement. Statistically she is correct, however, this argument has less force in this scenario when the foster placement is the potential adoptive placement. It is the same carers performing the same role, but under a different legal framework. It is entirely possible that the placement would be more stable with the assistance of a care plan and appropriate funding. If it were possible to remove the parental contact from the equation, I can see the argument she is making, because we would have a life without state and birth parental intrusion. However, no party in this case suggests it is appropriate in this case to prohibit parental contact, the only difference is frequency of contact, as the plan is for twelve contacts per year under long-term foster care and six under an open adoption. I thus struggle with the enhanced chance of breakdown under adoption.39.I found her to be entirely motivated and centred on T's welfare. She indicated that, "I sing to him, talk about birds, these are the things he likes." This is indicative of a committed social worker, who had taken the time to know T in a very real and personal way. She was determined to see the end of institutionalisation of T and her view that T would be better off in a family scenario was sound and not challenged. 40. A huge issue arose in relation to end of life care. The evidence available stated T had a 60% chance of reaching twenty. The question was what role his birth parents would have in any decision-making under an adoptive placement. The clear legal answer is none. With the parents’ and local authority's parental responsibility ended any input would be entirely at the discretion of the adoptive parents. 41.The allocated social worker’s view was that the adoptive parents would consider the birth parents' view. She would not concede that this lack of legal status would not be in T's interest.42.Miss Brown highlighted that if there were to be a decision as to the ending of lifesaving care the adoptive parents were free to make that decision and could do so alone in what would clearly be the most stressful of situations. She contrasted the position to under a care order, where the local authority could not agree to such withdrawal and thus an application would have to be made to the High Court where T would be represented, and the full welfare issues canvassed. This example very starkly illustrates the different positions and the potential exclusion of the birth parents from decision-making and, indeed, even attendance at death in this scenario. 43.The allocated social worker maintained the local authority's plan was to have a time-limited placement order and conceded that a situation could arise where these prospective carers were prepared to care under a foster placement but would not proceed to adoption. In those circumstances, the local authority wanted the flexibility to seek alternative adopters and, indeed, would start that search as soon as a placement order was made to run parallel with the placement with this family. It was suggested that there had been real difficulties in finding a foster placement during the currency of this case. It was suggested this rendered this course of action unrealistic and she did not accept this. This appeared to be against the weight of evidence which clearly demonstrated finding any sort of carers was difficult and identifying prospective adopters willing to take on a child with these needs, and the requirement of an open adoption seemed almost impossible. The best argument for this is that it has not been possible to place T with any carers of any form for eighteen months.44.The allocated social worker accepted that T would always need a detailed and involved care package but believed that there were adoptive parents with the skills to coordinate a package. It was suggested it would be better for T to have the local authority involved with the statutory duty to consider needs and coordinate and, on occasions, fund services. She did not accept that position. 45.She confirmed the prospective carers had been fostering for seventeen years and had adopted ten children with varying degrees of disability, some of these remain in their home in adulthood. She accepted that the plan for adoption would halve familial contact from twelve times a year to six. She viewed six times a year as "suitable for permanency". It was put to her that as T could not possibly understand the nature of the placement, all he would experience is a halving in contact with those with whom he had a bond. The allocated social worker did not accept the usual arguments of too much contact undermining placement stability did not apply in a case where T would simply accept the care given to him. The allocated social worker's view was, "We should not ignore the intrusion." Clearly, any intrusion would be into the lives of the carers and not T. 46.It was put to her that T's level of stability and security was not going to be affected by the label put on his care. It was suggested to her that there was some distinctive advantage to foster care, such as a right to respite from care. Her view was that as a child receiving palliative care T would still have a right to respite at Hospice. This is simply wrong. The Hospice is a charity and in reality was likely to supply respite, but it is not a right the adopted parents had to insist on in the way that foster carers would have the right to such care. 47.This case revealed some large and difficult issues. How do we ensure disabled children are not discriminated against in the care system? How does a child’s reduced life expectancy and possible need for end-of-life care during his childhood impact on the welfare of that child under different legal frameworks? Does the accepted position the parents are unable to care due to inadequacy of parenting rather than personal fault impact on their future involvement in the child's life in this scenario? How does a profoundly disabled child experience relationships and are those relationship with family of a different quality to those with other carers?48.Unfortunately, the starkness of the local authority position led to an attempt to portray it as absurd and to completely undermine the validity of the social work undertaken. I did not find this helpful. 49.I found the allocated social worker to be a committed social worker who focussed on T's needs. However, the failure to recognise long-term foster care as a realistic option left her appearing closed to options. She adopted unreasonable positions in relation to the prospects of breakdown between different modes of care and chances of finding alternative adoptive carers, and this undermined her evidence to some extent. However, she did provide a clear narrative that institutionalisation was not in T's best interests and whilst it was difficult to find a family setting, it was not impossible, and she was clearly very determined to give T the best chance at permanency. In doing so, I consider she placed too much weight on protecting the wishes of these particular carers, in effect, seeking an option which provided these carers with the most freedom of decision-making and did not fully acknowledge that this significantly reduced the role of the birth family.The Children’s Guardian50.The Children’s Guardian had real doubts about the placement. She felt the information was incomplete. She agreed the carers deserved credit for coming forward but was concerned as to how they cared for so many disabled children, including those with cerebral palsy. Her view was there was insufficient information to determine if they had their requisite skills to care for T. Her view was T required care, which was ‘experienced, responsive and attuned’. She was significantly concerned that once placement occurred, contact may well cease, even with a post-adoption contact order. She indicated in her experience the observation of contact orders can cease very quickly after adoption. 51.A major concern of hers was decision-making with regard to health issues. She felt that, once a carer was caring under an adoptive placement, there was a real risk they would make their own decisions. She stated, "they are bearing the burden of care. I do not think they will comply with anything other than what their hearts or guts is telling them". This appears to me to be a far too wide assumption, but it does contain a central truth that it will be their decision to make, and those decisions will be made once they have devoted time and energy to T. There is a real risk that they may be less open to other's views and input at that stage.52.She was concerned that professionals were, in her view, making assumptions that a child with disabilities could not form bonds or attachments. She was also worried about V's contact with T under an adoptive relationship. The grandparents, as she suggested, would need to fund the travel, and that would be an additional burden. Her view, bluntly, was that adoption was not a realistic option. 53.Her evidence allowed me an opportunity to better understand T's actual healthcare needs. It was accepted that he needed to be moved every three to four hours throughout the night and needed to be monitored. The agreed position was that this was not waking monitoring, but rather having a person nearby who could respond to an alarm sounding triggered by the various monitors he has. I was not informed as to how often the person monitoring was woken in the night, how long the turning over would take and how frequently sleep would be disrupted significantly for health reasons such as suction of mucus. I am surprised that the local authority did not have a very clear picture of this. 54.I also did not have a picture as to how those interventions would change over time. For example, would two people be required to carry out some of these tasks as T grows and becomes heavier? Miss Cross, on my request, provided an analysis of the evidence of care presently provided overnight, and excerpts from this include the following from the lead Nurse at the Hospice:"T requires all his personal care needs to be met throughout a twenty-four-hour period. This involves him being washed, dressed, nappy change and ensuring he does not develop any pressure ulcers.T has slept well overnight, repositioned regularly, checked every ten to fifteen minutes. Pad changed, passed urine only.Repositioned every few hours, pad changed, passed urine, bowl smear only. Has been unsettled overnight, shouting out. Now sleeping and settled, checked every ten to fifteen minutes.He has been very unsettled overnight, periodically screaming, aching, grinding teeth, retching and gagging and generally difficult to console. Apyrexial through regular paracetamol has been administered, he has been awake most of the night and was reportedly unsettled yesterday.T has been struggling with bradycardia overnight, during which his heart rate drops to under forty. This has been raised with the consultant and is being monitored. T is able to be stimulated and woken during these episodes, and needs to be taken to A&E if needed."55.The Children’s Guardian's view was that this was properly described as ‘twenty-four-hour care’ and would have a physical and emotional drain on any carer's resources. As T suffers from epilepsy, there was always a possibility of fatal seizures, which meant the need for monitoring was significant. 56.On the issue of T having a different reaction with family to carers, the Children’s Guardian stated, "I specifically asked contact workers and they've all agreed there is a difference in his response to family as opposed to professionals. The professionals say there is a difference, he smiles and thrashes his legs."57.In a similar way to the allocated social worker, the Children’s Guardian was subject to detailed forensic cross-examination, aimed at undermining her credibility. She accepted that whilst she had experience with disabled children both as a frontline social worker and a Children’s Guardian, the numbers were relatively small, with three cases as a social worker where children had complex needs, and two cases as a Children’s Guardian. It was successfully established by Ms Davies that this was a level of experience which would be less than those social workers exclusively working with disabled children as a speciality. 58.It came as a surprise to me that the Children’s Guardian had never actually met T face-to-face. She had met him twice via video call, though I struggle how this would give a full impression of him to her. She had made attempts to speak to carers recently but it appeared that whilst messages had been left, they had not been responded to. The suggestion was that this lack of physically meeting T left her in a weak position to comment on bonds. There is some merit to this argument. I do think a face-to-face meeting was required, and it weakened her evidence as opposed to the allocated social worker, who had clearly met T many times and had formed a bond. However, the Children’s Guardian was clear as to her methodology. She had spoken to numerous professionals and carers, and they all commented on the different quality of their relationship between T and his family and T and others.59.She accepted that generally, disabled children should be given the same opportunities as non-disabled children, but said that these opportunities cannot, necessarily, be delivered in the same way. She was clear that T could not go through life without a social worker due to his medical needs and as such, the usual stated advantage of lack of social work scrutiny did apply. She went further than this stating, “There is no advantage to there not being social workers, his needs demand a social worker. He would require LA input to manage his care. There is no benefit to him not having a social worker.” 60.Her view was that in most local authorities, the social worker supervising the care planning would be the same social worker as that managing the health-based care and as such there would be no higher level of intrusion. She conceded that she should have made her own investigations in relation to the prospective carers, and that would have allowed her to understand them better. She was very clear that she did not regard open adoption as something that should be considered. I was not helped by this response. In reality, the realistic options in providing safe long-term care were always likely to be long-term foster care or an open adoption. In the same way that the allocated social worker did not properly consider long-term foster care, the Children’s Guardian did not consider fully open adoption.61.The Children’s Guardian explained her unwillingness to consider adoption of any form was due to the severance of family ties; she was very clear that the existence of a contact order of itself does not stop that severance. She is, of course, correct here, the adopted child is no longer the birth parents' child and the fact they can see the child is very far from remaining linked to that child legally and in terms of parental responsibility. She was clear that T's relationship with his sister were key and reiterated her concern that even with the benefit of the contact order, contact may not continue.62.She was totally opposed to any reduction in contact below twelve times a year proposed and suggested there was a danger we were looking at the needs of the carers and not the needs of the children to have regular contact. She accepted that adoption did have the benefit of permanency but did not accept that this placement was more stable than an adoptive placement and indicated she had not been able to find any research on children with complex needs and placement breakdown, despite searching for that. She accepted there were disadvantages in long-term foster care and considered breakdown would be disadvantageous. However, it was her view that there was no guarantee that these carers would be able to care for T in any event once he is in their care.63.She conceded that adopted relationships can be continued but was robust in saying that T has a family, his birth family, and they were not going to go away at eighteen. She was clear she could not see circumstances where alternative carers could come forward to be assessed and care for T within the six-month period suggested and she felt that was entirely unrealistic.64.As indicated above, I do not regard this case as straightforward as the two professional witnesses seem to. The Children’s Guardian explained her concerns in relation to adoption but did not wrestle with the ways open adoption might be made to work. She was not helped by her lack of visiting T and speaking to the respective carers. On the other hand, her understanding and explanation of T's medical position was first rate and there was some merit in her canvassing opinion from those intrinsically involved in T's care, rather than relying on what would have been, at best, a couple of observations. Her analysis was exhaustive as to the pros and cons of adoption and long-term foster care and was more persuasive than perhaps her oral evidence.