Smokey and the Bandit – “boy adopted due to smoky house”

This story appeared in the Guardian yesterday.  Two year old boy from smoky house to be placed for adoption.

http://www.theguardian.com/uk-news/2015/jun/01/two-year-old-boy-adoption-cigarette-smoke

It relates to a case decided by a Circuit Judge (in Hull)- so the case is not binding authority for later cases*, but it is still of public interest.  (* the reason it is not binding is because it was decided by a Circuit Judge, not because it was decided in Hull)

Re AB 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B58.html

The author of the Guardian story had clearly read the judgment, and read it carefully, because it draws out all of the many, many references to the smoky atmostphere in the house being a concern. This is a continuing theme throughout the judgment.

  the most graphic testimony came from health visitor Julie Allen, who told the judge that the family’s living room was “so smoke entrenched that I had difficulty breathing”.

“On entering the living room Allen described being able to see a visible cloud of smoke surrounding the father and [the boy],” said the judge. “[The boy] was asleep on the sofa and had been unwell for some time by this point.

“Ms Allen described the room as ‘so smoke-entrenched that I had difficulty breathing’. She immediately expressed concern to the parents as to the impact of such smoke on [the boy], who had already been prescribed an inhaler within the previous month to help his breathing.

That’s obviously the public interest debate, because it raises a spectre that a parent doing something lawful (smoking) can find themselves in care proceedings, and could ultimately find the child being adopted. If that was right, it would obviously worry people, and be thin end of the wedge material.

Remember that in establishing threshold, one has to not only show that X event happened and that the child suffered significant harm as a result (or is likely to) but that X is a type of behaviour that one wouldn’t expect from a reasonable parent or care that it would not be reasonable to expect a parent to provide for him.

Of course, reasonable is always a difficult concept. It ties into the Illusory Superiority concept – just as everyone considers that they are above average (in terms of intelligence, sense of humour, looks, driving ability), everyone considers that THEY are reasonable, and they assess other people’s behaviour as reasonable or unreasonable based on their own standards.

A non-smoker, or anti-smoker might hold that no reasonable parent would smoke within the same building as their child. Someone who smokes twenty a day might hold that a reasonable parent would smoke, but try not to blow smoke into the child’s face.  Someone else might think that a reasonable parent would try to smoke in a different room to the child, and so on.  What consitutes reasonable parenting is a really subjective issue.  (And it may well be part of the problem of care proceedings, since a social worker assessing reasonable parenting does so from the mindset of  (a) someone who was concerned enough about children to go into a profession aimed at safeguarding their welfare (b) has a degree and (c) is working in a culture where protection of children is the paramount concern)

I personally would prefer that a parent smoked outside, but I wouldn’t consider it unreasonable if they decided to smoke in their own home, or to give up entirely and insist that no visitors to their home smoked whilst there. I have a pretty broad spectrum of what is reasonable in terms of smoking near children. I know others who would have a much narrower band of what’s okay and what is unreasonable.

{My experience may be coloured by the fact that (a) I was able as a child to go to my ice cream van and buy cigarettes for my grandmother, something you can’t imagine today and that (b) when I was about twelve, our sweet shop sold a product called Skoal Bandits – sachets of tobacco that you would put in your mouth and suck, till they were banned  – I see that you can still buy them in America and other places and I suppose (c) that I began my childhood smoking on cigars, so I never ended up becoming a regular smoker}

“Smokey and the Bandit Two – Smokey IS the Bandit!”

When looking at smoking, and a smoky atmosphere, I would argue that it would need to be a very very high level of smoking to amount to threshold – since smoking, even heavy smoking in your own home is a type of behaviour that some parents would think was abhorrent and some would think was normal. It would be hard, I think,  to categorise even a sixty-a-day habit as behaviour that would amount to threshold.   (There might be exceptions – for example, if your child has a lung disease and has to breathe with the assistance of an oxygen tank, or suffers with life-threatening asthma attacks then a reasonable parent would take steps to prevent him being exposed to smoke)

So if the smoky house was the sole, or main reason for the decision, the decision would be very questionable and probably wrong.  We need to see if that WAS the sole, or main reason.

The Guardian piece does say several times that smoking was one of a number of concerns, and touches on some of the others during the article.

To provide some of that context, the Judge sets them all out as bullet points

• potential drug paraphernalia observed at the parents property on 2 occasions

• Mother failing to engage with DVAP and the freedom programme

• the lack of involvement of the father in AB’s care

• outstanding therapy for the father

• concerns re the father’s mental health

• parents responding aggressively/defensively to challenge

• a decline in the parents engagement with agencies whose role was to support them in their care of AB

• the amount of smoke in the home of the parents and AB

• risks within the household including objects left in AB’s reach and electric wires being within his reach

• dirty, smelly and unhygienic home conditions

• the parents and AB presenting as dirty and with an unpleasant odour

• father testing positive for cocaine in October 2014 and subsequently failing to fully engage with hair strand testing

So it is certainly true that the smoky atmosphere was part of the Local Authority case, but there were other matters – probably the most serious one being the use of drugs.

The Guardian piece doesn’t cover this much, but actually the electrical wires were put as a high concern by the Health Visitor

A further risk that Ms Allen documents is the issue of trailing wires which she described as being a strangulations risk, running across the room directly over AB’s toybox. It was put to her in cross-examination that she was perhaps exaggerating in describing this as a strangulation risk but she was very clear on this point. She showed clear frustration and exasperation as to why the parents did not address and rectify this issue, describing that it took them some 8 weeks to remove this risk. She described how they were clearly capable of addressing risks when they were identified as they had dealt with a similar concern in their previous home. She described that all it would have taken to make the wires safe was to buy some inexpensive tacks to secure the wires to the wall.

That’s one of those common bugbears. Yes, wires running over  over a child’s toybox have a strangulation risk, but what effort is made to quantify that risk?  Risk isn’t binary – something is either completely safe, or there’s a risk that X could happen which is not worth taking.  Human beings take risks every day. Every time they cross a road, or put food in their mouths, there’s a risk that this activity could lead to serious injury or death. But we weigh up that the risks are very very small, and the consequences of trying to lead a risk free life (by avoiding say, the risk of choking on some food, by not eating, or liquidising all your meals in a blender) are more problematic than taking a slight risk.

I’ve no doubt that seeing electrical wires dangling over a toybox doesn’t feel nice, that you’d feel much more comfortable if it was fixed and it seems a small thing to ask, but when you describe it as a strangulation risk without quantifying that the risk there is very very small, for me, it is over-stated.  For example, if I let a pet python sleep in a baby’s cot, that is a strangulation risk, and one that most people would think was more risky than overhead wires.  You lose sense of risk and risk management if you describe both the wires and the python scenarios as ‘risk of strangulation’

[It is a not unreasonable point to respond by saying ‘it would be very easy and relatively painless to remove that small risk entirely, so why not do it in this case?’ ]

A lot of the evidence about home conditions was contested and challenged, so the Judge had to reach conclusions.

82. I find that I prefer the evidence of the health visitor, Julie Allen and the support workers, Emma green and Janine Potts in terms of their observations of the home conditions and I find that the recordings of Laura Gill provide further corroboration of these matters. I find that the home conditions were sometimes extremely dirty, unhygienic, and placed AB at risk of exposure to germs and contracting illness. I further find that he was at risk of sustaining serious injury or possible strangulation through clutter in the home and the failure to deal with unsecured wires. AB himself was exposed to these conditions and his personal care was sometimes inadequate with him being dirty and on occasions smelling of smoke. I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.
83. I find that his weight plateaued when he returned to the care of his parents and that he dropped by one centile on the growth charts. I find that his diarrhoea and general unwellness is likely to have been impacted on by the lack of cleanliness and unhygienic home conditions. When a child is suffering as AB was and there are simultaneous concerns about his lack of weight gain, the advice of the health visitor to maintain hygienic and clean home conditions should have been prioritised.
84. As a general observation, I find that the parents do not accept or follow advice if they do not agree with the advice (both parents disputing the strangulation risk identified by Julie Allen and the risk from cigarette smoke identified by several professionals).
85. I also find that the parents failed to engage fully with the support services that were available and provided for them, in particular the family links programme, the safety workshops, the children’s play sessions and freedom programme for the mother. I am afraid that whilst I accept that these parents had a lot going on, these courses and programmes were important and needed to be prioritised, if the mother was to attend, the father had a responsibility to ensure that she was supported and encouraged by him in attending. Even if he was working long hours, he needed to be staying on top of the housework when he returned if the mother had been unable to attend to it during the day. This plan for AB to be cared for by his parents needed these parents to work together and support each other to ensure that AB’s needs were fully met.
86. I find that the father struggles in managing his levels of anxiety and that sometimes this can manifest itself in him presenting as aggressive or confrontational, as recorded by the health visitor and the social worker. Whilst I am pleased that the father is now receiving some appropriative assistance with this, it is clear that this is at an early stage of what will be a long therapeutic process. I also find that as a way of managing stress the father has reverted to illicit drug use on at least one occasion and I find that this is an ongoing risk for the future. I find that the communication between the parents was extremely poor with the mother not knowing about the father’s heightened stress levels and the fact that he reports he was reducing his anti anxiety medication (I cannot understand why he would be doing that just after AB had been removed from his care) and the father not knowing that the mother was failing to attend the courses and groups that were expected of her.
87. When considering the evidence in relation to the care that AB has received and is likely to receive, I have found it helpful to consider in some detail the documents from the care proceedings and in particular the assessments. I also find that is of real significance that the parents, having achieved their aim of a plan for AB to be placed in their care, were then unable to motivate themselves sufficiently to ensure that the home conditions were suitable for him to be placed. The standard that was needed was simply good enough, I would have thought it would not have been too much of a sacrifice for the parents to stop smoking (or at least to stop smoking in the home) and to ensure that the home was clean and tidy. In addition, I accept that the parents delay in seeking the courses that had been recommended and were to some extent part of the plan for AB to be placed in their care, demonstrates a lack of organisational skills and lack of commitment. Following the court approving a plan for AB to be cared for by his parents, I would have expected the parents’ commitment and motivation to be at its very highest.

The Judge had to analyse both harm, and whether the parents were able to meet the child’s needs to a ‘good enough’ standard, and if not whether they could be supported to do so.

102. Has he suffered harm? I am afraid that I find that he has. Those changes in placement will themselves have been harmful and I think it will have been harmful to him that his return to his parents care was delayed by 4 months, a significant contributory factor to that delay was the parents’ lack of action and motivation. In addition he has been placed at real risk of injury to his health and wellbeing by his exposure to hazards in the home, lack of appropriate supervision and unsuitable and dirty living conditions. The impact on a child’s self esteem as they get older of being dirty and smelly should not be underestimated. They can be isolated from their peers and struggle to form friendships.
103. The father still has some issues with managing his moods and with a risk of reverting to illicit drug use when he is under stress. The mother on her own, without significant support from the father cannot consistently meet AB’s needs. Dr Parsons found that and there is no evidence that this has changed since his assessment. Therefore the father’s difficulties are all the more significant. He has not been able to compensate for the mother’s own limitations and indeed some of the recent issues in relation to his mental health and anger issues and drug use actually heighten the risks. I do not accept that the issue is as simple as him now being available as he in no longer working.
104. Are the parents capable of meeting his needs? Yes they are. At times it is clear that they are able to recognise and prioritise his needs. They have shown that they can maintain a clean and suitable home; they can show commitment to AB by attendance at contact and consistent care within contact. However, I must consider the evidence in relation to their actual care of AB when he was living with them and was due to be living with them. Sadly, I find that this fell well below the level that I would say is good enough. I really don’t know why this was.
105. The parents are entitled to support in their parenting. Having considered the evidence of all parties I consider that the level of support offered to the parents was extremely high (indeed the mother reported the support worker visiting “every day”). Not all of the support that was available was taken up. Given the significant concerns that then arose, it is apparent that support from the LA or other services unable to redress the parents’ difficulties in meeting AB’s needs. It is hard to see what other or further services could have been offered. The level of support offered through Janine Potts visiting all day and every day is simply unsustainable in the longer term and ceases to be “support” and instead becomes substituted parenting.
106. I think that the mother is right when she recognises that some of the problems that the couple experienced were due to immaturity. This couple needs to be able to care for themselves and maintain an appropriate home, manage their finances and address the issues in their relationship in respect of communication and The father needs to be much further on with this therapeutic work before they would be in a position to take on the care of a dependant child. In my view they still have some way to go with this.
107. I am afraid that all of these matters lead me to an unavoidable and difficult conclusion that the risks to AB in being placed once again with his parents are far too high. The parents have given me no confidence in their written or oral evidence that they have sufficient understanding and awareness in relation to the processionals concerns to ensure that such concerns would not arise again in the future. Adoption really is the only option now available to AB, in my view, nothing else will do. I therefore refuse the parents application for discharge of the care order and make a placement order authorities n the LA to place AB for adoption.
108. I want AB to know that in my judgement his parents loved him very much and tried very hard but due to their own difficulties and difficult backgrounds, they were simply not able to meet his needs.

This is a difficult one – it isn’t the most overwhelming case for adoption that I’ve seen, but the Judge does do what the Court of Appeal have commanded – to grapple with the issues and weigh up both sides of the argument, and the Judge makes conclusions. I don’t think that it is a judgment that is vulnerable to appeal (which is not to say that the Court of Appeal might view that differently if asked) but there are no obvious flaws in the decision making.

If the case had been solely on the basis of the smoking and smokey atmosphere, then I don’t think it would have had this result, and if it had, it would have been successfully appealed.  As part of the large number of issues, its evidential importance becomes less significant.

I think that there’s an argument or debate about whether too much emphasis appears in the judgment on the smoking, but looking at the analytical portion of the judgment (as opposed to the passages where the Judge is quoting what the witnesses said), I don’t think that the Judge puts particular emphasis on the smoking – it is mentioned, but not disproportionately so.

Does this bit of the findings go too far?

I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.

He probably was exposed to excessive levels of smoke on the evidence. It is whether there was evidence that this exposure caused him harm, that might be more problematic. There is the evidence that the child had been prescribed an inhaler to help with his breathing a month earlier, so if the evidence before the Court was that the child had breathing difficulties, which would be causing him harm or discomfort, there could be a caustive link that the cigarette smoke, if excessive, was impacting adversely on his well being.  (In light of the President’s comments on Re A, I think that if there is to be a finding that the parents smoking caused him significant harm, the link needs to be very explicit)

Nor do I think that the report in the Guardian was misleading or distorted – its a very good summary of the case and certainly when you read the judgment, it is possible to see it being largely about smoking, too much so on first reading.  It was only when I read the analytical sections with close inspection that the case became more balanced than first appeared.

It is also worth noting that the Judge was critical of the Local Authority – when this case was first listed for final hearing,  it was only really in the mother’s evidence, that it became apparent that there were pfoessionals who had been frequently visiting the home for whom the Court had no records and no statements.The records were produced the next day. .  The parents wanted time to prepare their case and also wanted these witnesses to be called. In the event, those witnesses turned out to be key witnesses. The adjournment had to be granted. The Judge criticised the Local Authority for not having addressed their mind to the case that they were trying to prove and that these witnesses should have had statements prepared and served much earlier.

It was a shame that the Guardian (and the other advocates) had not grasped the significance that there was valuable evidence in the knowledge of potential witnesses who had not been called.  This case highlights that Guardians now very rarely read the primary evidence – the social work files and records, and are urged by CAFCASS not to do so – on the basis of ‘proportionate working’   (I’d sarcastically comment that where the order sought or contemplated is one that leads to adoption, that it would be proportionate for the independent representative of the child to look at the files, but that would be beneath me)

25. I queried whether the Guardian had considered the LA records and seen the significant involvement of these other workers. I was told that the guidance from Cafcass, in line with proportionate working, is that LA files will only be inspected if it is necessary. Sadly, in this case I think it was. I also made it clear to the LA that in my view the Presidents guidance, whilst helpfully sending out a clear message, is not new law. It is always for the LA to prove its case and it must do so on the best evidence available. It is unfortunate that no-one within the LA took a step back to assess what case it was trying to prove and what evidence there was to support such a case and then what witnesses could give that evidence. For example, a large plank of the LA case is that the home conditions were frequently dirty and cluttered and that the home was very smoky and smelly. Ms Tomblin had only visited on one occasion prior to AB’s removal and what she observed on that date whilst raising some issues, was not the picture that had been recorded by others of a home situation that was unsafe and unsuitable. Thought should have been given to what evidence she would actually be able to assist the court with and whether there were others who were able to give more direct evidence of the matters that the LA was seeking to prove.

26. This became even more stark when I was told at the resumed hearing of this matter that the LA had actually obtained a statement from Emma Green who was heavily involved with the family at the relevant time and who’s evidence was highly relevant, but for some inexplicable reason this had not formed part of the bundle, nor had it been served on the other parties.
27. I reminded all of the representatives, that I saw a collective responsibility between them to consider the evidence that it was proposed the court would be asked to consider and whether further evidence was needed, whether to support a party’s case or to enable an effective challenge and to alert the Judge to the fact that there may be evidential difficulties. Applications can be made on short notice and consideration could have been given to whether further witness evidence was necessary. It is disappointing that the parties have held a number of advocates meeting and as I have already said, the case has been listed for final hearing previously, yet these matters have never been raised. Nevertheless, the parents’ right to a fair trial undoubtedly required them to have the opportunity to see direct evidence and to have the ability to challenge such evidence. Inevitably therefore a further adjournment was necessary. I was also concerned that there should be no abuse of process and that the matter needed to be heard as soon as possible and therefore directed that the final hearing would be adjourned to commence afresh. I directed that the LA file evidence from those professionals who had been involved with the family during the rehabilitation period, specifically the Family Support workers and the Health Visitor. These documents have now been filed and all parties have had the chance to consider and respond to them. The parents have filed a further statement in which they perhaps go a little further in acknowledging some of the concerns.