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relatives and 26 weeks – a reported Auntie Beryl case

 

It has been a vexed issue ever since the 26 week guillotine came in, heightened by the Supreme Court and Court of Appeal’s emphasis on adoption as ‘last resort’ where nothing else will do  – what is a Court actually going to do when a relative comes forward at week 20, week 22, week 24, and assessment of them would derail that all-important timetable?  This is something I dubbed the “Auntie Beryl” question, and it is one that crops up in these cases around the country.

We won’t really know until a Judge somewhere tells Auntie Beryl that she is too late, that she should have come forward sooner, that she can’t be assessed, and makes an adoption order. Then that will be appealed and the Court of Appeal will try to square that circle of “26 weeks” with “nothing else will do”

In this case, which is the first to touch on this point since it became a genuinely difficult issue  (since pre 26 weeks, the assessment would ordinarily be done), the High Court attempted to deal with it.

Re K (A minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4580.html

The grandparents in the case put themselves forward as alernative carers really early on, just after the child was born. A “guardedly positive” viability assessment was prepared.  At a hearing in March 2013, the grandparents decided with a heavy heart that they weren’t able to offer a permanent home and withdrew.

However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application. The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K. She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis. The grandfather, who had had a heart attack two and a half years previously, had started having chest pains. They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved. They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs. They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.

 

In due course, having completed assessments of the parents, the Local Authority’s plan was for adoption.

Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today. The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him. She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk. They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application. They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.

 

The May hearing was pushing very close to the 26 week deadline. It certainly would not have been possible to undertake the Special Guardianship assessment within that period – in fact, the assessment would have required another 12 weeks, pushing the case from a six month case into a nine or ten month case.

The Court had a hearing to decide whether to grant the grandparents leave to apply for a Special Guardianship Order (i.e to delay the final hearing to obtain that assessment) and heard some limited evidence from the grandmother.  The Court referred to the case law in relation to applications for leave (although personally, I think the caselaw cited is somewhat out of date, and there is substantially more recent authority making it plain that it is a more nuanced procedure balancing all of the factors rather than Re M 1995′s rather ‘soundbite’ approach – the Court of Appeal in Re B (A child) 2012 [2012] EWCA Civ 737  – in fact, the Court of Appeal say that rather than s10(9) containing a ‘test’ or anything like a ‘test’ to be crossed it simply tells the Court to have ‘particular regard’ to certain factors, whilst other factors can by implication be weighed in the balance too)

The Judge concluded

    1. I am sure that this application is entirely well meant and good-hearted. But it is emotional, unconsidered, unrealistic, and not thought through, I suspect that the prospect of losing contact with K has been a very powerful factor here.

 

    1. No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child. I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required. The grandparents know very well that they cannot properly commit themselves to this task. This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority. Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.

 

  1. I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it. I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success. So I do not simply bring the guillotine down on the basis of 26 weeks. This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts. It is for me to factor in all these considerations in K’s interests. Therefore I refuse the application.

 

Not quite an Auntie Beryl case in that the Court felt that there was enough information to say in effect that the grandparents application was not going to be successful even if the proceedings were delayed – rather than there being a paucity of information about the family member due to late presentation.

Parker J then gave some general guidance

    1. Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit. The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.

 

    1. Some measures may assist the court to manage such applications :-

 

a. Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.

b. Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification.

c. Any application for further assessment or joinder by a relative or other person must be resolved very swiftly. Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed.

“The peril of Auntie Beryl”

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   - not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section  31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long- term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other  member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

You can’t take it with you?

 

 

A knotty issue about Special Guardianship

I was asked a question about Special Guardianship today, and as I had entirely two different answers within the space of ten minutes, I thought it might be worth a discussion.

The questioncan be simplified (ha!) to this :-  “If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

 

My initial reaction was that the PR from Special Guardianship Order (like that of Residence and unlike that of adoption or being a birth parent) exists so long as the order exists, and thus it isn’t something which can be left to someone else in a will.

 

My second reaction was, that perhaps Parliament did intend to give Special Guardians such a power, it being an order more in character with “adoption-lite” than the “Residence plus” it has become in practice.

 

My third reaction was “I don’t know, I’ll have to find out”   which is my favourite sort of thing.

 

 

Well, firstly, there’s nothing in the Special Guardianship provisions which says that the order ends if the Special Guardians die.  (One might have thought, given that this is an order often made to people who are considerably older than the children concerned, that it should have been at least contemplated)

Here are the things that stop a Special Guardianship Order being in force :-

1. The Court granting an application to discharge under s14D

 

2. The Court making an order to discharge under s14D of its own motion

 3. That is all.

 

I find it a little bit bizarre that, for example, making a residence order to the father or mother wouldn’t discharge the SGO, but there you are.

 

According to Hershman McFarlane “Children Law and Practice”  the making of a Care Order does NOT discharge the Special Guardianship Order   (D904)  and I can find nothing to contradict them.  Common sense and logic says that surely it must, but the constructors of the legislation omitted it entirely. The making of an SGO does, however,  discharge an existing Care Order.  s91(5A)  .

 

This immediately makes me think that it is THEORETICALLY possible for a Court to make an SGO, pause for breath and make a Care Order. Who has ‘super PR’ in those circumstances?

Which wins

 

14C Special guardianship orders: effect

(1)The effect of a special guardianship order is that while the order remains in force—

(a)a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

OR

 

33 Effect of care order.

(1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2)Where—

(a)a care order has been made with respect to a child on the application of an authorised person; but

(b)the local authority designated by the order was not informed that that person proposed to make the application,

the child may be kept in the care of that person until received into the care of the authority.

(3)While a care order is in force with respect to a child, the local authority designated by the order shall—

(a)have parental responsibility for the child; and

(b)have the power (subject to the following provisions of this section) to determine the extent to which

(i)a parent, guardian or special guardian of the child; or

(ii)a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

The first says that the SGO may exercise their PR to the exclusion of anyone else with PR, the second says that the LA PR trumps everyone elses.  Which of them actually has the trump card?   Forget irresistable force versus immoveable object, this is two irresistable forces meeting head-on.

 

 

If you are a Judge, and you feel mischievous, or you’re up for retirement and just want to go out with a bang, please make an SGO, pause and then make a Care Order, so that I can see what the answer to this is.

[The wording of s14C  also raises interesting theoretical problems where the SGO is made to two people, grandma and grandpa, say, and they then separate. Whose s14C power trumps whose?]

 

But, you are saying, surely the order discharges if the child dies?  Well, to all extents and practical purposes yes, but legally speaking, no.

 

Section 14 (C) (5) of the Children Act 1989  imposes a duty on Special Guardians to notify the parents of the child if the child dies

(5)If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a)each parent of the child with parental responsibility; and

(b)each guardian of the child,

but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

 

Implying that in law, the concept of them continuing to be a Special Guardian (rather than “the former Special Guardian” ) exists.

 

 

Anyway, back to the issue.  So there’s nothing specific in the Act that says the SGO ends with the death of the Special Guardian.  Again, in practice, their exercise of the order is of course curtailed, unless Derek Acorah is on hand to impart their wishes and feelings with a Scouse flavour.

 

 

Can they appoint a Guardian to look after the child after their death?

 

 

Yes   (underlining mine)

 

 

(4)A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death].

(5)An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—

(a)in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or

(b)in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.

(6)A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.

 

 

But hang on, what if the Special Guardian dies, and the birth parents are still alive?  Doesn’t their existence trump the appointment?

 

Again, my underlining to aid with clarity

 

S5 (7)Where—

(a)on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or

(b)immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child’s only (or last surviving) special guardian,

the appointment shall take effect on the death of that person.

(8)Where, on the death of any person making an appointment under subsection (3) or (4)—

(a)the child concerned has a parent with parental responsibility for him; and

(b)subsection (7)(b) does not apply,

the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.

 

 

So, a father appointing a guardian after his death would not have that guardian appointed where the mother was still alive (or vice versa), but a SPECIAL GUARDIAN who appoints a guardian for the child has that guardian’s pr kick into life as soon as the Special Guardian dies.

 

There’s a procedure in section 6(7) of the Children Act 1989 for an application to dismiss a person as a guardian  (and indeed even the guardian themselves can do this).

 

Sadly, I can’t find any caselaw where this has actually happened. Boo.  I would LOVE to be wrong, please let me know if so.   The only piece of caselaw in the whole Hershman McFarlane chapter on guardianship (which I have never read before today) is a 1959 case, saying that where there are two guardians   (yes, the Court can appoint an unlimited number of guardians) and they are in conflict, one should step down.

 

 

But what I don’t believe is the case is that the ‘super PR’  (or more accurately, the power under s14C

 

 

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

Passes to the guardian.  I think it is just PR, putting the guardian and the birth parents on a more equal footing.

 

A guardian being appointed doesn’t stop the parent seeking a residence order in their own right.  (It would be interesting, given what I suggest about whether the SGO remains in force, whether the parent has to have LEAVE to make such an application)

 

If the Court were dealing with a residence/contact/specific issue dispute, between a guardian and a birth parent, I’m not sure I would have confidence as to whose views would win out, I think it would be entirely a merit-based decision.

 

So, the ultimate answer to the question originally posed

 

“If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

Is “maybe”

 

And I managed to be wrong twice in ten minutes, despite seemingly having covered all the bases.

 

Or as the Reverend Lovejoy said “…ooooh short answer yes with an if, long answer no with a but…”

I wish I was Special, you’re so very Special (Guardians)

 

 Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

 

 

I did an SGO hearing this week, and two things struck me on it. 

 

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

 

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

 

 

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it.  [I won’t name her, but it was a fascinating issue – well, to me at least]

 

The question, in simple terms, is this :-

 

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

 

 

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact.  From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

 

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

 

 and three possible contact quantums

 

Six times per year

Two or three times per year

No direct contact or once per year

 

 

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

 

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them. 

 

 

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

 

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

 

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

 

 

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’  but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55  and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

 

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

 

Compare RE L  (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

 

With  RE R (A CHILD) (2005) [2005] EWCA Civ 1128  where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

 

In Re L – the contact order and various conditions, had been at the behest of the Local Authority,  and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

 

This is what the Court of Appeal said about that  (underlining mine)

 

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

 

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

 

 

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

 

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

 

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

 

 

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

 

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

 

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual  (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

 

[*to me, not necessarily universally]

 

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact.  But how much distance remains uncertain.

 

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it.  I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us.  Is there some part of the contact process which differs in a case of Permanence  (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

 

 

 

 

Post-script

 

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

 

I’d thought that the application would just be a straightforward section 10(9) leave application  (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from  RE G (A CHILD) (2010) [2010] EWCA Civ 300  that the Court of Appeal have ruled that it is appropriate to use the Warwickshire  test   from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084  that test being  (I’m paraphrasing, but not by much)  “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

 

Using the Warwickshire test makes it very hard, without question.  

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

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