Inadequate welfare evidence

This is a County Court decision (or as I have to call it now, a “Family Court” decision, ffs) originating from His Honour Judge Wildblood QC sitting in Bristol.

The Local Authority is not named, and one should not leap to the conclusion that it is Bristol (often County Courts deal with multiple Local Authorities). I’m not sure why they are not named, I would have named them, I would not have expected, had I been representing a Local Authority in these circumstances, to escape them being named.

Re R (A child: Inadequate Welfare Evidence) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B101.html

Whichever Local Authority it was, perhaps those involved had been out of the country for a year or had no access to the internet, because this was an application for a Placement Order that took no account of Re B, Re B-S, Re G, Neath Port Talbot – in short of anything that has happened in the law relating to care proceedings and placement order applications since summer of 2013.

The Judge was scathing of this, and rightly so. This particular passage is telling

This is exactly the sort of case where linear analysis must be avoided. Since I had to explain to some what that meant (sic) during the course of this hearing, let me set out what was said by MacFarlane LJ in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

The judicial ire did not merely fall upon the Local Authority (although a lot of it did), the Guardian copped it as well

On paper the guardian supported the Local Authority’s position. I have great respect for G who is a very experienced guardian but I am afraid that I do say that his report involved a linear analysis (and I invited him to consider overnight a more holistic approach to the issues before the court before he gave evidence). He accepted in his oral evidence that his report ‘might not be his best piece of work’ and a reading of his report would confirm that to be the case. By the time that he gave evidence his opinion was that this case is finely balanced, that there would be no basis upon which rehabilitation to the mother could be refused if she maintains her current lifestyle and there is a realistic prospect of her doing so.

The nub of the case was that the mother of the child had had four previous children, none of whom lived with her and had sadly had long-standing alcohol difficulties. The mother said that she had brought her alcohol problems under control since November 2013 – there were three incidents where it was believed that she had consumed alcohol, and the alcohol testing suggested that she had not been drinking since January or February 2014.

The key issue was therefore whether mother could maintain abstinence and care for the child with support. Little surprise then that the Judge was very critical that the Local Authority had not turned their mind in their final evidence to the sort of support that might be provided to her if the child returned to her care

When I asked ‘Where is the written evidence from the Local Authority of the services that it would provide to the mother if Ch were to be rehabilitated to her?’ I was told that there was not any. Further, I was told that there has not been discussion between the Local Authority and the guardian about the support services that might provided. That is not good enough. Of course, evidential deficiency may be partially remedied by oral evidence at a hearing; however, where the Local Authority documentary analysis fails to consider what might be done to support the mother it means that it has ignored the requirements of proper case preparation and has engaged in analysis that is significantly lacking. Thus its own processes of analysis are deficient. The case that this Local Authority needs to read and absorb is that of Re W [2013] EWCA Civ 1227. Paragraph 101 includes the following passage from the judgment of Ryder LJ: ‘The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations’.

Further, oral evidence cannot provide the sort of joined up thinking that a Local Authority must be expected to conduct when deciding whether supported care by a parent is feasible. In other words, this Local Authority should have engaged in full discussion and analysis with potential agencies of support in order to formulate its care plan. That simply has not happened. I regard that evidence of services and support to be particularly important in a case where there is clear evidence of progress by the mother in relation to the core issues of ‘concern’. The guardian’s oral evidence was that ‘there is a do-able package of services that could be put in place that would sufficiently monitor the mother’s care of Ch if she maintains her current lifestyle’

The Judge was particularly sharp (and rightly so) that the key questions in the case weren’t addressed in the written evidence but seemed to have been posed for the first time by the Judge himself

It should not be for the judge at a final hearing to raise the following questions and create consideration of them:

 i) If the mother does sustain her current lifestyle, is there any reason why she should not care for her child?

 ii) Is there a realistic prospect of her maintaining her current lifestyle?;

iii) Is there a feasible package of support that could monitor whether the mother does sustain her current lifestyle?

[I do wonder in relation to all of this – the Guardian’s analysis was poor, there were missing elements in the social work final evidence that could be described as ‘gaps’ in the same sense that the Grand Canyon is a gap, there was no Re B-S analysis, no assessment of mother’s relationship with the child, no updating view from the expert who assessed mother in pre-proceedings…. What was going on at the Issues Resolution Hearing? Why was nobody saying this? Had anyone actually read the evidence? Had a Judge read it?  How did this case even get to final hearing when it was so flawed?   I mean, I KNOW the answers – IRH’s are not being used properly to identify the issues and assess the evidence, but these were not small flaws in details or matters that could only emerge through rigorous cross-examination]

Another issue that the Judge was critical of was the decision by the Local Authority to deal with the case in pre-proceedings (not merely pre birth, but once the baby was born) by voluntary accommodation rather than issuing of proceedings.

By an application made on 3rd April 2014, the local authority seeks a care order in relation to Ch who is aged 3 having been born on 24th February 2011…

Nine months after the Local Authority closed the case the incident occurred on 18th August 2013 which resulted in Ch being accommodated by the Local Authority. The mother was discovered in a state of drunkenness, the home was unclean, Ch was in a state of neglect and a man was present in the home whom the mother said that she had met that day. There can be no doubt whatsoever that this was no environment for a child of this age to be living, as M herself accepted in evidence; she was in no fit state to care for him and, on the evidence that is now known, had been in no fit state to care for him for a long time.

Rather than bring the case to the court the Local Authority then engaged in a very slow moving non-court based process for the next eight months

The Judge obviously did not make the Placement Order sought by the Local Authority (as originally supported by the Guardian until he was giving his oral evidence) and adjourned the case to get the proper evidence and assessments which ought to have been available from the outset.

I’ve included the Welfare Checklist analysis from the judgment in full, as it is illuminating

Ch is obviously too young to express his feelings. He enjoys his contact with his mother and, as a child who is 3 ½ years old, recognises her as his mother.

He needs to live within his natural family unless, as a last resort, this is not possible. It would not be possible for him to do so if M reverted to her former way of life. He would not be safe either emotionally or physically. Taking the checklist factors out of turn, he has suffered emotional and developmental harm through the mother’s vulnerabilities, lifestyle and, in particular drinking. No child of his age should have been left to live with a mother who a) Was as vulnerable as she was, b) was drinking at the level that she was drinking and c) was involved in violent relationships as she was.

Thus an assessment of the mother’s ability to sustain her current lifestyle is fundamental to the solution to this case. I agree with the guardian that, if the mother does sustain her current lifestyle there would be no reason to refuse rehabilitation. I agree with the guardian that on the evidence that I have heard there is a realistic prospect now of this mother sustaining her current way of life and, if she does so, there would be no reason why Ch should not be rehabilitated to the mother’s care. However given the ‘catastrophic’ consequences for Ch if a wrong decision is made within these proceedings I do not consider that there is sufficient evidence on this issue for a final conclusion to be reached given the manifest inadequacies of the evidence that has been placed before me.

The likely effect on Ch (throughout his life) of having ceased to be a member of the original family and become an adopted person is not analysed in the Local Authority’s documentation [See C131] or within the guardian’s report. It is an aspect of the welfare checklist that the Court of Appeal has repeatedly stressed for its importance. The President said this in Re B-S [2013] EWCA Civ 1146 in the context of an application for leave under section 47 of the 2002 Act: ‘The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child….. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appears likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

As to Ch’s age, sex, background and characteristics, he is a child who has suffered harm in his mother’s care. He was seriously delayed in his development when accommodated and remains a vulnerable child who was subjected to his mother’s chaotic lifestyle for too long. I do not think that one can view an adoptive course as being without its own potential difficulties given his background. He has now been in temporary foster care for 12 months. There could not be any sensible suggestion of any form of lengthy adjournment. He needs a decision to be made for him that is correct and made as soon as sensibly possible. In fact, due to the Local Authority’s delays, the case can and should be resolved within the 26 week period from initiation – i.e. by 1st October 2014.

I have already analysed harm. As to risk of harm – is there sufficient evidence to conclude that there is such a current risk as to deprive Ch of his otherwise right to an upbringing with his mother? The Local Authority suggests that there is such a risk but, in my opinion, it has not mustered its case adequately to justify a conclusion being reached on this issue. It has not addressed core questions within the proceedings, its welfare analysis is inadequate and it has not produced considered evidence about the services that could be provided. Having sought the opinion of an expert it has not reverted to the expert to see the extent to which the mother has responded to his suggestions at G77 to G78. When I asked: ‘Where is the evidence or analysis of the value to the child of the relationship between the mother and the child’, I was told that it is ‘implicit’; I asked to be referred to any passage within the parenting assessment where that relationship was considered and was told that it was not possible for me to be so referred. That is simply unacceptable.

In terms of the welfare checklist within the 1989 Act it is necessary to consider the effect on Ch of any change of circumstance. His circumstances must change. He cannot remain in temporary foster care. In my opinion that change of placement (whenever it might leave him) needs to take place as soon as possible and on the basis of a correct analysis of proper evidence. The change of placement from his temporary foster carers will be a major move for him and, whatever might be the limitations of his attachment to the foster carers, it is bound to impact on his emotional wellbeing. He needs to move once and once only. A change of circumstance so that he became an adopted child would be a major change and would have the consequences that I have already detailed. A change of circumstance which left him returning to the previous, pre-August 2013, environment provided by his mother is unthinkable. If he were to be rehabilitated to a mother who was stable and able to care for him that would be the best solution for him if possible.

As to the relationship that Ch has with his mother, this appears to be warm and loving. Its value to Ch is obvious: nature, law and common sense require that it be recognised that the best place for a child to live is with a natural parent unless proven and proportionate necessity otherwise demands. This mother genuinely wants to care for him and is motivated to do so. This case is not about the motivation or warmth of relationship that M offers. It raises the question of whether the mother could sustain his care without reverting to her previous lifestyle. On that issue I require further evidence; it is at least possible, on what I have heard, that she may be able to do so. However, I need further evidence of how ‘capable’ she is of doing so (to use the language of section 1(3)(f) of the 1989 Act).

As to the range of powers available to the court, I do not think that it would be remotely correct to express a concluded view of the outcome of the case on the inadequate evidence that I have heard. I therefore intend to exercise the power to adjourn the case for further evidence to be obtained.

The closing remarks of the judgment are also telling

I am releasing this case for publication on Bailii in accordance with the transparency provisions because I regard it to be in the public interest to do so. It is an example of the approach by the court where inadequate welfare evidence is provided. I hope that it shows the degree of care that the court takes and how resistant the court is to any suggestion that it should simply rubber stamp the conclusions of professional witnesses where the underlying analysis is inadequate. I would like to pay a tribute to the advocates in the case. Mr Cranfield has done his utmost to repair the inadequacies of the Local Authority’s case (and has done so with his typical skill); however the task was even beyond the reaches of that very apparent and well known skill.

[Of course, having looked at the new standardised social work statement model due to be rolled out in December, these sorts of vital considerations in the new statement model get the same sort of “extensive coverage” as an insy winsy teeny weeny yellow polka dot bikini, so we may be seeing a lot more judgments like this next year]