There has been something of a grey area since Re B-S et al absolutely didn’t alter the law in any way at all, no sir-ee (it just looked like it did and sounded like it did and the Court of Appeal acted like it did, up until October last year when they told us that we were all fools and communists to think that a case that said that the test was nothing else will do was saying that there was a test and that the test was ‘nothing else will do’). I am sorry, although I do take sarcasm reduction medication, there is an election going on, so there is more sarcasm in my system than the medication can cope with.
Deep breath. The grey area is whether, in cases where a parent comes along after the Placement Order is made and says “I’ve changed” either as a leave to revoke the Placement Order application OR as leave to oppose the adoption application, a parent has to be in a position at the contested hearing to resume care of the child, or whether it is sufficient to say “I have changed, but I accept there needs to be an assessment to see if the change is enough for me to resume care”
It has cropped up a few times, but this is the first time that I’ve seen a senior Court explicitly tackle it.
Mrs Justice Theis in LA v FM & MA and Others (Application to revoke Placement Order) 2015
The Court here considered that the need for a further assessment, and the timescales for it, were relevant factors in assessing both the solidity of the mother’s application and whether it was in the children’s interest (both falling in the second limb of the two stage test) and decided that here, they weighed against granting the mother leave. That doesn’t mean that those things would be true of all cases, but it is significant that the High Court considered the point.
I’ll put the conclusions in full – the judgment is short if you want to read the background.
- This application is, in my judgment, finely balanced. However, I have had the opportunity to be able to reflect on the position overnight and, as will be clear from the two previous judgments given in this case, I have been anxious to see if this mother can make the necessary changes to be able to care for these two young children.
- I am satisfied that the first limb of the test is satisfied, namely there has been a change in circumstances of a nature and degree to reopen consideration of the case. That is accepted by the local authority and I think also the guardian. The steps the mother has taken in leaving the home she shared with the father’s relatives, if it is correct that is who they are, go to the police, take part in a video interview, prepare a statement, go to the refuge, embrace the support she has been given there, have clearly been of enormous benefit to her.
- The more difficult aspect of the case though is the second stage; whether in the light of this change in circumstances leave should be given for her to apply to revoke the placement order. In effect, what is sought by her is the return of both children to her care, which would be a wholesale reversal of the plan endorsed by the Court last year. I remind myself that the children’s welfare is relevant but not paramount and the Court needs to consider whether the mother has a real prospect of success in that application to revoke the placement order.
- Mr. Messenger places great reliance on paragraph 92 of my September judgment, where I set out the evidence of the professionals as to the four key stages before the Court could even embark on such an assessment: namely, the mother had acknowledged the domestic violence that had taken place in the home, she had acknowledged the father had caused C’s death, she accepted the findings that I had made and that a safety plan was in place. He submits the mother has effectively met those criteria and as a result of that leave should be given. However, in my judgment that is too narrow an analysis when the Court is considering whether to exercise its discretion in this type of application.
- In considering my discretion there are a number of relevant factors.
- Firstly, if leave were granted, Dr. R could report relatively quickly, certainly by the end of July, and no doubt a hearing could take place soon thereafter, so it is relied upon that there would be negligible delay.
- Secondly, the proposed adopters have been asked for their views in relation to this application. They are the current carers and they fairly say where possible children should be placed with their family, although they confess to being confused by this application because they thought the mother had been assessed but said they were 100 per cent committed and will wait if leave is granted.
- Thirdly, revocation of the placement order would amount to a wholesale reversal of the plans that were endorsed for these children in November of last year, nine months ago. This has to be seen in the context of the age of the children. B has been in the care of the local authority for half of his life and A for, I think, nearly three-quarters of his life. In November I considered their welfare required stability and security and that could only be achieved by the Court making orders that enabled them to be placed in the care of a family other than the birth family.
- One of the primary reasons for endorsing that plan was the mother’s inability to fully accept the findings that I had made, the risk of future harm and the need for honesty, which was not readily apparent from the mother, to enable her to work with the professionals.
- If leave is given, the mother would need to persuade the Court that she has the capacity to protect the children. That, on the evidence that is available, is going to require an in-depth assessment, as outlined in my previous judgments. It is likely to take at least four to six months at the very least. I suspect Mr. Y’s assessment is more realistic, that in the light of the evidence about the extent of her fear from the father and his family and the level of risk, it is more likely to take 12 months. In addition, there would need to be evidence about a secure safety plan in terms of placement and new identity and location.
- Such a position is almost certainly going to mean that there would need to be an adjournment in relation to the next hearing if leave was given to enable these assessments to be able to take place, and so there is likely to be considerable delay.
- There is a risk that the current carers would change their mind and not proceed with their application if that was in fact the realistic timescale, or at the very least it could jeopardise the stability of that placement.
- In addition, if leave were granted, it seems to me that there would have to be a forensic process to assess a number of matters. Firstly, the real level of the mother’s acceptance of domestic violence. The mother has said in her statement that there were only two occasions of physical violence, yet that was not what she said to Dr. A, as I set out at paragraph 21 of my judgment in September. The second matter that would need very careful investigation would be the precise circumstances of where the mother was living up until December 2013. Who she was living with, whether the people she lived with were in fact members of the father’s family, as she now says, or whether they were the friends who she persuasively presented to the guardian when he visited in September and who he observed the mother having such a warm and supportive relationship with. Either way, there is a considerable level of deception, either by the mother or by the people she was living with. The third matter that would need to be considered by way of a forensic process that would encapsulate the matters I have just set out is the position regarding the mother’s honesty as was set out at paragraph 98.4 of the September judgment. I accepted the powerful point made by the local authority of the need for those supporting the mother on the ground to have trust in her and confidence in her honesty and reliability. That, it seems to me, on the face of the information we have now, is a matter that would require very careful investigation by the Court.
- Turning to Dr. R, her report concluded that the mother did not suffer from any mental illness and was not suffering from post traumatic stress disorder. She set out in her report in July, and in her oral evidence to me in September, what further assessments were required. I agree with Mr. Y that a further report from her is not necessary, it would not add to what is already known about the work that is required and the broad timescales involved.
- I consider that if leave was given, it is very likely that there would be a delay of 6-12 months (at least) for the necessary work to be undertaken, with no guarantee of success, and, faced with that timetable, the application to revoke the placement order is in my judgment very unlikely to be successful, so it has no real prospects of success.
- I am also satisfied that it would not serve the welfare needs of these young children for the application for leave to revoke the placement order to be granted.
- Therefore I have reached the conclusion that the mother’s application should be refused. It is an application and a decision that the Court has made despite the changes the mother has made, for which she should be commended. The conclusion is reached with a very heavy heart because I know how much the mother wants her children to be returned to her care, but I consider the prospects of her successfully revoking the placement order to be remote and in those circumstances refuse the application for leave to revoke that order.
- That leaves the application to discharge the care order. That has to fail too, for the reasons I have outlined. For the avoidance of doubt, I am also refusing the application to discharge the care order.