One of my commentators asked me this week whether there were many authorities on discharge of Care Orders. I can’t claim any credit for the fact that a case has now turned up.
This is a case decided by a Circuit Judge, so it is not binding authority, but it throws up some interesting issues. Particularly for, and about, Independent Reviewing Officers. The judgment is critical of the Local Authority (but more about the systems than the individual worker concerned, though she is named)
Re X (Discharge of Care Order) 2015
This was the mother’s application to discharge the care order on her son X, who is now 14. That order was made in 2001. Very peculiarly, X was at home with his mother under a Care Order until 2010 (and the removal appeared to have happened following mother’s application to discharge the Care Order then). X then came into foster care and has been there since then.
The mother had care proceedings on two younger siblings of X, concluding with no order in 2012. So those children live with her, there are no statutory orders and they are not open cases to social workers.
In the period since the court made its orders of June and December 2012, D’s two youngest daughters have remained in her care. There has been no statutory involvement from Social Services; it is therefore reasonable for the court to assume that the Local Authority has no concerns about the care provided to them. D, very sadly, has been involved on the periphery of proceedings relating to a number of her grandchildren, at least two of whom have been permanently removed. Her losses have continued, therefore, to be many and great.
X has autism, so has significant needs of his own.
I’ll do the law Geek bit first.
Geek point 1 – scrutiny of care plan
When the Children and Families Act 2014 was a twinkle in the drafter’s eye, there was much talk about changing the Court’s relationship with care plans, reducing the scrutiny of them down to the essential matters – no doubt with the hope that the time spent in Court proceedings micro-managing every aspect of the care plan and litigating about every tiny aspect could be cut out and that would speed things up. The Act duly did include a clause to the effect that the Court was only REQUIRED to look at
section 31 (3B) Children Act 1989
…such of the plans 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;
(c)long-term care not within paragraph (a) or (b).
i.e just a flat-out ‘where is the child going to live under this plan’.
I haven’t seen that really happen, and also I haven’t seen it appear in any law reports. Until this one
Section 31(3)(A) further makes clear that the court must limit its consideration of the prescribed elements of the care plan as to placement, and as the commentary in the Red Book suggests that must necessarily be limited to the form of placement, not the detail of it. I am, however, nonetheless satisfied that, in this case, the court can and must look at the implementation of the plan and its effect on the child in order to complete the welfare evaluation.
Which is a really elegant way of saying “The Act says that I’m not REQUIRED to look at the detail of the plan, but to decide the case fairly, I still need to”
Geek point 2 – Court keeping hold of the case to hold the LA to account
The Guardian in this case told the Court that she did not support the mother’s application to discharge the Care Order, but wanted the Court to adjourn the application, because the LA had made such a mess of things there was little confidence that if left to their own devices without Court scrutiny they would fix things.
It is submitted on the guardian’s behalf that the Local Authority has so failed in its duty as corporate parent to implement the final care plan approved by the court that it should be held to account and its future planning overseen by the court. The guardian urges the court to require the Local Authority to produce an updated plan that is coherent, choate and capable of implementation. The guardian supports the discharge of the Section 34(4) contact order. She does not support the making of a defined contact order in substitution, but invites the court to direct the Local Authority to confirm its commitment to contact at the level of six times a year in its revised plan
The Local Authority argued that the Court had no jurisdiction to do that. And if they didn’t use the words ‘smacks of starred care plan’ in their argument, I’d be highly surprised.
The Court accepted that there was no jurisdiction to adjourn the proceedings just to monitor the LA. But did decide that there were some material bits of evidence that were needed before mother’s application could be properly determined. (so a half-way house). The Judge also ordered, that that evidence should be obtained through an independent social work assessment.
Geek point 3 – the legal approach to a discharge of care order
The Judge points out that the burden is on the applicant (i.e mother) to show that the order should be discharged
It is for Mother to satisfy the court that there has been a material change of circumstances and X’s welfare requires discharge of the care order.
But then goes on to say that in considering article 8, the Court would have to consider whether it was necessary for the Care Order to remain and to only continue the order if it was proportionate.
The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate
Those two things involve some degree of conflict – it seems that the burden is on mother to show that the Care Order should be discharged and simultaneously on the LA to show that it is proportionate for it to continue.
I’ve never seen that argument advanced. It seems in keeping with the spirit of Re B-S (where even if the Court has approved the plan of adoption by making a Placement Order, when the Court is considering making an adoption order, it still has consider whether the plan already approved is necessary and proportionate). But it jibes with a fundamental principle of English law that the burden falls upon the applicant.
I don’t want to say that the Judge is wrong here, and I’m not even sure that she is. I think it is a natural consequence of the need to apply article 8 to any decision made by the Court in family proceedings that the Court need to be satisfied that the interference (even continued interference) by the State in private and family life is proportionate. I think that she has spotted something clever that I had overlooked. It made my temples throb a bit to think about it. I wonder if we will see this revisited.
Judicial criticism – LAC reviews
There were major issues in this case. One was that despite the child having been in care since 2010/2011 with a plan of long-term fostering, he was still waiting for a placement. Another was that the therapy and work that he obviously needed still hadn’t materialised. (And if you are thinking “I bet they made a referral to CAMHS and that was the end of it”, then you are both a hard-bitten cynic and right. )
There was also the issue of contact, particularly contact with his siblings. And the issue that the LA had basically stopped working with the mother altogether.
She is described as being ‘challenging and forthright’ (which is a bit like those obituaries you see of famous people that say ‘fun loving and gregarious’ when they mean ‘an alcoholic who was exhausting to be around’ or ‘was not one to suffer fools gladly’ to mean ‘was obnoxious and vile to everyone who worked with him’. )
But let’s quickly look at how little involvement the LA were having with this mother (who lets not forget was SHARING PR for this 14 year old)
It is unusual to come across a case where a mother who continues to share parental responsibility is excluded from the LAC reviews, is not provided with the name of the social worker working directly with the child, is not provided with information about the child’s school, receives no updates of his medical condition and no updates of his work with the therapeutic services. As far as I understand it, she was not even provided with redacted copies of the school reports.
Yes, you read that correctly. The LA weren’t even telling the mother the name of the social worker.
The bigger issue, however, with all of these things was, where was the Independent Reviewing Officer in all of this?
I mentioned ‘starred care plans’ earlier – if you are not one of my more breathtakingly beautiful and vivacious readers [translation :- older] you may not know about starred care plans. They were a short-lived invention of the Court of Appeal, to deal with the concern that where the Court approves a care plan and makes a Care Order, the LA then go off and run their Care Order and there’s no mechanism to get the case back before the Court to say “hey, they aren’t doing what they promised”. The House of Lords squashed that mechanism but did say that there ought to be some form of mechanism created by Parliament to address the issue. As a result, Independent Reviewing Officers were created by Parliament – to scrutinise performance of a care plan and also giving them the ability to refer any breach to CAFCASS who could in turn apply to Court. (Last time I checked, nationally there had been 8 referrrals and 0 court applications, so that’s working well)
29. The LAC reviews, whilst being required to consider the plan for permanence, appear to play lip service to the need to achieve this. There is no record of reasoned debate and discussion about the child’s need for permanence or how the plan for permanence might be reviewed and achieved. It is fortuitous that X has been able to remain where he is to date. It may be that he will remain there until he achieves independence. Nonetheless it is regrettable that the Local Authority failed to rigorously pursue suitable alternative long term placements for X or demonstrate a determination and clarity of thought in the allocation of their resources. The LAC review minutes do not demonstrate clear and strategic planning in the search for a family even during the period when the Local Authority knew of the equivocation of the current carers.
- It is generally acknowledged that the earlier a child achieves permanence the better. It is all the more important for a child like X, whose needs are necessarily heightened by his family history and his autism. I am advised by the IRO that there are significant resource issues for family finding, and finding long-term foster homes for boys is more difficult than for girls. I note the evidence of the independent reviewing officer, Mr Moore, who indicated that 75% of the children he was responsible for with a plan for long-term fostering were still waiting for a permanent placement more than two years after final order.
- At this point, it seems to me appropriate to consider the role of the independent reviewing officer in X’s case. Mr Moore has been the independent reviewing officer for X since July 2012. Graham Moore provided a statement and gave evidence to this court. He is an experienced IRO, having been engaged in that role for the last five years. Before that worked as a Cafcass guardian. The IRO accepted that his role meant that he had responsibility for
i) providing independent oversight of the Local Authority’s care planii) ensuring that the child’s interests were protected through the care planning process;
iii) establishing the child’s wishes and feelings.
The IRO accepted the statutory requirements of the LAC review process and that as IRO he was responsible for setting a remedial timescales where necessary.
- Whilst parents do not always attend LAC reviews, a system is generally devised to enable meaningful sharing of information following LAC reviews. Mr Moore told me that he had endeavoured to meet D in order to achieve this, but they had not been able to meet. Regrettably, no other practical system was implemented to enable the sharing of the outcome of the LAC reviews.
- The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child’s needs the IRO should escalate the issue to ensure the child’s welfare needs are met. In this case the Access to Resources Team (family finding) failed to find a permanent placement for X in circumstances where his carers were clearly equivocal about whether they could offer him permanence. Yet the IRO did not escalate the issue. The IRO’s monitoring of the Local Authority search for a permanent placement principally rested on information provided by the social worker. The Access to resources team did not provide regular updates on the outcome of its searches.
- The IRO confirmed in evidence that he could not recall another case where a parent had been totally excluded from the LAC process for two and a half years. He accepted that Mother should have been receiving information from the school and had not received it.
- Criticism is made of the IRO for failing to robustly manage the Local Authority’s implementation of the care plan or pursue the requirement for permanence. I have no doubt that Mr Moore is an extremely hardworking and dedicated member of the Independent Review Team and I am saddened to reach the conclusion that, in this case, he failed to bring independent, robust and effective overview of the Local Authority management of the X’s plan.
- The independent reviewing officer is intended to be a robust mechanism designed to hold a Local Authority to account in the management of a child’s plan. In this case, the opportunities to impose remedial timescales and to escalate inaction and delay were not taken.
As the LA had not been engaging with mother since X came into care, the Judge had no real evidence about a key facet of the case. The Judge could see that mother was managing her two children at home with no concerns, she could see that X was still a challenging child with many difficulties, but there was nothing to show whether mother would be able to work with professionals in such a way that X could be cared for at home.
Most unusually in this case, however, I have no information at all as to Mother’s engagement with the Authority in consequence of the way in which the Local Authority have managed the plan, and no means of determining Mother’s insight and understanding of X’s changing needs.
- The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate. I am concerned that in the context of this application there is a lack of relevant information as to the nature, significance and degree of change made by Mother, and that it will be difficult to conduct the courts assessment fairly and appropriately unless that gap is filled.
- In my view, it will be necessary for the court, therefore, to receive some further evidence as to Mother’s ability to engage and work constructively with and to understand and demonstrate insight of the needs of X. Furthermore, the court requires an update from the Local Authority as to:
i) the implementation of their care plan as to placement, therapy and contact and
ii) the detail of the services the Local Authority would provide or could provide to support X if he were to return to the mother’s care.
It is noteworthy that the court directed the Local Authority to provide details of the support services it would put in place if X were to return home by its directions of 4 November 2014. To date the Local Authority has failed to provide the details of those services.
It seems to me that, absent this evidence, the court will be unable to complete the welfare evaluation. Counsel will need to address me as to the form of the additional evidence. I would be minded to direct the instruction of an independent social worker to complete a piece of work with D within four to six weeks. I am conscious that delay is inimical to X’s welfare and that this court needs to make a determination of the application for discharge as soon as is practicable.
- I consider that such an assessment will be necessary to enable the court to complete the welfare evaluation. I am conscious that no Part 25 application was issued, but it is clear to me, having heard the evidence of the mother, of the Local Authority, of the IRO, and of the guardian, that a gap remains.
Last minute evidence
Just as the parties were about to go into Court on this one, bearing in mind that a major issue was whether X could be found a permanent foster home (and his current carers having been saying that they wanted to foster three children, but if they offered a permanent home for X they could only look after him alone, because of his needs), news came that X’s current carers were willing to offer him a permanent home.
- In evidence on Monday, Ms Allen said she had just received confirmation from the team charged with family finding for X, that the carers had now made a firm decision to offer a permanent home to X. I was further told that the Local Authority have made a firm commitment to put resources in place to enable X to remain with his carers permanently as the sole child in their care.
- This change in the Local Authority’s case caused some consternation in the mother’s legal team. There had been insufficient time to share this change with the mother or with the children’s guardian before coming into court. I quite appreciate how difficult it is to share updating information in the scramble to get it into court, particularly where you have a judge who requires everyone to be in promptly, but it is most unfortunate that the team charged with family finding left matters so late as to create this difficulty. The mother and the children’s guardian are now perhaps understandably cynical about this new information. For the mother, it appears too little too late, and for the children’s guardian it raises questions about the carer’s motivation.
- Ms Little for the Local Authority reassures the court and the parties that the issue is not one of finance for the carers but rather their genuine desire to offer a home for three children rather than limiting themselves to one. The question of their motivation and the basis on which they are now able to offer themselves as permanent carer will no doubt be under review in the days following this hearing.
- It is nonetheless clear that, since at least December 2012, the Local Authority have been aware that the current carers were at best equivocal about X remaining with them on a long-term basis. What is not clear is what efforts the Local Authority’s Access to Resources Team made to find a permanent placement for X I am told that two referrals were made to the team, the first being the principal referral and the second an updating referral. Moreover I am told that Ms Allen spoke to the team from time to time and was satisfied that they were alive to his need for placement and knew of X’s placement needs. The searches appear to have been limited to two geographical areas in line with the wishes of X and the location of his current placement and school
- I am advised that no financial restraints were imposed on family finding. I am further told that it is, and was, reasonable for the Social Work Team to rely on the Access to Resources Team to progress the search for a long term placement on the basis of the two referrals and that no further prompting or enquiry from the Social Work Team was required.
There are two other Circuit Judge judmgnets published today in which the LA sought Care Orders with a plan of adoption and the Court instead made orders that the children were returned to the birth families. Not of any great legal significance because they turn on their facts, but I know that many of my readers may be interested in such cases and they may also be a useful mental exercise of whether these cases would have had these outcomes in 2011.
The court should have decided on the basis of what would be in the best interests of the child and not whether the applicant had proved change or not.The fact that 5 years had gone by and two other children had been happily brought up should have been enough to say that was in itself a change.
Secondly the 14 year old child should have been consulted.Autistic children can still hold very strong opinions.
“I am told by Ms Allen (as confirmed by the guardian) that X is doing well in placement and he is doing well at school. His school attendance is markedly improved at 98 to 100%. I am advised that he is moving away from one-to-one support at school. I am further told that his carers are able to meet his needs. As to his wishes and feelings I understand that X would like to return to the area in which he was brought up. X speaks of his current carers with affection. His desire to move is seen as a comment on location rather than the quality of the care he receives in placement. X has said different things to different people about where he would like to be. At times he has expressed the wish to return to his mother’s care. The guardian also tells me that X does not feel that he is being listened to. The guardian feels more effort must be applied to reassure him his wishes are being listened to.”
so, are we saying, the LA are their usual mess, so the children and parent has to suffer for their incompetence?
The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child’s needs the IRO should escalate the issue to ensure the child’s welfare needs are met
Can some one please point me to the statutory guidance?
First is 1991 – http://www.legislation.gov.uk/uksi/1991/895/contents/made
Second gave some amendments in 2004 http://www.legislation.gov.uk/uksi/2004/1419/made
Thanks very much Jerry
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