Actually, this was more of a Triple Threat match, with Judge versus Fostering Panel versus Agency Decision Maker, but you get the general idea.
Re T (A child) 2018 EWCA Civ 650
This is a Court of Appeal decision with Jackson LJ giving the lead judgment.
At final hearing, the LA sought Care Orders and Placement Orders with a plan of adoption. After hearing seven days of evidence, the Judge decided that on balance, the right legal framework for the child was to live with paternal grandmother under a Care Order. Before the orders could be made, however, the Judge needed to establish whether that was legally possible.
That’s because as a result of the way the Children Act 1989 is constructed, a Local Authority can only place a child who is the subject of a Care Order with (a) his or her parents OR (b) with a foster carer approved by the Fostering Panel. Everyone who isn’t a parent has to fit into the second category, which means that the grandmother would need to be approved as a foster carer.
(There is one super obscure third way, which didn’t come up in this case… it takes about two pages of very very very detailed explanation, but the gist of it is that you use section 22C(6) (d), to sanction the placement, which needs approval of the IRO rather than Fostering Panel. Let’s ignore it for now. It’s uber-geeky. )
The Local Authority took their case to Fostering Panel, who unanimously said no
- The panel unanimously resolved not to recommend the grandmother as a connected foster carer. They gave these reasons, which I again quote verbatim:
“(1) The risks and vulnerabilities outweigh strengths to the application.
(2) It is likely that Alan’s needs for emotional stability, sense of positive role modelling of internal family dynamics, safeguarding of contact and sense of identity will be compromised.
(3) Panel members felt the likely risk to Alan’s safety around contact with birth parents and the grandmother’s ability to manage this over the long term.
(4) The grandmother’s lack of insight into the impact of her relationships and family dynamics and discord has on children in her care and her ability to manage this.
(5) The grandmother’s inability to grasp the emotional needs of Alan given his traumatic start to life and future uncertainties.
(6) Concern that the grandmother may not work in partnership with professionals in an open and honest way.
(7) That the following National Minimum Standards for fostering are not met:”
It can be seen that the social workers did not advance the court’s assessment at the panel but instead contested it and gave the panel to understand that they “could not or would not commit to” a care order, which they described as an intrusion.
Then, because this case isn’t already bogged down with ponderous technicalities about how a Local Authority works, the recommendation of the Fostering Panel had to go to the Agency Decision Maker to make the decision. The Agency Decision Maker is a statutory office, a senior member of the Local Authority. That’s because by law, Fostering Panel has to have people who AREN’T in the LA as part of the make-up of the Panel, but also by law, people who AREN’T part of the LA CAN’T make DECISIONS on behalf of the LA. So they make a recommendation and then the Agency Decision Maker decides it.
I didn’t make these rules, I’m just trying to explain them.
Also, the Agency Decision Maker said no.
- On 9 November, the Agency Decision Maker made a decision accepting the panel’s recommendation. She did so by signing the minutes against the pre-entered word ‘Agreed’. Her signature appears at the foot of a box entitled ‘Decision’, which was left empty. The parties received the decision on 10 November, which was a Friday.
On the Monday, still staggering with the effects of shell-shock from that decision, the parties attended Court. None of them had really sketched out their Plan B, understandably. I don’t know whether there was an application to adjourn to take stock or not, but what ultimately happened was that the Judge decided in essence :- I’ve already decided that narrowly, a placement with grandmother under a Care Order is the only alternative to adoption, so if I can’t legally place with grandmother under a Care Order, there is no alternative to adoption, so Care Order and Placement Order.
The Court of Appeal note that they (the Court of Appeal) had more assistance from the advocates as to the legal options than had been given to the Judge at the time.
The first option, obviously, was for the Judge to explore further the Fostering Panel’s recommendation (given that it does not seem obvious that they were properly informed of the Judge’s decision following seven days of evidence and the reasoning), and the Agency Decision Maker’s decision, which did not follow any of the Hofstetter principles
- In Hofstetter v LB Barnet and IRM  EWHC 328 (Admin), Charles J gave guidance on the Agency Decision Maker’s approach in relation to adoption approval. This has been endorsed for use in fostering cases by statutory guidance (The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services at 5.40). It is good discipline and appropriate for decision-makers to:
- list the material taken into account in reaching the decision;
- identify key arguments;
- consider whether they agree with the process and approach of the relevant panel and are satisfied as to its fairness and that the panel has properly addressed the arguments;
- consider whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation;
- identify the reasons given for the relevant recommendation that they do or do not wish to adopt; and
- state (a) the adopted reasons by cross reference or otherwise and (b) any further reasons for their decision.
It was literally a box-ticking exercise rather than that detailed analysis.
So the Court could have explored that further and invited the ADM to attend and to give evidence, with a view to seeing whether the decision could be reconsidered.
The Court could also have explored a range of other legal framework options – although a Care Order might have been viewed as the best option, if it were not available, it wasn’t simply that no option existed and hence adoption had to be the plan. A lesser order, whilst less desireable, had to be properly weighed against adoption. A Special Guardianship Order, Child Arrangements Order, Supervision Order or Interim Care Order (with presumably the Court sanctioning the placement using the Cardiff City Council v A decision of the President that this could be done as an assessment under s38(6) were all possibilities that could be considered.
And of course, the Court of Appeal note, that the Judge could have wheeled out the Enola Gay option of wardship
- Another potentially relevant decision that was not brought to the judge’s attention was Re W and X (Wardship: Relatives Rejected as Foster Carers)  1 FLR 415. In that case, three children were living with their grandparents. The local authority wanted to continue the placement under a care order, but the statutory and regulatory provisions that were then in force meant that if a care order was made, the children would have had to be removed. Hedley J responded by making private law orders, supervision orders and orders in wardship, all with the agreement of the local authority. The case is different on its facts, as the legislation has since been amended to make particular provision for the approval of family foster carers, but it shows that wardship can exceptionally be available to achieve a good outcome where other avenues are blocked.
So the decision to make a Placement Order was overturned and sent back for re-hearing.
- Drawing these matters together, as regards the parents the threshold for intervention was not in doubt, and the conclusion that they could not care for Alan was clear and, in the end, undisputed. The welfare decision as to whether there could be a family placement with the grandmother was in contrast finely balanced. The judge carried out a thorough fact-finding process and a careful welfare evaluation, leading her to the conclusion that this placement was in Alan’s interests, provided that the necessary local authority services were made available. That was her first preference as a way of promoting Alan’s welfare and respecting the Article 8 rights that were engaged. Her preference was not supported by the decision of the local authority’s fostering panel which, on a much more limited set of data, evaluated the grandmother’s ability to care for Alan differently. For her part, the Agency Decision Maker gave no indication of exercising an independent judgement beyond a simple endorsement of the panel’s recommendation.
- Faced with this unfortunate situation, the judge did not press the local authority further. She treated its stance as being beyond the power of the family court to amend and she removed placement with the grandmother from the list of realistic options. She then went on to balance adoption against the (unrealistic) option of long-term fostering before reaching her conclusion.
- It is entirely understandable that the judge wanted to reach a final decision. Alan was by then a child aged 15 months who had been in foster care all his life. The statutory obligation under CA 1989 s.32, requiring the court to timetable the proceedings to conclude within 26 weeks had been repeatedly exceeded and extended. The proceedings had been on foot for 14 months. The judge was demonstrably aware that such extensive delay was seriously disadvantageous for a child of this sensitive age, and of the psychological advantages to him of being able to forge bonds with adopters. However, the extensions of time to conclude the proceedings could only have been granted because the court considered them “necessary to enable the court to resolve the proceedings justly”: s.32(5). To state the obvious, the proceedings could only be concluded if they could be justly concluded.
- In the end, I am in no doubt that, despite the difficulties of the situation, the judge was wrong to make a placement order at the point that she did, for these essential reasons:
- (1) The judge underestimated her powers. She should not have accepted the local authority’s unchanged position without calling it to account for what was on the face of it an unconvincing response to her careful assessment of risk and welfare. This could have been done in a number of ways, as suggested by Ms Seddon, Mrs Hendry and Mr Messling.
(2) It is true that the judge stayed her order to allow for judicial review proceedings, but that amounted to an acknowledgement that the resources of the family court were exhausted, when they were not. In effect, she accepted the submission of the local authority, recorded at paragraph 34 above, that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court. It was.
(3) Even if the point arrived where a decision had to be taken in circumstances where the local authority maintained a refusal to approve the grandmother as a foster carer, it was necessary for the judge to re-evaluate the remaining options for Alan’s future. By not doing this, she effectively boxed herself in. Had she looked at matters afresh, she would inevitably have confronted the fact that this was a child who was being sent for adoption as a direct result of a decision of a non-court body, an outcome unprecedented in modern times so far as I am aware. She would then have been able to weigh that prospect against a range of lesser legal orders (interim care order, private law order, supervision order, injunctions, special guardianship, wardship) in order to arrive at a valid welfare outcome.
(4) The fact that the local authority’s decision arose as a result of a second process (fostering approval) does not alter the general principles that apply. The Agency Decision Maker was not obliged to follow the recommendation of the panel. Nor was the Agency Decision Maker in relation to fostering approval responsible for the case put by the local authority to the court. The judge’s further investigations would have led her to better understand who was ultimately directing the local authority’s thinking and to achieve an effective engagement with them until the issue had been satisfactorily resolved.