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Judge versus Fostering Panel

 

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

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/650.html

 

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. 

  1. 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

  1. In Hofstetter v LB Barnet and IRM [2009] 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:
  2. 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.
  1. Of course none of that was done in the present case.

 

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

 

  1. Another potentially relevant decision that was not brought to the judge’s attention was Re W and X (Wardship: Relatives Rejected as Foster Carers) [2004] 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.

 

Conclusion

  1. 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.
  2. 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.
  3. 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.
  4. 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:
  5. (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.

  1. For these reasons, I agreed that the appeal should be allowed and that the matter should be reheard by a different judge. The rehearing will be limited to a consideration of the grandmother’s position and not involve any reconsideration of the parents as carers.
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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

28 responses

  1. Why does the law always make a simple decision so complicated? Common sense tells me that the Agency Decision Maker believed the fostering panel had carefully considered the background and circumstances of the grandmother and so there was no need for her to re-state their arguments. I accept that the AGM did not follow guidelines of good practice. However, further delay is unfortunate and not in the child’s best interests.

    • Perhaps I’m being unkind, but my impression (which may be unfair) was that the LA went to Fostering Panel wanting the block that they got.

      • Essentially, a choice has to be made between two very different types of family. Both have advantages and disadvantages but predicting whether the child’s development would be better in one or the other is fantastically difficult. The grandmother is a single parent and there are concerns about her lack of insight into the impact of her relationships, family dynamics and family discord on children in her care and her ability to manage this.

        Much social work practice assumes that adoption offers a child a good chance of developing secure attachments to two parents and this is likely to result in the healthy emotional development of the child (though adoption is not without risks). However, it increasingly seems that a large proportion of the population may have been insecurely attached themselves, but are functioning well nevertheless, and would therefore find it difficult to understand the benefits of adoption for a very young child such as this.

      • “there are concerns about her lack of insight into the impact of her relationships, family dynamics and family discord on children in her care and her ability to manage this.”

        i find very few of such and similar statements ever say why with any real evidence, the buzzwords and phrases seem enough, I have demolished such rhetoric easily in a couple of cases for that reason as they were totally empty. Looks good but total BS!

        My impression is not unfair.

      • Dear Hilary, ten percent of adoptions are with single parents. So adoption and kinship care are not distinct in the way you describe. Does that disturb your theory about social work judgements and that people who disagree with social workers prejudices do so because of their own insecure attachments?

      • No, Julie. I realise that fewer people are now applying to adopt but, despite this, it should still be easy to place a very young child with two parents. Also, concerns about kinship care apparently include doubts about whether the father of ‘Alan’ could ever be a positive role model for him.

      • No you are quite wrong. It should never be easy. It should be a last resort. Which is plainly not the case for Alan. It is important to keep up with changes in child care thinking – they are based on evidence.
        .
        .

      • I assume the changes in child care thinking you refer to are these – that less emphasis is now given to the place of attachment in child development and more on respecting the child’s cultural background/identity. In my opinion both are important. It should not be forgotten that Alan has been in foster care since birth and has no experience of living with his birth family.

      • ashamedtobebritish

        Which demonstrates how the current system fails, he has a granny who can take care of him, that’s what Akan needs, but not what the la want.
        Decisions must be based on the best interest of the child for the rest of his natural life, not based on a social workers dislike or bias towards family members

  2. Clearly the judge thought the best place for the child was with granny ! The proper solution would have been to put the child with granny Under a supervision order.The judge should have placed the child with its nearest relative pursuant to the obvious intent of those who drafted the Act even if granny detested social workers ,was no more honest with them than they were with her, and failed to appreciate the imaginary failings in her character that even if true in no way disqualified her for parenthood.

  3. Clearly I don’t know this family. But much research shows how much of the fears about apples and trees are just that, in social workers heads. The vast majority of kinship carers are highly protective of children and dismayed at the hoops they have to jump through to play happy families. I do hope granny’s pockets are deep though, as she may well be punished financially for her generosity.

  4. Thank you for this.
    Just checking whether the child’s name is supposed to be in the extracts of the judgment?

  5. Reblogged this on | truthaholics and commented:
    “(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.

    59. For these reasons, I agreed that the appeal should be allowed and that the matter should be reheard by a different judge. The rehearing will be limited to a consideration of the grandmother’s position and not involve any reconsideration of the parents as carers.”

  6. Pingback: Judge versus Fostering Panel | | truthaholics – seachranaidhe1

  7. ashamedtobebritish

    This is testament of the mess the family courts are.
    The judge should never have had his hands tied by vexatious social workers.
    To date 100% of my cases have started with me asking how it came to this, the parents/family replying ‘the social worker/IRO/chair is biased and really took a dislike to me’ every single day, I hear ‘they’re so corrupt and they just get away with it’ ‘the courts don’t stop them’

    It’s difficult to explain to a grieving family that the judge only has what the foot soldiers submit to him, in order to make judgement. This appeal must surely, bring some sort of closer scrutiny as to ‘how did we get here’? By the judges and the law makers. I have to applaud this judge for asking the question many do not … ‘how did we get here’

    I truly hope this appeal is successful and that agencies and authorities find themselves in court for placing their egos before the welfare of the child, of course it would create case law, but this loophole is unfair on all concerned, child, family, judge, it needs rewriting imo

  8. I have just defeated the L.A.on a 34.4 as a litogant in person.

    This case has been ongoing since Oct 2014.

    I believe that there are issues held within it’s papers that may be of interest especially the refusal of the L.A.to escalate to stage 3 the complaint being overseen by the local MP.

    This is the second time they have refused to act under section 26.

    The moral ethical and legal reasons are questionable as is the recommendation from a therapist that contact should only take place IF NO COMPLAINTS ARE EVER MADE AGAIN.

    Steve

    Steve murphy.

    • ashamedtobebritish

      You’re not alone in this. The court must not accept blackmailing of parents, it’s a cause for appeal.
      Your MP is paid, by you, to work for you.

  9. Being imperfect does not make you a bad parent or foster grandparent, and not getting on with a social worker is no disqualification,is there a law saying you have to get on with a SW? Some SW in LA work are not nice people to deal with (I am being generous) and they seem to think lying is OK should we have standards of character for social workers, should they be removed for not getting on with parents?

    Should the 7 standards of public life apply to SWs?

    I give them all a chance, I have only found two that didn’t fail the decent human being tests of law. And they left the profession because they could not stand it!

    • ashamedtobebritish

      To quote Ed Timpson

      “In the revised Working Together
      to Safeguard Children guidance, which we published on 21 March 2013, the Government made it
      very clear that keeping you all safe from harm and improving your life chances is the responsibility of all professionals who work with you. We have spelt out how teachers, the police, doctors, health visitors, social workers and other professionals working with children and families should work together to achieve this. Also set out is what these different professionals can expect from each other. Most importantly this guidance puts the needs of children and young people at its heart – so the system fits and responds to you and not the other way around.”

      “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

      Mr Justice Hedley in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)

  10. I shall start calling LA Sws the Borg, resistance is futile seem to be a family law maxim

  11. Dearie me – any of you ever sat in on a Fostering Panel? Talked to a Panel member? Looked into the role of Panel? Read the CoramBAAF book “Effective Fostering Panels”? The above suggests not. Panels aren’t court, they aren’t making decisions on custody, or care. They look at a person or couple against a clearly defined and established set of standards that all LA foster carers have to meet. The standards cover caring for children, keeping them safe, working with others, and keeping themselves up to date and involved with the community around the child. Not a lot to ask of a carer really, that they are capable of providing safe, warm, informed care that lets a child grow and thrive and be safe?

    • I am appalled at the disdain for the Fostering Panel shown by the Appeal Court. The Fostering Panel has an important statutory function and in this case it presented a very well-reasoned explanation of its decision to reject the application from the grandmother.

      I also sense disdain for the local authority in this statement: ‘There is nonetheless a feeling of unease at the idea that a local authority can effectively override what the court has decided on a welfare basis having heard and evaluated the evidence.’

      The Appeal Court’s reference to Article 8 Rights is misleading because the judge had correctly decided that the threshold for a Care Order had been met and so what is now being considered is the welfare decision. To throw in the rights of the parents and grandmother at this stage simply muddies the waters.

      • I think that’s really because the LA went to Panel seeking a rejection and didn’t properly appraise the Panel of why the Court had decided grandmother was the right place, and then sought adoption by loophole. The LA had not played with a straight bat, by my reading.

  12. Why should the Court be regarded as the lead expert on the child’s welfare needs? Courts should take into account the views of people with direct knowledge and experience of meeting the complex needs of children in the care system. The LA was right to raise concerns about long-term fostering with grandmother and the judge reluctantly accepted that adoption seemed to be the only realistic alternative. Can anyone come up with any other possibilities?

    • ashamedtobebritish

      Maybe this judge has seen bias and vexatious reporting enough times to realise that granny might not be as terrible as she’s being made out to be. I wish more courts would question how assessments were made and the conclusions that come with them, taking into consideration that the local authority aren’t always truthful about people they have taken a dislike too

  13. It is unfortunate that the focus on the rights of the grandmother has diverted attention away from the rights of the child. The rights of the child and parents may be inter-twined but one aspect of this case that concerns me is the lack of information about the child and his development. He has already reached an age when the process of moving him would need to be carefully planned so that it does not cause him undue distress. The primary focus now should be on his welfare.

    This child needs a secure and loving home where he can stay throughout his childhood. Priority should be given to evaluating the particular qualities the grandmother would bring to caring for Alan and her commitment to this. Adopters undergo screening to see whether they are suitable – but the grandmother does not seem to be facing such as high level of investigation of her capacity to take on the same responsibility. The level of family dysfunction should be recognised and social workers should find out her views about the father’s role in Alan’s upbringing, and possibly the mother’s too, and how she would cope with the everyday stresses of family life in the longer term.

    The local authority has worked constructively with the family and in partnership with family members to explore the various options for the child. During this period the parents of Alan were opposed to a Care Order but were later helped by social workers to accept that the threshold for a Care Order had been met.

    The Agency Decision Maker should not be surprised that her decision has been strongly challenged. However, it is easy to understand why she opposed long-term fostering with the grandmother. There are serious concerns about the ever-rising number of children in care which is now driving a policy shift to reduce the number of children in care. Adoption would have met this policy objective. Furthermore, it is not considered good practice to keep children in long-term care as it is known that this arrangement does not guarantee permanence and security.

    If the grandmother were open to the idea the LA could consider the possibility of placement with the grandmother under a Supervision Order (though this would not be without risks) and let the family operate in the same way as many other families today, with the grandmother being the primary carer of her grandchild.

  14. When you talk of “risks” you forget the recent decision to refuse custody of a baby to the grandmother and have it adopted by two gay boys instead.The result being that the baby was beaten up and murdered by one of them !
    The “risks” of adoption or fostering by strangers are never compared with those of staying with parents that for some unfathomable reason detest social workers and cannot work with them when their open and declared aim is to remove the children !

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