In this case, Cobb J was asked to determine an interesting question. In a set of care proceedings, if the Local Authority were aware of extended family members but the parents didn’t put them forward as carers did the LA have a duty to assess them? And, given father objected to it, did the LA have the power to talk to the family without his consent?
RE H (Care and Adoption : Assessment of wider family) 2019
https://www.bailii.org/ew/cases/EWFC/HCJ/2019/10.html
Set-up
In public law proceedings under Part IV of the Children Act 1989 (‘ CA 1989 ’), social work assessments are commonly undertaken of members of the subject child’s wider family or friends who are proposed as potential carers in the event that the child cannot be safely placed with parents. The issue which arises in this case is whether a local authority is required, by statute or otherwise, to notify wider family members of the existence of the subject child, and/or assess them, when they are not proposed by parents as potential alternative carers, and where the parents (or either of them) specifically do not wish the wider family to be involved.
In the particular case, the child was 5 months old, there had been two previous children removed. The parents were fighting the case and striving to care for the child. There was a long history of parental substance abuse and alcohol abuse and some allegations of domestic violence.
Some of the extended family knew of the child’s existence, some didn’t. None were put forward by the parents as potential carers if the parents were ruled out by the Court.
The LA Agency Decision Maker (who decides whether the LA can put forward a plan of adoption ) wanted to know whether any of the extended family were an option to care for this child.
The father said that none of his family would be in a position to care for the child, and he did not want them burdened with knowing that there was a child when they could do nothing about it.
So the LA wanted to talk to his family to see if any of them could care for the child, father objected to them doing so.
There were a few relevant authorities, but most of them dealt with there not being a duty on the LA in a case where the child is relinquished (given up for adoption) to approach family members or rule them out (although if there’s a genuinely realistic option it ought to be explored). The Court here was being asked to decide whether to extend that principle from agreed adoption to non-consensual adoption cases, or whether different principles applied.
It being a Cobb J judgment, it contains a beautiful and clear analysis of all of the pertinent law and guidance. It is a short judgment, so I recommend reading it.
I’m going to race ahead to the conclusion though.
Firstly, and importantly, Cobb J considered the submissions of all parties that there was an assumption of a duty on a LA to explore family members who were not actively being put forward (where they did not know about the child) and had some doubts that the case law established such a duty.
The submissions of all the parties proceeded upon an assumption that the local authority has a general duty to assess the wider family in these circumstances. In this regard, I was referred to the decision of Theis J in Royal Borough of Greenwich v Adopters [2018] EWFC 87, in which she said this at [11]:
“ What this case has highlighted is the critical importance of a local authority having effective systems in place from an early stage in care proceedings to ensure that the wider maternal/paternal families are considered as possible placement options for the children . Whilst it is recognised that the parents should put forward any names they want to be considered, that does not absolve the local authority of the enquiries they should independently be making . The continued retort by the local authority that the parents had failed to put anyone forward failed to recognise these are parents who failed to provide the basic care for their children or provide basic co-operation within the care proceedings, this local authority should have undertaken their own enquiries . ” (emphasis by underlining added).
16. I do not read Theis J’s comments as establishing, or specifically referring to, any free-standing duty to assess wider family who are unaware of the existence of the child. Indeed, the specific issue arising for determination here caused me to question from where counsel’s assumption about the obligation derives, how far it extends, and what policy or other guidance informs how far it should be applied.
Cobb J looked at a piece of guidance on Initial Viability Assessments, published by the Family Rights Group. (I’ll declare an interest here, as I had a teeny-weeny part in the drafting of this. Honestly, teeny-weeny)
Important guidance published in February 2017 by the Family Rights Group (FRG) (‘ Initial Family & Friends Care Assessment: A Good Practice Guide ’), with endorsement from, among others, the Family Justice Council, Cafcass, Association of Directors of Social services, and the Association of Lawyers for Children, makes this point somewhat more strongly (para.1.1, page 5):
“Where a child cannot remain in the care of their parents, research has consistently found that children placed in kinship care generally do as well, if not better, than children in unrelated foster care, particularly with regard to the stability of the placement. So it is essential that if a child may not be able to live safely with their parents, practitioners identify potential carers from within the child’s network of family and friends and determine whether they will be able to provide safe care to meet the child’s needs until they reach adulthood. ” (emphasis added).
27. The FRG authors speak further of the importance of enabling wider family members to contribute to decision-making, including deciding when the child cannot remain safely with their parents (para.2.2, page 12):
“Where a child cannot live with their parents, it is the duty of local authorities to work in partnership with parents and relatives to identify whether there is anyone within the child’s network of family and friends who can provide the child with safe and appropriate care . Parents may suggest potential alternative carers and some family members may come forward themselves once they become aware there is a possibility that the child may not be able to remain in the parents’ care. In some cases local authorities may be faced with a large number of potential carers. In these situations, it is helpful to ask the parents and family and kinship network to identify a smaller number of carers who they feel would be most appropriate to be assessed to care for the child. Family group conferences are not a legal requirement; however, they are recognised as a valuable process for involving the family early so that the family can provide support to enable the child to remain at home or begin the process of identifying alternative permanence options.” (emphasis by underlining added).
The conclusion
[I am such a sad geek that I was actually on tenterhooks here!]
Conclusion
44. The simple but not unimportant issue raised in this case has given me cause to conduct a reasonably widely-drawn review of statute, guidance and case-law. Drawing the strands of this review together, I have reached the conclusion that I should accede to the application of the local authority. I propose to give the father an opportunity to inform his parents himself of the existence of H. He should be supported in this exercise by a social worker or by the Children’s Guardian, should he ask for it. If he chooses not to notify his family himself, I shall authorise the local authority to do so.
First, repeating a point made earlier (see [22]), none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare .
Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child.
49. In exercising that broad discretion, I would suggest that the following be borne in mind. There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child. There will be cases where cultural or religious considerations may materially impact on the issue of disclosure. There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation. But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent. Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be “fully explored” (see [28]). The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that “cogent and compelling” grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound. This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child’s interests (see Re B (A child) and Re B-S ).
50. As the DfE and FRG and associated guidance makes clear (see [25]-[27] above), good social work practice requires the early identification of family members who may be able to provide safe care to meet the child’s needs, and/or contribute to the decision making in respect of the child where there are child protection or welfare concerns; the FRG rightly refers to a “duty” on local authorities to work in partnership with parents and relatives. It was this exercise which Holman J in Z County Council v R [2001] described when, at p.375 ibid., he referred to the fact that “there should normally be wide consultation with, and consideration of, the extended family; and that should only be dispensed with after due and careful consideration ” (my emphasis by underlining).
The line of ‘relinquished’ baby cases discussed above ([33] et seq .), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth. In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child’s advantage.
So not a duty in the ‘statutory’ sense, but unless there are cogent and compelling reasons to not explore the extended family / due and careful consideration of the reasons not to explore them, the Court should be very careful about proceeding with a plan of adoption. That does seem that it is not as simple as the Local Authority saying “well, the parents didn’t put anyone forward”
The judgment doesn’t really deal with the power the LA has to share information with the wider family (after all, approaching Auntie Beryl to see if she can care for Little Timmy is inherently telling her that there are reasons why mum and dad aren’t able to) and the GDPR aspects. In this case, that’s solved by the Court authorising it, and it may be that this is the best solution – to float that there IS an Auntie Beryl who the LA would want to explore and either seek parental consent to do so or have a direction from the Court.
suesspiciousminds 
Brilliant post. Thank you for this!