The oddest argument about an Interim Care Order

I’ve seen lots and lots of cases about whether or not the Local Authority should have an Interim Care Order and loads about whether interim separation should be granted, but this is the first time I’ve seen a case where the Local Authority ASKED for an Interim Care Order and interim separation, got it, then reunited the child with a family member without consulting with the Guardian or IRO and were arguing with the Court that the child SHOULD be with the mother, just five weeks after securing judicial approval for removal.

What seems to lie at the heart of this is the nationwide difficulty with foster placements – there being a significant disparity between the supply of them and the demand that exists. Most people who do public children work are aware of occasions when placements are sought but not found.

Luton Borough Council v R & Ors [2024] EWFC 52 (13 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/52.html

The case came before MacDonald J, the Circuit Judge who considered the case having been understandably very concerned about the Local Authority’s change of plans for the child and their reluctance to row back on it.

The judgment sets out a lot of the background and issues at ICO stage, whilst of course being mindful that no findings had yet been made on the allegations, they are very succinctly summed up here:-

 the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.

The placement that X was in had broken down shortly after the ICO was made, and the Local Authority were not able to find any alternative foster placements. She was initially placed in a Travelodge with one of her older siblings, that broke down after 2 weeks because the sibling had work committments that could not be resolved, and X’s mother then became the carer – initially at the Travelodge and then at an Air B&B.

The Local Authority were not able to produce documentary evidence of the decision-making around this, nor the decision to place with a parent under the Care Planning Regulations and the matters that need to be satisfied before a Local Authority can do so.

The Head of Service and Operations Manager became involved and the Court was critical of the evidence that they gave, whilst acknowledging that their attendance at Court to give evidence was at quite short notice. They placed reliance on what they asserted to be a robust risk assessment. MacDonald J observes that having read the document it could not be said to be robust, further describing it as cursory and superficial.

The purported risk assessment deals only in the most cursory manner with the allegations of sexual abuse, with a brief summary of the allegations that misses out any account of X’s recent allegations against the paternal grandfather.  In particular, the superficial and incomplete narrative account set out in the purported risk assessment does not deal with the precise nature and extent of the allegations made by X and makes no reference to the views expressed by the mother concerning the source and credibility of those allegations.   The narrative makes no reference at all to the fact that on 31 January 2024 the court was satisfied, pursuant to s.38(2) of the Children Act 1989, that there were reasonable grounds for believing that X had suffered significant harm, that the allocated social worker and the Children’s Guardian were each of the view that the parents were not able to protect X from a risk of sexual abuse, that in those circumstances the local authority had sought the removal of X from the care of her parents or that there was an ongoing police investigation following the arrest of the X’s brother, brother-in-law and paternal grandfather.  Both parents informed the social worker that they have longstanding mental health issues, the mother suffering from chronic depression and anxiety and the father having severe anxiety, panic attacks, hallucinations and paranoia.  These are not dealt with.  The hurried and inadequate narrative is followed by a series of tick boxes that have themselves been inaccurately completed.  Finally, the purported risk assessment that the Head of Service and the Operations Director advanced as the forensic foundation of their conclusion that the mother is now able to protect X from the risk of sexual abuse in the interim contains no analysis whatsoever of the nature and degree of the risk of sexual harm to X or of the extent of the mother’s ability to protect from risk of sexual harm in light of the evidence available. The risk assessment does not deal at all with X’s allegations of physical abuse against her family members, including the mother.  In the foregoing context, the conclusion of the risk assessment is limited to the following, grammatically incorrect, observation:

“Although mother is able to care for X and meet her needs, and is able to keep her safe. The likelihood of X running away, not listening or following instruction, or making other allegations against her mother may be high if X does not get her own way.“

(I’d note here that your day in Court is not going well when the key document that you rely on for your case is described as a ‘purported’ X.)

Things were compounded when it appeared to the Judge that the move from the Travelodge to an Air B and B was an alteration to the interim care plan that was being devised during the course of giving evidence in real-time and that the social worker did not seem to know that the interim care plan had changed and that she should have been rewriting this.

The Court was in a difficult position legally – there are authorities that say that where the Court and Local Authority have a different view of the correct care plan / interim care plan, the Court can and should convey that to the LA and the LA should carefully take account of this and consider whether they accept the invitation to change the plan. But ultimately the general position is that the final power for the Court is to not grant the ICO – that doesn’t help here. (And obviously wardship isn’t an option to secure accommodation by the Local Authority)

The LA here were invited to change their interim care plan and decided not to do so.

This is the judicial analysis of a really desperately difficult situation

50.          In these circumstances, what is a manifestly inadequate and flawed document cannot possibly be said to support the decision making of the Head of Service and the Operations Director or the revisiting by the court of its risk and welfare assessments.  Robust risk assessment in the context of alleged sexual abuse is not derived from vague assertions about families “going on a journey with respect to disclosures of sexual abuse”.  It is derived from the careful, detailed, evidence based social work practice that is articulated in, and has been repeatedly emphasised since, the Cleveland Report and which I summarised in Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 at [599].   The purported risk assessment relied on by the Head of Service and the Operations Director in this case fails to measure up in every respect to that long-established guidance.

51.          The decision of the Head of Service and the Operations Director to place X in the care of her mother in an Airbnb, also has no forensic foundation in any other evidence.  Before deciding to place X in the care of her mother in an Airbnb, r.17 of the Regulation 17 of the Care Planning, Placement and Case Review (England) Regulations 2010 required the local authority to assess the suitability of mother to care for X, including the suitability of the proposed Airbnb accommodation, taking into account the matters set out in Schedule 3 of the Regulations.  The matters defined in Schedule 3 include the mother’s ability to protect X adequately from harm or danger, including from any person who presents a risk of harm to X, and to ensure that the home environment is safe for X.  Whilst the Head of Service asserted that approval for the placement of X with her mother pursuant to r.17 of the Care Planning, Placement and Case Review (England) Regulations 2010 had been given, neither the Head of Service and the Operations Director were able to provide the court with any documentary evidence of this decision having been considered, taken and recorded.

52.          Regulation 17(c) of the of the Care Planning, Placement and Case Review (England) Regulations 2010 further required the local authority to determine whether, in all the circumstances and taking into account the services to be provided by the local authority, the placement would safeguard and promote X’s welfare and meet X’s needs set out in the care plan.  However, once again, neither the Head of Service nor the Operation Director was able to provide the court with an amended interim care plan with respect to X.  Indeed, the care plan for X appeared to evolve during the course of the evidence, and in particular the evidence of the Operations Director.  As I have noted, as at 5 March 2024 the local authority’s position was that it would continue its search for a foster placement for X.  At the outset of this hearing, counsel for the local authority did not suggest that position had changed and nor had the other parties been put on notice of any change of position.  The social worker appeared completely unaware that the interim care plan had changed and the fact that, on the Operations Director’s evidence, she should have been drafting a new care plan. Whilst the Operations Director stated during her evidence that the interim care plan had changed from foster care to placement with the mother as the result of a considered discussion and between her and the Head of Service, I regret that I was left with the distinct impression that the Operations Director had revised the interim care plan during the course of her evidence in order to give the appearance of rationality to a decision making process that had in fact driven by a shortage of resources.

53.          Within the foregoing context, it appeared that the sole argument advanced by the Head of Service and the Operations Director to support their assertion that the mother was now able to protect X from the risk of sexual and physical abuse centred on the improvement in X’s behaviour, and thus to depart from the risk and welfare assessments of the court, was that X’s behaviour had improved in the care of her mother.  In this respect, the Head of Service and the Operations Director each argued that this improvement in behaviour was evidence of the mother’s capacity to protect X from sexual and physical abuse to a greater degree than was the case when the local authority sought the removal of X from her mother’s care.  There are obvious difficulties with that contention. 

54.          There is no robust assessment demonstrating that the genesis of X’s improved behaviour is the result of any improved capacity on the part of the mother to protect her from sexual and physical harm as opposed to, for example, the fact that X is simply happier in the care of her mother than in foster care.  In this context, time and again the Head of Service and the Operations Director mistakenly conflated improvements in X’s behaviour, which have not yet been the subject of formal assessment and may derive from any number of factors, with a reduction in the risk of harm arising from the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.  In the circumstances, I am satisfied that the noted change in X’s behaviour over a short period of time is not a sufficient foundation to depart from the risk and welfare assessments of the court.

CONCLUSION

55.          Alleged sexual abuse is a complex and grave safeguarding issue that demands a careful and precise forensic approach to evidence based risk assessment.  The casual and cavalier approach adopted by the local authority to risk assessment and decision making for X in this case is the antithesis of the correct approach and one which manifestly fails to safeguard X.  On 31 January 2024, this court assessed X to be at risk of sexual and physical abuse and assessed the mother and the father as being unable to protect X from that risk.  In that context, the court further assessed X’s welfare as requiring the removal from her parents’ care.  The local authority has to date placed nothing before the court that justifies those conclusions being revisited.

56.          In the foregoing circumstances, it is the expectation of this court that the local authority will accord the highest respect to the risk assessment and welfare assessment of this court and will now implement the decision made by the court in these proceedings consequent on its assessment of risk and welfare on 31 January 2024.  I shall list the matter for further hearing on 14 March 2024 before Arbuthnot J for the local authority to confirm to the court that this is the course of action that it now intends to take or to seek to persuade the court on proper evidence that the court should now revisit its risk and welfare assessments.  I will make further directions accordingly.

By the time of writing, that hearing before Arbuthnot J should have taken place, and I shall watch out for the decision. I suspect that the phones of the people who find placements for children will have been glowing red hot in the frantic efforts to find a placement, which as I said at the outset is not a problem unique to this Local Authority.