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Delays inflicted by other public bodies

 

Much as Patrick Swayze and his gang wearing masks and brandishing shooters might proclaim when busting into a bank dragging a hapless Johnny Utah in their wake, “We are the Ex-Presidents” this is a judgment from the Ex-President.  (He was still the President at the time of the judgment)

 

You know, for a hippy Buddhist surfer, you sure do own a lot of firearms, Bodhi

 

Re H (Children) 2018

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/61.html

 

Our former President is good at a punchy opening. He doesn’t do enough pop-culture references for my own idiosyncratic tastes, but punchy nonetheless

 

1.In this care case, which came before me at Newcastle on 12 July 2018 pursuant to an order made by His Honour Judge Simon Wood on 19 June 2018, the mother’s position statement, prepared on her behalf by Mr Dorian Day, began with these arresting words: “These proceedings are entering Week 109.”

 

The case involved an alleged deliberate injury to a girl, aged five weeks, who in April 2016 was admitted to hospital with very serious life-threatening injuries. The Local Authority issued proceedings in May 2016. By November, so within 26 weeks, the Court had held a finding of fact hearing and found that (a) the injuries had been inflicted by the father and (b) there was no fault or blame attributed to the mother who knew nothing about it.

Both parents had been charged by the police. The direction of travel in the case ought to have been a rehabilitation to the care of the mother  (assuming that the parents would separate and this would be sustained – the judgment isn’t explicit about that, but it is a reasonable inference).

However, the police and CPS were adamant that the criminal charges on both mother and father would stand and go before a jury. They were invited to change the bail conditions (that were restricting mother’s ability to be with the girl and the older brother of the girl) on several occasions and refused to do so.

 

 

The criminal trial was delayed and took place in October 2017, nearly a year after the mother had been exonerated by the family Court. The Crown Court judge directed the jury to return a verdict of not guilty on the mother, which they did. The jury retired to consider their verdict on the father and delivered a verdict of not guilty.

 

 

5.The effect of the protracted criminal proceedings was not merely that the best part of a year had been lost since Judge Wood’s fact finding judgment. There were three other consequences:

 

 

 

  1. i) First, the mother’s bail conditions seriously hindered the necessary process of assessing the mother’s capacity to look after both children, one of whom, unhappily, has significant ongoing disabilities and extremely complex needs. I am told that, despite this, applications to vary her bail conditions were opposed by the prosecution and refused by the Crown Court.

 

  1. ii) Secondly, the mother lost her accommodation.

 

iii) Thirdly, the entire process subjected both the mother and the wider family to very considerable stress.

 

It is unsurprising that Mr Day, on her behalf, goes on in his position statement to say that the delay has exasperated the mother, the social work team, the children’s guardian and at times the court, and has also contributed to family tensions

 

As a result of those problems, a brand new problem arose, which was finding some accommodation for the mother and children to live in. The girl had special needs as a result of her injuries, and therefore had specific requirements for her accommodation.

 

 

6… Despite much endeavour on the part of the local authority, it was not until the last week in May 2018 that what turned out to be a suitable property was found. It was in that state of play that Judge Wood, who had earlier voiced his concerns at a directions hearing on 23 April 2018, at a further hearing on 19 June 2018 made the order to which I have already referred.

 

 

7.As I have said, the hearing before me which Judge Wood had directed was fixed for 12 July 2018. By the week commencing 2 July 2018 there was reason to believe that the property which had been identified in May would be both suitable (subject to certain work being done) and available for the mother and her children. On 10 July 2018, two days before the hearing, the mother was given the keys to the property.

 

 

8.In these circumstances, the primary purpose of the hearing before me had fallen away. Indeed, the parties were agreed that no directions were needed in relation to the accommodation issue. I directed that the final hearing of the care proceedings be listed before Judge Wood on 13 August 2018. My order recited that the local authority “wishes to do everything possible to support [the mother] in moving into her new home.” It was common ground that various works required to be done to the property, including the installation of a lift. My order went on to record the local authority’s indication that the installation of the lift would take approximately four months, and my “hope … that the lift … could be installed by the next hearing.”

 

 

9.I made an order that the local authority was to serve, by 17 July 2018, “an action plan in a tabular format setting out explicitly the timeline for works to be carried out in order to allow the plan of rehabilitation to commence at mother’s new property.” The action plan, dated 17 July 2018 and displaying an appropriate sense of urgency, spelt out with commendable precision, in tabular form under the headings “Objective/Task”, “Responsibility (name and job role)”, “Start Date” and “Completion Date”, a comprehensive list of all the works required to be done to the property, including but not limited to the installation of the lift, and of the furniture (some specialist) and equipment to be provided for the mother and the children.

 

 

10.To bring that part of the story to its conclusion, on 14 August 2018, Judge Wood made a supervision order, as proposed by the local authority and supported by both parents, thereby bringing the care proceedings finally to an end in week 116.

 

However,

 

 

 

11.In a position statement and more particularly in a detailed and carefully argued skeleton argument circulated to the other advocates on the morning of an advocates’ meeting on 9 July 2018, Mr Day raised a wider issue. Although by then it seemed that the accommodation issue was well on the way to being resolved, Mr Day indicated that he wished to retain the hearing before me for a rather different purpose, namely to “look at the wider ramifications of delay in proceedings in the family court” and, specifically, to address two questions:

 

 

 

  1. i) What can the family court do to avoid delay which is engendered by concurrent criminal proceedings?

 

  1. ii) What can the family court do when the delay to proceedings is engendered by the acts and omissions of other government departments or agencies?

 

Referring to the present case, he asserted that “Progress to permit a child to come home to a mother has been paralysed by the unnecessary and disproportionate delay and approach in the criminal proceedings”, compounded by the fact that there has been “very slow progress by the relevant housing authority to find a property for the mother that is suitable for [her daughter].” The delay here, he says, has thus been caused by factors external to the care proceedings.

 

As one would expect from the Ex-President, the judgment contains a careful and thorough analysis of all of the case law and the legal principles as to the extent to which the Family Court can seek to influence or control the actions of public authorities (over and above the influence and control that they may have over the social work department of the Local Authority bringing the care proceedings)

 

 

 

 

20.The starting point is the fundamental point of principle articulated and elaborated in a well-known series of cases in the House of Lords and, more recently, the Supreme Court: A v Liverpool City Council [1982] AC 363, In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, and, most recently, N v A Clinical Commissioning Group and others [2017] UKSC 22, [2017] AC 549 (dismissing the appeal from the decision of the Court of Appeal in In re N (An Adult) (Court of Protection: Jurisdiction) [2015] EWCA Civ 411, [2016] Fam 87). That principle, as explained by Lord Scarman in A v Liverpool City Council, is that:

 

 

 

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority.”

21.Authorities which there is no need for me to refer to (see my judgment in In re N, para 19) demonstrate the application of this principle in many contexts where a family court is involved, for example, where the child or the parents are subject to immigration control, where the child or the parents are the subject of a police investigation or criminal proceedings, or where there is dispute as to the provision of statutory services by other agencies, for example, in the provision of health care by the NHS or the provision of social housing by a local authority.

 

 

22.For present purposes, this fundamental principle has two corollaries. First, that a family court cannot dictate to another court or agency how that court or agency is to exercise its powers. It follows, secondly, that, absent statutory provision to the contrary, the ambit of family court judicial decision-making is constrained by the extent of the resources made available by other public bodies. So, the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. How far can persuasion go? The answer is that the family court can seek to persuade but must not apply pressure: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, paras 38-39 (Baroness Hale of Richmond).

 

 

23.I have referred to a family court. I emphasise, what is quite clear on the authorities, that, in this respect, exactly the same principles apply whether the case is in the Family Court or the Family Division of the High Court (or, for that matter, in the Court of Protection), and whether it is a private or a public law case. The High Court has no greater powers in this respect than the Family Court, even if the child is a ward of court: see In re N, paras 13, 14.

 

 

24.How then, while remaining loyal to these principles, is a family court to engage with another court or agency which is also involved in the family’s life. This, as it happens, is an issue I had to address almost exactly ten years ago in Re M and N (Parallel Family and Immigration Proceedings) [2008] EWHC 2281 (Fam), [2008] 2 FLR 2030. I said this (para 31):

 

 

 

“In all such situations the family court will need the fullest and most up-to-date information. And where the outcome is dependent upon or is likely to be affected by the decision of some third party, whether, for example, a local authority housing department, the Secretary of State for the Home Department, the Crown Prosecution Service, or a NHS Primary Care Trust, or whoever, the family court will also need the fullest and most up-to-date information as to where exactly that decision-making process has got to, what the decision is, if it has been given, or when it is expected if it is still awaited. Consideration will also need to be given – and at the earliest possible stage – as to whether and if so how that third party decision maker should be brought into some appropriate form of direct engagement with the family proceedings.”

25.It will be noticed that in Re M and N I referred (paras 6, 30) to the then recent decision of the Court of Appeal in Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2007] EWCA Civ 970, [2008] 1 FLR 1061. The decision of the Court of Appeal was subsequently reversed by the House of Lords: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413.

 

 

26.For present purposes what is important is what Lord Hoffmann (para 17):

 

 

 

“In my opinion the Court of Appeal was wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It will obviously be helpful to a court, in dealing with the question of where the children should reside, to know what accommodation, if any, the housing authority is likely to provide. It should not make a shared residence order unless it appears reasonably likely that both parties will have accommodation in which the children can reside. But the provision of such accommodation is outside the control of the court. It has no power to decide whether the reasons why the housing authority declines to provide such accommodation are good or bad. That is a matter for the housing authority and, if necessary, the county court on appeal. Likewise, it is relevant for the housing authority to know that the court considers that the children should reside with both parents. But the housing authority is not concerned to argue that the court should not make an order to this effect. The order, if made, will only be part of the material which the housing authority takes into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.”

 

In saying this, Lord Hoffman was, in substance, adopting exactly the same approach as the one he had explained in the Court of Appeal in R v Secretary of State for Home Department ex parte T [1995] 1 FLR 293, a case involving the interface between family and immigration proceedings.

27.Nothing in what Lord Hoffmann said affects, in my judgment, either the general thrust or most of the detail of what I said in Re M and N. Given the decision of the House of Lords, what I said in Re M and N at para 30 is best ignored; but this does not affect the continuing validity of what I said (para 31) in the passage quoted above.

 

 

It had been suggested in this case that witness summons be issued to compel the key decision-makers in the criminal proceedings and housing department to come to Court and account for their actions, perhaps even be cross-examined.

 

 

 

 

28.In this context, the question is what, to use my terminology, is an “appropriate form of direct engagement with the family proceedings” for the third party decision maker? In relation to this, Lord Hoffmann’s observations are of great importance: the third party decision maker should not be made an intervenor in the family proceedings and should not be required to “argue” its case.

 

 

29.On the other hand, the family court can properly seek from the third party decision maker information – information both as to what has happened and as to what it is anticipated will or may happen – and, where necessary, documents. Moreover, if this is necessary to enable the family court to perform its task and to come to a decision on the matter before it, the family court can legitimately ask the third party decision maker to explain why it has come to its decision and, if this is necessary for the family court properly to understand the decision, to probe the proffered explanation, if need be by asking searching questions. What, in contrast, the family court cannot legitimately do, is to require the third party decision maker to justify its decision, let alone with a view to putting it under pressure to change its decision.

 

[To use an analogy, the Family Court could ask Madonna to EXPLAIN why she chose to make the film Swept Away, but she doesn’t have to JUSTIFY her love – just as Jay-Z doesn’t have to justify his thug.]

 

30.Where, in any particular case, one draws the line between explanation and justification may be difficult; but the principle is clear. It is not for a family court to require a third party decision maker to justify its decision; that is a matter, if at all, for the Administrative Court exercising its powers of judicial review. And, as I pointed out in In re N, para 82,

 

 

 

“it is not a proper function of … the family court or the Family Division … to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court.”

31.It is also clear that the family court can, if this is necessary to enable it to dispose of the proceedings before it justly and fairly, make an order requiring the third party decision maker, or an individual specified by the family court for the purpose, to disclose relevant documents or to give evidence (see further, paragraph 38 below). The jurisdiction to make such an order is quite plainly conferred by section 31G of the Matrimonial and Family Proceedings Act 1984, to which Mr Day referred me, and there is nothing, whether in section 31G itself, or in the provisions of the Family Procedure Rules, or in the case-law or in principle, to exonerate the police, the CPS or any other public agency or authority from the reach of section 31G. Section 31G goes to the power of the court to make an order for the disclosure of documents or the giving of evidence; it does not, I emphasise, empower the court to disregard the principle that although the court can demand an explanation it cannot require the third party to justify its decision.

 

 

32.It follows from the principle in A v Liverpool City Council that a family court cannot dictate the contents of its care plan to a local authority: see In re N, paras 34-36:

 

 

 

“34 It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see In re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor … does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.

 

35 That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see In re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.

 

36 In an appropriate case the court can and must “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking”: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563, para 29. Rigorous probing, searching questions and persuasion are permissible; pressure is not.”

33.Not infrequently, an important component of the appropriate care plan will be input from – services to be provided by – another public authority, for example, health care to be provided by the NHS as part of a holistic care plan, or social housing to be provided by another local authority. In such a case the family court can engage with the third party decision maker both indirectly and/or directly: indirectly, by requiring the local authority, as part of its consideration or reconsideration of its care plan, to discuss and negotiate with the third party; directly by the court making orders against the third party of the kind referred to in paragraphs 29, 31, above.

 

 

The Court went on to consider the position of orders for police disclosure that were not being followed. It ought to go without saying that the police should obey such Court orders, but it clearly doesn’t in all cases, and thus having this chapter and verse is handy

 

 

 

 

38.Part A, para 7, provides in terms for the making by the family court of orders for disclosure against the police and/or the CPS. Para 7.4 states that:

 

 

 

“The police and the CPS will comply with any court order.”

39.It might be thought that this statement is otiose, for it is, after all, as Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

 

 

“… the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

40.In Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 FLR 1266, para 51, I referred to:

 

 

 

“the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.”

 

I went on:

 

“There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders.”

 

I added (para 54):

 

“Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority.”

 

The same, it ought to be needless to say, obviously applies also where the order is directed to the police.

41.I make no apologies if I seem to be labouring a point which ought to require no emphasis. However, I was recently confronted, in a care case that came before me on circuit, with a letter, written by the legal department of a police force one really might have thought would have known better, which, responding to an order made by a Circuit Judge sitting in the Family Court for disclosure by the police of certain documents, sought to explain why it was proposed by the police not to comply with this “request” (as it was described) because, in the view of the writer, it was inappropriate. Without having thought it necessary to require the hapless writer of this astonishing missive to be brought to court to provide an explanation, it would not be fair to assume that this was impertinence or defiance rather than simple ignorance and incompetence; but either way it is deeply troubling that any police force can have thought that this was an appropriate response to an order of the court, even if it was a family and not a criminal court.

 

 

42.The point is very simple: if a public authority to whom an order is directed by a family court wishes to challenge the order rather than comply with it, the authority must, and, moreover, before the time for compliance has expired, either appeal the order or if, as will often be the case, the order was made without notice to and in the absence of the authority, apply to the court which made the order for it be discharged or varied. Otherwise, the authority may find itself on the wrong end of proceedings for contempt of court.

 

 

 

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Extension of the proceedings for 6 months

 

I have to say that when I first read Re P (A child) 2018  I thought it was of limited interest and value and incredibly fact-specific, but I am aware that this is not how it is being viewed by some, and therefore felt it might warrant a blog post.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1483.html

 

This is a Court of Appeal decision from an original decision from Her Honour Judge Probyn (who used to sit in my local area, and whom I like)

 

At the time of the final hearing, the child was 7 months old.  There were two older children who had been removed as a result of mother’s alcoholism and findings that the mother had told significant lies during those proceedings.

 

The mother, who had been a long-standing alcoholic, was seeking an extension of the proceedings for six months.  HHJ Probyn refused that and made a Placement Order,  mother appealed.  It is a very unusual set of facts, in that by the time of the final hearing, the mother had been abstinent for 13 months  (i.e she had got dry when she learned of the pregnancy and was still dry at the time of the final hearing.  The expert in the case had spoken about having a reasonable degree of confidence that abstinence could endure after an 18 month period (which is not that uncommon, and hence why mother was seeking a further 6 months to show that she could continue to maintain abstinence)

 

My immediate ball-park feeling is that the right outcome in the care proceedings would have been to make a Supervision Order, with further testing, and the case to be brought back to Court if mother relapsed, rather than continue with ICOs for a further 6 months.  I can’t think of a case I’ve ever had where a parent had 13 months of abstinence where a plan of adoption would have been granted.

 

(Hence my original view that the case was so fact-specific that it would be of no wider value)

 

By the time the appeal was heard, the 6 months had passed (of course) and mother had maintained her abstinence, so the appeal was always likely to succeed (and appealing on ‘give me more time’ became rather nugatory).

In terms of the adjournment

  1. For the purposes of considering whether or not the mother could make the necessary changes within the child’s timescale, the period in question is a delay of six months in relation to a baby of seven months of age.
  2. The courts are often faced with cases where the judge is told that some sort of therapy may result in a mother being able to parent her child, which therapy has not yet begun and will take an indeterminate period, often 18 months to 3 years. I accept that in such a case a plea for ‘more time’ by a mother serves no purpose but to put off the inevitable, to the detriment of the child in question.
  3. This court was faced with a very different situation. Not only had the mother been abstinent for 13 months but, in contrast to her earlier period of abstinence, she was, even on the local authority’s own case, now energetically cooperating with the follow-up. More importantly, there was an a new, and genuine, acceptance by her and insight on her part into both her alcoholism and its impact upon her child’s welfare.
  4. This proposed adjournment therefore not only tests out the mother’s ability to remain sober for the further six months, but also to judge her continued commitment to AA and the specialist rehabilitation service and to see whether the personality stability which had come with sobriety would be maintained. Most importantly from the local authority’s point of view, the adjournment would give the local authority and Dr Hallstrom an opportunity to see if the developing insight shown by the mother was capable of developing into an honest working relationship with the local authority such that, in the event that the mother has a “setback”, (which is by no means to be ruled out) she could be trusted to seek help in the interests of L.
  5. In my judgment there was a clear purpose in the adjournment, namely whether, within L’s reasonable timescales, the mother could capitalise on the considerable progress she had made such as to allow L to live with her mother. The outcome at the end of a further six months was not as the judge believed, inevitable and I am satisfied that, on the evidence before the court, there was a sufficient prospect of the court being in a position to decide that L could be safely placed with her mother to justify the adjournment.

 

The Court of Appeal considered that given the progress mother had made, a Placement Order was not the right order.

 

  1. That therefore leaves the question (Question 3) as to whether there was a “solid” evidence based reason to believe that the parent would be able to make the necessary changes within L’s timescale. It goes without saying that one “necessary change” would be the ability of the mother to satisfy the court that the combination of sobriety and further insight would allow the court to be satisfied that the risk to L, in the event that the mother has a relapse is manageable, and that the mother would be honest with the local authority and in such circumstances seek help at the earliest possible opportunity. In my judgment there is indeed ‘some solid evidence based reason to believe that the mother will be able to make the necessary changes within the child’s time scale”.
  1. In my judgment, had the judge, even in a couple of paragraphs, once she had rejected the application for an adjournment, gone on to consider all circumstances of the case by reference to the law in relation to placement orders that she had so carefully set out earlier in her judgment, she may well have hesitated again before concluding that L’s welfare “required” the severing of her relationship with her mother without more ado.
  2. I for my part, whilst fully accepting the legitimate concerns and doubts expressed by the local authority and the Children’s Guardian, cannot see how at that stage, L’s welfare required the breaking off of all L’s ties to her mother and full sister and in my judgment, the making of a placement order was a disproportionate outcome in all the circumstances of the case.

 

The wider point is made by the Court of Appeal at the end, being critical that the LA went ahead and reduced contact from four times per week to once per month and ended their support and assessment – the Court of Appeal suggest that once permission to appeal had been granted, the LA would have been wiser to have been active in the case and engaged with the mother.

 

  1. In conclusion, I note that by the time the appeal came on last week, the six month period sought by the mother had been and gone. The mother has remained sober throughout. The local authority, as already noted, has provided no support to the mother in the interim period and more particularly has not carried out any form of updating assessment of her because, Ms Connell told the court, their case remains that the mother cannot be trusted to be open and honest and the risk to L in the event of a relapse is therefore too great to allow them to reconsider their position, even now. They have, they said, shown good faith in reducing contact from four times a week to once a week rather than once a month which had been their original plan pending placement.
  2. I hope that the local authority may, on reflection, regret that approach and on reviewing the case conclude that in the interests of L, once Moylan LJ had granted permission to appeal, the better way would have been once again to have become active in the case, and to have engaged with the mother in order to see whether, their worst fears about the mother continued to be justified such that in the best interests of L the last resort of adoption remained the only option.

 

 

Now, I shall come to the passages which are attracting some attention beyond the very fact-specific elements of this case. It is obviously unusual to seek a 6 month extension to care proceedings, particularly post the Children and Families Act 2014   (I still think making a Supervision Order was the right approach, rather than adjourning for 6 months), but there are passages here dealing with that, and which some might suggest have broad applicabililty.   (I think not, but we shall watch and see)

 

  1. It is undoubtedly the case that all this was very recent, but it is important to note that the judge did not find that the mother was simply saying what the judge wanted to hear. The judge [107] accepted that the mother was showing insight and that there were ‘green shoots’. One can quite see that had the only options facing the judge been immediate rehabilitation or a placement order, then she may well have been driven to conclude that it was too little too late. It is however hard to see how, given that sobriety and honesty are inevitably intrinsically woven in together, a period of six months would have done other than to allow the local authority and Dr Hallstrom not only to see if she remained sober, but also whether the “green shoots “and developing insight could now lead to the sort of working relationship, co-operation, and therefore trust, that the local authority rightly regard as essential if the risk of a future relapse is properly to be managed.
  2. In my judgment the appellant is correct in her submission that whilst the history is of considerable importance, too much emphasis was placed on the historic lies to the extent that the judge seemed to regard this feature alone as determinative of the case. There was, as a consequence, a failure properly to set those undoubted and serious concerns against the genuine and significant progress made by the mother. If this progress was maintained the mother’s likely future level of honesty could be assessed in the context of sobriety and with a developing understanding and insight as against her historic drunkenness and lack of insight.
  3. Similarly in [111] the judge factored in, without more:
  4. (i) the “risk of serious emotional and physical harm to L,” but the risk of emotional and physical harm would only arise in the event that L was rehabilitated to the mother. It was therefore not a factor at this stage, namely the consideration of the application to adjourn, but would become important only at final care order and placement order stage.

(ii) the “risk of further damage to her attachment needs” The evidence in relation to attachment is recorded by the judge in her judgment at [91] namely that:

“…L is a baby of some six months and who over the coming months will be at a crucial stage in terms of her attachment development”

  1. Contrary to the judge’s judgment, there was no evidence that L had suffered attachment damage. On the contrary, the Children’s Guardian had observed L to be well attached to the foster carer and therefore able to make secure attachments in the future. Whilst delay is always inimical to a child’s interests, there is nothing in L’s history or life experiences to date to suggest that her position is any different to any other child of 6 months. The sooner L (in common with all children in her position) is settled with a permanent primary carer the better. However, the generally accepted critical period for forming long term secure attachments would not have been be fatally compromised in L’s case to such that delay had, in her interests to be, to all intents and purposes, the determining factor. This was particularly so in circumstances where it was common ground that adopters could be identified quickly following the making of a placement order (and indeed following the making of the placement order now challenged, prospective adopters were identified within a matter of weeks).
  2. In weighing up the issue of attachment the judge in my judgment fell into error in that she did not mention the fact that the mother was having good quality contact 4 times a week, or to the high praise given to her by L’s very experienced foster carer, evidence in my judgment of considerable significance when considering L’s timescales and that the alternative was adoption

 

There is some school of thought that paragraph 47 opens the door wide for extensions of care proceedings beyond 26 weeks when dealing with an infant, because unless there is specific evidence of attachment problems, the crucial window of attachment development is not fatally compromised by extending proceedings.  And thus, delay arguments are greatly diminished.

 

I instead read that to be  that when balancing the two factors, in this fact specific case of a mother who had been abstinent for 13 months, a delay of 6 months was better for this child and a realistic option to be preferred to the most dramatic and permanent order of adoption. Delay in this case was not and should not have been the determining factor. I don’t think that Re P bears that weight that some might put upon it , that it is carte blanche for extensions of proceedings if the child is under 1 and showing no attachment damage. Both of the Acts still stand. Delay generally is harmful to children and must be justified and extensions beyond 26 weeks must only take place if to resolve the proceedings justly.

 

Expect, however, to see Re P wending its way into skeletons and position statements, and there being yet more boilerplate passages in judgments.

 

(I hope I’ve made it plain that my view is that Placement Order was not the right order in this case – I just don’t think paragraph 47 can be lifted wholesale into other cases where the facts are so different.  It clearly has very direct application to a case where a parent has a substantial period of abstinence under their belt pre-dating the proceedings and it is being argued that because more time is needed to be sure the abstinence will last the child should not wait.

 

 

 

Making Special Guardianship Order before child has lived with prospective carers

This Court of Appeal decision raises a number of interesting and important issues.

(It doesn’t have anything amusing in it or any 80s references, but you can’t have it all.  If you want, you can momentarily imagine that this is some litigation involving Barry Chuckle and Jimmy Krankie having a dispute as to who gets custody of a tiny hedgehog in a hat and that the key pieces of evidence involve (i) Jean Claude Van Damme doing the splits in the witness box (ii) how many ferrets Fred Dineage can pop down his trousers and (iii) the enduring mystery of exactly how much smack Zammo Maguire hoped to obtain by stealing and pawning Roland Browning’s alarm clock, thus making Roland late for an exam.  It  has none of this.  I remain on the lookout for such a case)

 

P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1407.html

 

Essentially, the Court at first instance, was invited by the LA and the Guardian to make Special Guardianship Orders to grandparents for two children – S aged 2 and P aged 5. The parents were seeking the return of the children to their care – it had been a FDAC (Family Drug and Alcohol Court) case and the parents had withdrawn from that process – the judgment does not deal much with the parents case, as it was not the subject of the appeal.

 

[The parents had withdrawn from the Court process, thus at final hearing it was only the Local Authority and the Guardian playing an active part, both of whom supported the making of SGOs]

 

The Court declined to make Special Guardianship Orders, in part relying on a letter circulated by Keehan J to Judges on the Midlands Circuit to the effect that

“a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.”

 

The Court instead made a full Care Order – in effect deciding that the Local Authority, in consultation with the grandparents, should decide the point at which the case should come back before the Court with an application for a Special Guardianship Order. That also, in effect, envisaged the Care Order being a short-term order, rather than the permanent or long-term order that it is commonly viewed as.

 

The Court of Appeal judgment deals with a number of issues :-

 

  1. The need for solid evidence-based research about whether SGOs being made before a trial placement are a beneficial or adverse approach
  2. The status of the guidance given by Keehan J – and the representations made to the effect that it was being followed by the Courts in the Midlands circuit as though it were binding upon them
  3. What role prospective Special Guardians should play in the Court process
  4. What approach the Court should take, where potential suitable carers come forward late in the process.

 

All of this is useful.

 

 

 

  1. There are three strands to the errors that all represented parties before this court identify in the family court’s decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S’s father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.

 

 

 

  1. The propositions about which there is a large measure of agreement are as follows:

 

 

 

 

  1. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;

 

  1. b. The judge’s characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;

 

  1. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;

 

  1. The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.

 

  1. It is helpful to trace the judge’s reasoning by setting out how he came to his conclusion in his judgment. The following extracts are sufficient:

 

 

 

 

 

“1….It is not a case in which I must consider rival realistic options in terms of the children’s future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children’s respective paternal grandparents……

 

 

7.…the local authority and the Guardian contend that the children’s placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….

 

 

  1. In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are “satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”…….

 

 

  1. Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.

 

 

  1. There is also a power for a court to make a special guardianship order of the court’s own motion. That power is found at section 14A(6)(b).

 

 

  1. ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.

 

 

  1. Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression ‘in due course’ I mean ‘when the new placements are regarded as settled and working well for the children’. In this case that might perhaps be in about a year from now…….

 

 

  1. ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……

 

 

  1. My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit’s Local Family Justice Boards, was that “a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.” Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……

 

 

  1. All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents’ reaction will be to the children’s move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……

 

 

  1. 30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children’s lives – then the grandparents would have been parties, represented, present and witnesses……

 

 

31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.

 

 

  1. I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.

 

 

  1. A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.

 

 

  1. ……There would remain untested placements.

 

 

  1. ……the Guardian…….emphasised that “there was enough of a relationship that it is not an impediment to a special guardianship order…….”

 

 

The Court of Appeal considered this carefully

 

 

 

16.It is evident that the judge recognised that the only realistic placement options that he had were with the paternal grandparents. His concern was the viability of those placements: not because they were unassessed but because they were untested in the specific context of the possible interference with them by the children’s mother and the father of S. It was in that context that on the merits the judge wanted to be assured that the control and parental responsibility which vests in special guardians would be sufficient to manage the relationship with the parents. The alternative was control and parental responsibility being vested in the local authority through care orders. The problem to be solved was whether the relationships and capabilities of the grandparents were strong enough or needed to be supported and tested before SGOs were made.

 

 

 

  1. The solution to the problem was in the choice of order: SGO, care order or interim care order and an adjournment. The route to the solution lay in an evaluation of the evidence including oral evidence from professional witnesses, the parents and the proposed carers i.e. the paternal grandparents. It is clear from the judgment and from a transcript of the judge’s discussions with the advocates during the hearing that the judge had the problem and the solutions in mind. What was missing was a route to the preferred solution. Having identified the problem and the range of solutions the judge did not go on to evaluate that evidence. That necessarily meant that the propositions advanced in the discussion and the conclusions reached in the judgment take the form of assumptions that were not reasoned and which are now challenged.

 

 

 

 

 

 

  1. As I remarked at [16] and [17] it was the absence of any testing of the assumptions raised in discussion which created the problem with which this court now has to grapple. The judge was concerned about the relationship between the grandparents and each of the children in the context of continuing discord with the mother and the father of S. It is also right to note that it was not until the commencement of the appeal before this court that the special guardianship support plans were agreed between the local authority and the grandparents. The judge identified what were potentially adverse factors to balance against the positive factors in the special guardianship assessments which might lead to the conclusion that a trial placement of the children was required before vesting parental responsibility and control in the grandparents. That deserved more than a cursory analysis not least because the local authority and the children’s guardian had come to a clear and agreed contrary opinion on the basis of rigorous assessment material that apparently demonstrated that the positives outweighed the negatives.

 

 

 

  1. In order to test the assumptions the judge had described in his discussion with the advocates, he could have heard evidence about them and from that drawn conclusions. The judge records in his judgment that he heard some oral evidence but it is plain from his judgment that such evidence as there was either did not touch on the issues that he was raising or was unhelpful. That may be unsurprising given that the local authority and the children’s guardian disagreed with the judge and were agreed among themselves and also that no advocate was pursuing the issues the judge wanted to pursue. In that circumstance, as inquisitorial tribunals know, there must be an enhanced caution in a judge not to ‘simply’ rely on his or her own pre-conceptions or opinions and to ensure that as provisional conclusions are formed in judgment they are adequately tested so that they are soundly based on evidential conclusions.

 

 

 

  1. It would also have been legitimate, if properly reasoned, for the judge to conclude that he needed more evidence with the consequence that the time for the proceedings might need to have been extended. In order to come to either conclusion the judge needed to identify the risk that he sought to protect the children against and reason the options that were open to him on the evidence. He ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and by hearing evidence from the paternal grandparents. He would have been assisted by evidence from the mother and the father of S but, as has sadly been the case more than once in these proceedings, they had absented themselves and the judge was left with a history from which only inferences could be drawn. Had the judge reasoned his concerns on the evidence he would have had a proper basis for conducting an evaluation of the benefits and detriments of each order that was available to him.

 

 

 

  1. In that context, it is not surprising that the judge’s evaluation of the merits of each option and the available orders was incomplete. The judge agreed with the parties that a child arrangements order was not in the interests of either child and he was right to do so on the merits. No-one pursues that option before this court. That left SGOs, full care orders and interim care orders with an adjournment.

 

 

 

  1. I agree with the paternal grandparents of S that if and in so far as the judge needed more time to ensure that the relationship of the grandparents with the child and the parents was such that it was in the interests of each child to make an SGO, that could, if reasoned, have been an appropriate basis upon which to adjourn the proceedings

 

 

 

Building Redbridge to your heart

 

 

Readers may remember the London Borough of Redbridge getting a hard time recently in this case

https://suesspiciousminds.com/2016/10/25/like-redbridge-under-troubled-water-a-local-authority-takes-a-kicking-case/

 

And you might remember that the case hadn’t finished there –  MacDonald J had effectively put the Local Authority in special measures, with them having to write to him each and every week to say if the case was still on track to an adjourned final hearing.  So this is the judgment from the final hearing, and if Redbridge’s bruises were healing up, they just got some new ones.

 

But first, here’s  photo of a muppet.   (this is foreshadowing, y’all… )

 

No, it's not Honey G out of X-Factor

No, it’s not Honey G out of X-Factor

Re  E (A child : Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/59.html

 

The final hearing was conducted by Mr Justice Moor, and he opened with this King Punch

 

  • Following the Family Justice Review, it was recognised that care proceedings were taking far too long. At the time, the average length of a care case was around 57 weeks. This was unacceptable. The Review recommended a maximum of 26 weeks. The Government accepted the recommendation and the Children and Families Act 2014 was enacted. Section 14 imposes a statutory limit on care proceedings of 26 weeks, albeit that the period can be extended but only if it is necessary to resolve the proceedings justly. Extensions are not to be granted routinely and each extension is to be for no more than eight weeks.
  • The care proceedings in relation to E. commenced on 12th January 2014. By my calculations, that is some 148 weeks ago. I am dismayed by this. It is completely wrong. E. has been let down in a quite unacceptable way. The strain on E.’s mother has been huge. She has been let down as well. Everything that could go wrong in this case has gone wrong. E. and her family are due an apology for this unacceptable state of affairs.

 

 

Awful situation.  When I look at the history of litigation set out by the Judge though, I see SEVEN different Judges have dealt with substantive matters where issues were contested and determined, and who knows how many others have done directions hearing.  What price judicial continuity? The Courts have to look at themselves for some of this. The case could not have got up to 148 weeks if the Courts weren’t granting extensions, and though many of them were due to faults from the parties, there was still a failure to properly grip the case right up until Mr Justice MacDonald’s fearsome judgment.

 

Having said that, it was still quite astonishing that a case with the history of this one (two appeals, case falling apart at final hearing, the LA within a short space of time going from a plan of no order, to Supervision Order to Care Order to Care Order and removal) that the LA got to the final hearing with a social worker who seemed very nice, but for whom this was their second ever case in Court.  It also wasn’t ideal that his first ever interaction with the mother was one where he had to tell her that the LA care plan was adoption.

 

The Judge did make some criticisms of the LA (though compared to the  withering and blistering MacDonald J judgment, these criticisms must have almost felt like praise)

 

 

  • I have already dealt with the failures of the Local Authority to comply with the directions of this court in the run up to this hearing as set out in the judgment of MacDonald J dated 17th October 2016. In the context of what had happened before, I am of the view that this case should have been given absolute priority. It was not.
  • I am equally satisfied that there have been many operational failings by the Local Authority in performing its duties as to its social work function. These have occurred at a significant number of points in the case but were particularly evident at the time that rehabilitation to the Mother was ordered by Mr Recorder Bedingfield. For example, the order of the Recorder dated 20th November 2015 required the Local Authority to convene a professionals meeting by 4pm on 7th December 2015. It did not do so. It did attempt to arrange a meeting but gave Ms CT such little notice that she could not attend. The Local Authority did not, therefore, comply with the next order, namely to file a new care plan setting out the detail of the rehabilitation plan within seven days of the meeting.
  • The Mother’s benefits had been stopped. Whilst the Mother may have carried some of the responsibly for this, I am satisfied that the Local Authority did not assist in the way that it should. Correspondence from the Mother’s solicitors was not responded to such that judicial review had to be threatened. Eventually, the Local Authority agreed to provide the Mother with £234.31 per week in a recital to an order dated 25th January 2016 but I am satisfied that even that did not go smoothly. Moreover, there was difficulty with the Mother getting her travel warrants to attend KCA for her drug and anger management therapy. Later, she was unable to attend this therapy as only one hour of child care was provided via PKS. As the KCA appointment was also for one-hour and she had to travel to and from the venue, it made it virtually impossible for her to continue with the work.
  • I further accept that the Mother did not find her leaving care worker, Ms T to be remotely supportive of her. The Local Authority knew that. Mr Recorder Bedingfield had made criticisms of Ms T in his judgment. I accept Ms Maclachlan’s submission that Ms T should not have been invited to the contact review meeting in January 2016, although I do not accept that this was a deliberate attempt by the Local Authority to get the Mother to lose her cool. I do recognise that, for example, the issue of the Mother’s leaving care grant, which I have been told is some £2,000, was very much in issue and needed to be dealt with. However, given the Mother’s opposition, the Local Authority should have respected that. It was another unnecessary failing.
  • Finally, the position of the Local Authority throughout this period left much to be desired. At one point in February/March 2016, it was inviting the court to make no order at all. At another, it sought only a supervision order. It then changed tack completely in later March 2016 to ask for a full care order. On 14th March 2016, it had been indicating it would be withdrawing the PKS workers. I accept that they could not continue to go into the home for ever, let alone daily but it is in stark contrast to a care plan only eight days later for removal. The way in which the Mother was told of the change in the care plan in the child protection conference on 22nd March 2016 was very insensitive, particularly as E. was present in the building, albeit with a PKS worker. I accept that it was always going to be difficult to tell the Mother. Is it better to do it in her home or with her solicitor or in the Local Authority offices? It was not, however, right to do it in the meeting. It was bound to distress the Mother enormously.

 

 

 

Very sadly, and despite an independent social worker lobbying very hard on her behalf, the Court concluded that the mother was not able to care for her child and the Care Order and Placement Orders were made.  Her representatives asked the Court to make human rights declarations but the Court declined to do so.  (I have seen reported cases with far less failings than this one which ended up with HRA declarations and claims, but of course, I didn’t hear or see the evidence)

 

But why the picture of the muppet earlier?

Well, part of the evidence involved whether the mother had been smoking cannabis, and one word rather leapt off the page at me when I was reading it

 

 

  • Another real and genuine concern is the Mother’s increased use of cannabis since March 2016. She has gone from one zoot per day to three zoots. This is a clear indication of her increased anxiety and fragility. She told the Guardian that she had ceased taking cannabis on 10th October 2016 but it lasted one day, as the Guardian predicted. She has told me she has reduced her cannabis intake recently but I am not satisfied as to this without far more information. She told the Guardian that she was using skunk, which is a significantly stronger version of the drug. She told me that she did not know the difference between ordinary cannabis and skunk, which I did find surprising although she seemed to be genuine when she told me. Having said that, she did accept that it was skunk she was buying and the Guardian told me that this is now the normal way in which cannabis is sold.
  • The use of cannabis can be very serious for the mental health of the user. I accept that different people react in different ways. This Mother has been using cannabis since she was aged thirteen. It does not appear to have affected her as badly as some. It has not prevented her getting to contact on time even early in the morning. It has not stopped her providing a good level of care for her daughter but I simply do not know what damage it is really doing. I strongly suspect that, in the long term, it is making her anxiety worse rather than better even though it does deal with the symptoms at the time. Moreover, the Mother accepts that the cost is some £10 per day or £70 per week. Given the enormous squeeze on benefits, I simply do not know how someone can spend that amount of money without a really serious effect on their standard of living. All this would have a real effect on E. too if it was to continue notwithstanding what the Mother said about prioritising E.
  • Ms CT appeared to accept the seriousness of this in her evidence. She said to me on more than one occasion that this did concern her, particularly if the Mother was taking skunk. She said she did not know of the increase in usage and there was no disagreement as to the seriousness of the risk if she was using three zoots per day. She accepted that the Mother would have to deal with this before E. could be safely returned and she was not advocating an immediate return to that Mother’s care. She reminded me that the Mother had managed to achieve periods of abstinence in the past (on one occasion of some four months) but she has always returned to the drug. I find that, without professional help, there is no chance of her being able to cease its use. In due course, it may start to have severely adverse effects upon her mental health.

 

 

 

Urban dictionary confirms that ‘zoot’ as we would take from the context, is indeed a joint or a spliff, and as the first time it appears in the judgment it is in quotes, it must be the term that mother herself used

It is right that the Mother continued to smoke one “zoot” of cannabis every evening after E. had gone to bed.

 

We’ve all rightly praised Mr Justice Peter Jackson for his judgment where he wrote directly for the children, using language that they would follow. So we should also commend this Judge for using the language that the mother herself was using.  And after all, joint and spliff are both slang words  (and if the Judge had said ‘reefer’ it would have seemed very dated.  So I think it is a good thing.  I just wonder how it sounded, coming from a High Court Judge.

 

If you do wonder what it is like when someone wearing a tie is talking very street language, you might be glad to know that Chicken Connoisseur has dropped a new review.   (And yes, I’ve been wanting an excuse to crowbar in a reference to the Pengest Munch. Enjoy.   The burger was not peng at all, it was just hench)

 

 

 

 

Bad week for Gloucestershire continues to get worse

I wrote on Wednesday about Gloucestershire social workers getting a hard time from His Honour Judge Wildblood QC, and it is only Friday and they are getting another. For many of the same issues

 

 

C1 and C2 (Children :Section 20 of the Children Act) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B149.html

 

  1. This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.
  2. The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).
  3. The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.
  4. Over the past year I have i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation, ii) attended conferences in this area at which I have spoken on this issue, iii) issued newsletters where I have written about it, iv) placed judgments about it on the Bailii website, v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and vi) raised the issue with the Local Family Justice Board.
  5. Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.
  6. The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.
  7. For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.
  8. The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.
  9. Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?

 

 

[Also note, that despite a period of nearly two years in section 20 foster care  The putative father of the eldest child underwent DNA testing only yesterday ]

 

Powerful words.  The Judge here is quite right – the delay in section 20 cases coming before the Court is one that harms children.  The Government have tackled the delay that occurs within proceedings (firstly by the clause in the Children Act 1989 that specifically says that delay within proceedings is harmful to children and to be avoided if possible, and latterly by introducing the Children and Families Act 2014 to try to make care proceedings be resolved within 6 months).

 

The delay BEFORE proceedings are issued though, has not been tackled. It may even be that the introduction of the Children and Families Act actually made it worse – because there’s a relatively short space of time once the care proceedings start for the social worker to get absolutely everything done and the case can be finished, it can be tempting to not start the case until almost all of that is done. Which can mean, in a case where parents aren’t demanding the return of the child or their lawyer sending angry letters, that there’s delay for the child.

It may be that all that the Children and Families Act 26 week edict has done is “Shift the Drift” so that most of it happens before Court proceedings. Which is worse, because at least when the case is in Court, everyone has a lawyer and knows their rights and a Judge can control the timetable. Section 20 drift is a real problem.

 

Here, this was a case that was inevitably going to need care proceedings. The children were 3 years old and 15 months old when they came into foster care, and they came into foster care as a result of suspicious bruising.  And there was a background of concerns that went back to 2010. That was always likely to need to be resolved by a Court, and it was always the case that decisions needed to be made for these children quickly, so that wherever they were going to live permanently that could be done and the children settled.

It isn’t a problem that only happens in Gloucester, not by any stretch of the imagination. But Gloucester have a Judge who has realised the scope and nature of this problem and is going to express displeasure about it each and every time.

 

What would be some practical proposals, if one was to legislate to fix it?

 

Well, I would start with the requirement that any use of section 20 where the child is in care for more than a fortnight must go through the PLO procedure – that means the parents get sent a letter about the concerns and future plans and more importantly attend a meeting and get legal advice. That means that they will absolutely know that they have the right to remove the child from section 20 and can make the Local Authority ‘put up or shut up’ – either take the case to Court and persuade a Judge that the child needs to stay in foster care or to return the child.

Another helpful addition might be to incorporate into legislation that a Local Authority can’t take a section 20 consent given in September 2013 and be still relying on it in March 2015. What would be wrong with saying that section 20 consent must be obtained afresh after 20 days, then 3 months after that, and then every 6 months thereafter?   [That is the same timing as LAC reviews, and thus the IRO can be charged with establishing at the LAC review whether there is genuine and informed parental consent to the next period of section 20 accommodation, and if not the LA are to ‘put up or shut up’]

 

Could a Judge impose such stipulations on a Local Authority without legislation?   I don’t think that even the President would have such power by way of Practice Direction – those powers really only extend to what happens within care proceedings – a Judge can’t really fetter what a Local Authority can do before care proceedings are initiated.

 

An option available to parents is to make a claim under the Human Rights Act – as can be seen from the last blog, even if the section 20 consent is given freely and on an informed basis, there is the possibility of a claim on the basis that the State’s actions in using section 20 to keep the child in care rather than working actively on either rehabilitation or putting the matter before the Court are not proportionate.

 

[In the Hackney case in the last blog, the parents would have lost on the ‘proportionality’ argument based on the facts in that case, but the section 20 was only for two months, not nearly two years as here]

 

 

The other noteworthy element of this case was the Guardian’s tentative suggestion that there be a psychologist to assess the children. I wholeheartedly agree with the judicial approach here.

 

The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers: a) is obvious; b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian. Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.

 

 

I think I might be taking this to Bristol Family Court if I was cursed with having to do a section 20 drift case next week.

 

 

Your Honour, I represent the Local Authority. Did you get the exhibit to my position statement?

 

 

 

And I’m all outta bubblegum

 

 

It is always enjoyable for me to receive a judgment from His Honour Judge Wildblood QC.  I expect that there may be a slightly different qualitative experience between reading one at a safe geographical distance and being physically present to receive it on a case you’re involved in.

 

My mental image of His Honour Judge Wildblood QC is that of a kindly man who nonetheless would be able to come into his Court room and open with the Rowdy Roddy Piper (God Rest his soul) line

 

“I came here to chew bubblegum and kick ass… and I’m all outta bubblegum”

 

[Incidentally, the fight scene in this movie, They Live, which is between two characters, one of whom wants the other to put on a pair of sunglasses and the other who is reluctant to don said sunglasses, is so epic that my dad came and got me out of bed to come and watch it at about three am, when he was watching this film on TV. And I was glad that he did. It is marvellous.  In case you are in any doubt – when I compare HH J Wildblood QC with Rowdy Roddy Piper it is intended as high praise]

This case does not disappoint on that level. There was clearly a deficiency of gum that day, but no deficiency of kicking ass.

 

Gloucestershire CC and M 2015

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B147.html

I am publishing the judgment in this case because it is an example of the following:

i) The unnecessarily protected use of accommodation of a child under section 20 of The Children Act 1989. This child was accommodated with short term foster carers for 12 months before these inevitable proceedings were issued and has now been with them for about 16 months.

ii) The delayed identification of the need for therapeutic intervention for this mother. 19 months after the Local Authority intervened in a family where the mother had obvious difficulties it was identified that the mother needed therapy. It was then said that, by then, the benefit of therapy was ‘outwith the timescales of the child’. If psychological evidence was to be obtained with the invariable recommendation of therapy (and I have never known a psychologist not recommend therapy in a report) I cannot understand why it was not obtained much earlier.

iii) Failure to identify realistic options leading to the adjournment of this final hearing and a consequent inability to meet the timetabling demands of section 32 of The Children Act 1989, as amended.

 

Section 20 drift has been something of a theme of the Courts and hence this blog, for some time now.

As a quick rule of thumb for a social worker thinking about a case in their cabinet/caseload where there’s a section 20 agreement, ask yourself this question

 

If the mother or father rang you this afternoon and said “I want the child back” would you be ?

 

(a) Perfectly fine about that and make the arrangements

(b) Okay about it, but suggest that the move take place over the next 2 days to make the preparations

(c) Concerned and thinking that the child would not be safe at the moment, if they went home

(d) In a blind panic, and wanting to do anything to stop that happening

 

If your answer is (c) or (d), then it isn’t really a proper use of section 20 any more. The section 20 here is a very short holding position until you can either have a Meeting Before Action at which the parents will have lawyers, or care proceedings at which the parents will have lawyers.

 

 

  1. C grew up in the primary care of his mother until 28th May 2014 when, at the age of 5, he was removed from the mother under police powers of protection and then accommodated by the Local Authority with foster carers. The mother does not accept that the threshold criteria in s31 (2) of The Children Act 1989 are fulfilled and has also issued a claim for damages under The Human Rights Act 1998 in relation to the circumstances in which C was removed from her care and the manner in which the Local Authority has conducted itself in relation to C. On the same day in May 2014 A went to live with Mr D.
  2. For no valid reason it took the Local Authority a year, that is until 15th May 2015, to issue these proceedings. In its application the Local Authority said at B9: ‘C was the subject of a child protection plan from August 2013 until 19th May 2014 as a consequence of neglectful parenting. The concerns related to the dirty and unhygienic home conditions and the mother’s mental health and its impact upon her parenting and capacity to meet her child’s needs. A week after de-registration a further child protection referral was received. C was accommodated on 29th May 2014 following police powers of protection being used on 28th May 2014. The police removed C as a consequence of a person known to be a risk to children continuing to have contact with him (against professional advice) and because of the unsuitable home conditions. On 29th September 2014 the mother was evicted from her flat which had been significantly damaged. The mother was sofa surfing. Roger Hutchinson, psychologist, completed a report on the mother on 9th March 2015. This concluded that the mother experiences social anxiety and schizoid and paranoid traits with poorly developed social, functional and adaptive skills. Therapy is indicated over a nine month period’.
  3. C has therefore been with his current foster carers for 16 months of his life, has settled with them and is integrated into life with them. His mother has been having contact with him twice a week for sessions lasting one hour and although there have been inevitable niggles about that contact, a condensed analysis of that contact could not express it as falling below the grasp of the adjective ‘reasonable’ on my current reading of the papers and submissions that were made at the IRH. C’s educational and social connections, at an important time of his life when he is settling into school, have all been made from the base of his current foster home. The foster carers have done an excellent job in caring for him and, in his letter to the judge, C says ‘my family is [the foster father, the foster mother and their cat]‘ and draws the foster father with a big smile on his face. The guardian reports that C is making ‘greatly improved progress at school and his health has improved’ since living with them [A14].

 

 

These three paragraphs of background raise the three obvious questions

 

  1. What the hell took the LA so long to issue?
  2. Is it fair for the LA to have delayed so long in finding out that mum needed 9 months of therapy – because if they’d found out earlier, she’d have had it by now
  3. IF the child can’t go and live with mother, surely this child is going to stay with the current carers if humanly possible

 

However, the LA in this case had delayed for so long, were saying that the child couldn’t wait for mum to have therapy, and had ruled out the current foster carer as an option.

 

Taking these in turn

i) Having been involved with this mother since August 2013 and having accommodated this child in May 2014 it is inexplicable that it took a year for the Local Authority to issue these proceedings. That has absolutely nothing to do with limited resources. It is simply bad practice.

 

On the issue of therapy :-

 

ii) The Local Authority knew the mother’s level of functioning but still took until 9th March 2015 to identify that this mother needed therapy. Knowing the mother’s level of functioning why did it take 19 months (from August 2013) to do that? How can it be regarded as satisfactory for the Local Authority now to say that the mother needs therapy which is outwith the timescales of the child? For instance, if a psychologist’s report had been obtained within three months of C being accommodated (i.e. in August 2014) there could have been 13 months of therapy by now at far less expense than the cost of these proceedings leading to the possibility that the consequences of this mother’s unfortunate background could have been mitigated with the child receiving an upbringing with her

 

[I have a bit of sympathy with the LA here –  I’m not sure whether anyone actually argued that as a result of House of Lords authority Kent County Council v G, it is not within the Court’s powers to compel the provision of therapy, that therapy thus has to be resourced through the NHS and the NHS aren’t going to provide therapy without a clear diagnosis and recommendation, at least not without a huge waiting list. So tempting as it is to just start the therapy whilst waiting for the expert report, that isn’t how the real world works.  It is fair enough to say that the real world in this regard sucks and it needs to change.   There is possibly a big argument to come as to whether the House of Lords settled position that “there is no article 8 right to be made a better parent at public expense” is compatible with what Baroness Hale says in Re B about the State needing to provide the resources to do just that, but that’s a debate that can only be resolved by the Supreme Court. ]

 

On the last issue, why the current foster carers had been rejected in favour of adoption by the LA.

 

  1. At the IRH, on 8th September 2015, I was told that the current foster carers were not offering C a long term home. The guardian says in her position statement: ‘since the IRH on 8th September 2015 the guardian has spoken to C’s current foster carers. They have confirmed they have never said they would not keep C long term as foster carers. They would not wish to consider special guardianship or adoption because they see themselves as foster carers and may well wish to foster another child and would wish both children to be placed with them on the same basis. The foster carer has also informed the guardian that Mr D has on a number of occasions said that he would be prepared to care for C if there were no other options’.
  2. It is right that, on 27th August 2015 there was a discussion between the adoption social worker, TG, and the foster carers. I have the case note in relation to that. This conversation therefore took place six days after the placement application had been filed by the Local Authority (so the Local Authority had already ruled out long term fostering then). The foster carers were saying at the time of that note that they did not feel able to adopt C. They are not recorded as saying that they would not foster C. It took one conversation between the guardian and the foster carers to clarify matters. When asked directly by the social worker on an unspecified date (but after the IRH) ‘the foster father confirmed that he and the foster mother would have C for as along as is needed in long term foster care with a care order if they were supported by the Local Authority’. The clear impression that I have, having read the papers, heard the IRH and listened to submissions today, is that the Local Authority did not consider the possibility of long term fostering with the foster carers and, once it regarded the mother as ruled out, its linear analysis took it to adoption.

 

So the child’s current foster carer, who everyone involved would agree had done a marvellous job, was willing to be a permanent carer for the child, just that he didn’t want to adopt the child. The LA had approached this on the basis of “our plan is adoption, you don’t want to adopt, therefore you are out”, rather than looking at whether the child could remain with the carer on a different basis THUS avoiding the need for adoption.

 

The case simply could not be concluded, as there were too many unknowns.

Following a heavy IRH on 8th September 2015 the case is listed before me for final hearing for the rest of this week. That final hearing cannot proceed because there are realistic options in relation to the future care of C that have not been assessed by the Local Authority. That means that large amounts of public money and time have been wasted in a Local Authority involvement that has spanned 16 months. All parties now say that the case has to be adjourned. Eventually, I have had to give up my attempt at keeping this case on the rails of this final hearing and have had to accede to adjournment. To adjourn a case where there has been lengthy Local Authority involvement with a family in a straightforward case is absurd but now unavoidable.

 

 

and in conclusion

  1. What are the options that need to be considered? They are these:

    i) That C should be rehabilitated to his mother. Of course, nature, law and common sense require that it be recognised that the best place for a child to live is with his natural parent unless proven and proportionate necessity otherwise demands. As matters stand the professional evidence is all stacked up against this mother but her case will require very careful consideration at a final hearing.

    ii) That C should continue to be a child fostered by Mr and Mrs B. If the Local Authority will not support this the only way in which C could live with the foster carers would be through private law orders. If special guardianship orders were to be proposed there would need to be a report under s14A(8) of The Children Act 1989. Therefore I need to flush out what the Local Authority is saying. If it will not agree that C should remain with the foster carers (should the court so recommend on the making of a care order and a rejection of the placement application), I will have to give directions for a special guardianship application to proceed (a written application is not necessary if I so determine – s14A(6)(b) of the 1989 Act). The possibility of C remaining with the foster carers is unassessed by the Local Authority and there has not been sufficient discussion with them.

    iii) That C should live with Mr D and A. This is also unassessed. There is no blood relationship between Mr D and C but there is a blood relationship between A and C. They have a clear fraternal attachment (in which C is A’s big brother). That possibility remains unassessed also.

    iv) That C should be placed for adoption. That is an option upon which I have already commented. I am not suggesting that there are difficulties about that option on the basis of age alone. I say that there are difficulties about it because of the particular circumstances of this child.

  2. Therefore today I have had to give directions for the future of these proceedings. By the time that the case comes back the new baby will have been born, and I wish the mother well with the birth. However, the advent of the new baby will mean that there are additional complications that will arise in ensuring that the best solution is found for C.
  3. I have given this judgment in writing so that there is a formal record of what has gone wrong in this case and how matters must now be put right. The Local Authority must consider the realistic options that arise and must put its case into order.
  4. Proper plans must be put in place for the birth of the baby and where the inevitable assessment of the mother and the baby will take place. That should have been done already. The mother is in and out of hospital at the moment and it is manifestly unfair that, as well as dealing with the physical demands of impending birth and repeated hospital appointments, she is also having to deal with the uncertainties of these proceedings and a lack of knowledge about what will happen when she does give birth – where will she be living and what is planned for the baby?
  5. The Local Authority must therefore look at the options that arise and file proper evidence in relation to them. The case will have to come back before me later this week when I will have to give further directions as to how that will be achieved. It is deeply frustrating that a case such as this has to exceed the timescales provided by section 32 of The Children Act 1989 and that should be recorded as having been caused by systemic failure by the Local Authority

 

 

There is also some pending litigation in this case as to whether when the child was originally removed from the parents by police protection, whether that was in breach of the families human rights – it being really settled law that where removal of a child is being contemplated it should be a decision of the Court unless there are exceptional and compelling reasons why the removal cannot wait for a Court hearing.