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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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section 20 drift

This case is not a legal authority, in that it was delivered by a Circuit Judge, (Her Honour Judge Atkinson) but it is a good judgment, on an important issue, so I am sharing it.

 

Re P (A child : Use of section 20) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

 

By way of context for non-lawyers, section 20 is the provision in the Children Act 1989 where a parent can agree to the child being placed in foster care – that doesn’t automatically trigger court proceedings, so the case might not go before a Judge and the parents would not have lawyers to give them free advice about their situation.

 

If you want to know more about section 20, Sarah Philimore has written an excellent and comprehensive guide – it is valuable for lawyers, professionals and parents alike http://www.childprotectionresource.org.uk/what-does-section-20-mean/

P is a little boy who was born on 04/08/09 and is now aged 5 years and 4 months. P has not lived with his mother and father for 2 ½ years. He was accommodated under s.20 Children Act 1989 by the applicant local authority, London Borough of Redbridge, (LBR) on 28th June 2012 and placed in foster care. Care proceedings were not issued until almost 2 years after his removal, on 30th May 2014.

 

There is not (currently) anything in law that prevents section 20 going on for so long, but it is not good practice. With a child of this age, decisions need to be made in good time about whether he is able to go home to his parents, or be found a home elsewhere. The longer he remains in limbo, the more uncertain his future is. Two years, for a child who was not quite three at the time the s20 started, is a long, long time.

 

In this case, that’s made even worse, because once the care proceedings did start, assessments showed that these parents would, with help, be able to look after him.

These parents accept that at the relevant date in 2012, they needed help in developing the parenting skills necessary to meet their son’s needs and that the statutory threshold is crossed as a result. On the issue of welfare, suffice to say by way of introduction, that by September 2014 it was clear, on the evidence of the jointly instructed assessment service, Symbol, that these parents were able to resume the care of their son. It was also agreed that they needed a carefully managed programme of rehabilitation which could only commence once they had somewhere to live. The problem in this case and the only reason why P has not been returned to their care is that these parents have no home of their own and it is suggested that the local authority fixed with the obligation to house them, the Royal Borough of Greenwich (RBG) is unwilling to assist.

 

It didn’t help that the stumbling block was housing, and that the Local Authority wasn’t doing all it could to provide the parents with suitable housing

  1. In my judgment, P has not been appropriately cared for by the applicant local authority within the care system where for many years he has languished in s.20 accommodation with no clear plan. It is likely that he will have suffered confusion and some harm as a result. To its credit, the authority fixed with the responsibility for P’s care, LBR, has recognised the errors in its management of this family.
  2. However those errors are compounded by P’s ongoing separation from his parents caused, I am told, by the wholesale failure of another public authority to find them somewhere to live. The RBG is unrepentant in the way that it has handled this housing issue maintaining that it has followed all proper procedures and denying any bad faith. I have listed this case next week for me to determine whether there has been any bad faith in its handling of this case and to give the authority concerned the opportunity to reflect upon the circumstances in which this family finds itself. In the interim I have fixed RBG with the responsibility to support this family through an interim supervision order in the hope that by bringing children’s services on board I will see some “joined up thinking” develop within the authority as between housing and children’s services.

 

[If you want to know more about the housing side of things, I recommend Nearly Legal’s blog piece on it http://nearlylegal.co.uk/blog/2014/12/every-possible-obstacle/   which highlights that this appears wasn’t just the wheels of bureacracy moving slowly, but a conscious decision not to offer housing]

 

The Judge had this to say about the Local Authority’s use of section 20, particularly in relation to establishing threshold criteria (the test for whether it is right for the State to intervene in a family’s life and seek orders) and fairness

 

29. The relevant date for the purpose of this threshold is the date when P was first accommodated – 2 ½ years ago. For reasons which I am sure are obvious, the significance of those facts is reduced the more distant we are from them. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long because LBR had no plan in place. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him.

  1. It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.
  2. In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.
  3. Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

 

With all of that in mind, you might well be amazed that the Local Authority proposal for the way forward was for section 20 to continue whilst housing was resolved.  That shrill beeping noise you are hearing is the Court metal detector still going off three weeks later due to the balls of steel that London Borough of Redbridge’s team must have had to even suggest that as a solution.

Iron cojones or not, the Judge wasn’t much taken with that as a plan.

Turning now to the welfare decision, and contrary to my usual instinct to bring matters to a close and leave the LA to do its job, I absolutely agree that I am unable to make final orders here today. I am horrified that LBR should even ask and in doing so suggest that we should revert to the arrangement in which we use s.20 accommodation to “hold” the child until an unspecified point in the future when the other authority in this case complies with its housing obligation.

 

If you remember being at school and watching a classmate being told off and enjoying it, only to then have the teacher swivel towards you and say “And I don’t know what YOU’RE grinning about…”   this next bit will bring back memories.  Royal Borough of Greenwich are about to cop an earful too

I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.

 

At least to their credit, after the judicial dressing down, accommodation was found for the family, and they were reconciled, nearly 2 1/2 years after first being separated

 

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

As a result I had no need to make findings on the disputed facts.

The LBR have committed to embark upon an investigation as to how this child was accommodated without a plan for such a long time. I am grateful to them for that.

 

This Judge did remarkably well to secure justice for this family. It is a shame that her remarks about section 20 drift aren’t authority, but they will be useful pointers in framing the argument in similar cases. It seems like it will only be a matter of time before Courts set down an authority that such drift and delay amounts to an article 8 breach for which compensation is payable.

 

I’m afraid that this can be part of human nature – social workers are busy and are fire-fighting crises all of the time. If the child is in section 20 and the parents aren’t clamouring for the return, there’s a danger that the case drifts not by design but because it never presents as being a towering inferno that has to be tackled as an immediate priority then and there.

The IRO in this case also got away without criticism, but this drift ought to have been nipped in the bud at the Looked After Child reviews.  There has to be a LAC review for a child in care after 28 days, then after 3 months, and then at least every 6 months. So for P, there should have been at least four, perhaps five LAC reviews before the proceedings were issued.

 

And by the second LAC review, there should be a plan for the child’s permanent future, which probably did not happen here. It is the job of the IRO to make sure that this sort of drift doesn’t happen and that the case doesn’t get put on the backburner over and over.

 

Who benefits?

 

I have been aware for a while now of a pending problem as a result of benefit changes. The plans to cap benefits for families means that for some families, who live in areas of the country where rents are high, they will no longer have enough housing benefit to cover their rent.

 This is coming to a head in central London, as can be seen from this story in the Guardian.

http://www.guardian.co.uk/uk/2013/feb/13/london-council-relocation-benefits-cap

 Camden, for example, will have to be moving 700 families out of their area, unless they can find £90 a week to cover the brand new shortfall between their rent and their Housing Benefit. And they won’t be moving a tube stop or a long bus ride from their homes, but almost certainly out of London. The places being discussed are Bradford, Birmingham, and Leicester.   [As someone who has practised in Birmingham and knows about their housing waiting list this came as a hell of a surprise to me, that Birmingham suddenly apparently has housing to spare]

 Brent estimate that they might have 1,000 families who need to move, and have purchased housing in Luton and Slough.

 This all arises of course from the harsh reality that the cost of housing varies considerably across the country, and there are a lot of areas in the country where people on benefits are provided with housing where it would simply be impossible for an average working family to live.  That leads to costs to the public purse, of course, and we are in a climate of austerity.

 Politically speaking, the sell that it feels wrong for families on benefits to be in receipt of more money than an average working family, has made it possible for these changes to be pushed through.

 In reality, moving your children from a school in Camden to a school and home in Leicester, doesn’t come without an impact. We aren’t talking about moving from one posh street in a town to another rather less posh street, but moving many many miles away, away from your family, your social networks, your supports and your children’s social networks.

 What we can’t predict, of course, is how many families hovering on the brink of care proceedings might be tipped by this, as they try to manage disruption, unhappiness, profound feelings of dislocation, isolation and being moved from all their supports, both professional and family / friends.

From a legal point of view, assuming that being offered housing in Leicester and turning it down legitimately extinguishes the duty of the Housing department towards a parent  (I am not a housing lawyer, and will stand to be corrected if not)  causes a problem for a parent in that situation. They either accept the move or they are voluntarily homeless.  (And of course, there will be either limited or most likely no recourse at all to free legal advice to challenge housing)

 So, if the parent refuses to move to Leicester, and housing discharge their obligations and in due course serve eviction or notice to quit proceedings, what happens then?   

 [My use of Camden here is purely illustrative because they are the lead authority in the story, I don’t work for Camden, don’t represent them, and am sure that they are as utterly horrified as being put in this awful position as anyone else would be]

 Well, they probably approach Social Services and ask them to help with provision of housing, on the basis that the children will be in need of this.

 The Court of Appeal looked in the case of R V B LONDON BOROUGH COUNCIL, EX PARTE G (2001) [2001] EWCA Civ 540  at the issue of whether the Local Authorities duties under section 17 or section 20 of the Children Act 1989 extended to the duty to provide housing for a parent to keep them together with a child and found that it does not.

The LA can be obliged to offer accommodation under section 20 for the children, but not for the parent. So the children could be placed in care whilst the parents sleep rough.

In reality, it seems both unlikely and undesirable that a parent would agree to place their children in care purely as a result of housing difficulties.

 The duties to accommodate an adult arise from the National Assistance Act 1948, and it is unlikely (unless the parent has health or needs over and above destitution) for them to qualify for accommodation under those provisions.

So, a family with 3 children are evicted from their property in Camden, and refuse to go to Leicester.  Housing’s duties to them has ended. They won’t be able to get private rental accommodation, because housing benefit won’t be sufficient to pay the rent. They won’t be able to get Social Services to accommodate the family,  and their choices are therefore :- 

  1. Be homeless in Camden
  2. Put their children into foster care and be homeless themselves
  3. Move to Leicester

 

What if they call everyone’s bluff and go for option 1, being homeless in Camden with their children? Well, there is clearly then a risk of significant harm for the children, who would be living and sleeping rough.

 I can’t, for my part, envisage any family Judge that I have ever been before, entertaining positively an application for an Interim Care Order where the threshold was based solely on homelessness that has arisen through a parents legitimate desire not to be relocated to the other end of the country (this isn’t them being evicted for not paying rent or being anti-social, just that they happen to be poor in an area of the country where it is no longer okay to be poor).

 The grounds for an ICO might be met, but I can’t envisage a Court actually making the order.   [I can’t find the attribution, but the line  “I can believe in hell, I just can’t believe there’s anyone in there” struck me]  and that the Judge would probably be summonsing Directors of Housing and Directors of Social Services to come to Court to explain what the heck is going on with this.  [Not that they are called that anymore, they are probably called Chief of Envisioning and Chief of Commissioning or some god-awful thing now]

 So, a family who call the LA’s bluff are probably not going to find themselves in Court (probably – I emphasise that this is not my advice), and that leaves them and their 3 children sleeping rough in Camden.  Are Camden Social Services going to be okay about that? Or are they going to get somewhat fretful and think that regardless of whether they have a DUTY to accommodate, they might find some section 17 money to finance accommodation at least whilst the family make some transitional arrangements to get housing elsewhere?

 I know that if I were such a family, I would be settling my children down in a park, ideally in close proximity to tramps drinking Special Brew, and calling a journalist to come and take some photographs to illustrate the story.  I think the political fallout from that would lead to the Director of Housing and Director of Social Services being called in to see the Leader of the Council.

 One way or another, the big bosses of housing and social services are going to get shouted at by someone.

This is not merely theoretical, at some point, some family is going to say “no, I’m not moving to X, this is our home” and some really tough decisions are going to have to be taken.

 I was reminded, in writing this piece, of the Westminster “Homes for Votes” scandal, in which in certain key marginal wards, Westminster managed its housing stock in such a way that those who were considered demographically likely to vote Labour (the poor, the unemployed) ended up having to get housing outside of the area. 

I don’t claim that there is overt gerrymandering here [that would be a scandalous suggestion, that a Tory government might want poor people moved out of the home counties and into the midlands and the north], but a consequence, intended or not, of making public housing unaffordable in London to those on benefits and shipping them out to cheaper places in the country, is to further wider the divide between affluent and poor parts of the country?

Those affluent parts will have populations who are council tax payers rather than users of services, and the poor parts will have populations with a high proportion of users of services and low proportion of council tax payers.

 {I’m aware that I’ve been channelling Private Fraser from Dad’s Army this week “We’re all doomed”  but as this hasn’t been implemented yet, there is still a chance of public disquiet changing this course and I’d rather light a candle than curse the dark.  I will try, however,  to be more cheerful next week}

doomed!