When you call a case RE EF (flawed Placement Order application) 2015, you are laying down a marker that this is going to be a judgment that makes criticisms. And so it does.
In fact when you read it, had the Judge designated this case as Re EF (Local Authority screw everything up, badly) 2015, that would not cause anyone in the Trades Description Act enforcement department to be concerned.
This is a judgment from a Circuit Judge, which means that it is not binding, but lessons can still be drawn from it. It was delivered by His Honour Judge Wildblood QC (who readers may recall fixed the tangle on banning a UKIP parliamentary candidate from allowing his younger children to participate in any political activity)
If you are umming-and-ahing about whether to read on, let me give you this titbit.
For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.
Still with me? Yes, I thought so.
I can’t really better how the Judge opens the case, so I will just quote it. [When a Judge is kicking your ass and being kind about it, that actually feels worse than being roasted by an angry Judge – just like when your parent tries the “I’m not cross with you, I’m disappointed” is astonishingly effective – at least the first time round]
1. Foreword – Of course many cases reveal a few points of bad practice. However it is very rare that so many such points should be gathered into one case. It has taken two years and five months for these proceedings to be resolved. The case was listed in front of me (even though I had had no previous dealings with it save for a short procedural directions hearing 18 months ago) because there were such difficulties with it that it was thought necessary for it to come before me as the Designated Family Judge. I can see why.
2. This is an application for a placement order in relation to a little girl who is 4½ years old and who is already subject to a care order. It is a case that reveals multiple failures. The principal failures have been those of the Local Authority but there have also been failures within the court led process and by those who represent the parties. The delay speaks for itself but, in this judgment, I will set out what has happened. Despite what is said in Re W  EWFC 22 orders of the court have been ignored. In one instance the Local Authority chose to ignore an order of the court (i.e. it declined to carry out an assessment of the father despite having been ordered to do so). In another instance the Local Authority failed to do what it had agreed to do (i.e. issue a placement application within a timescale agreed on the face of an order – by 30th October 2013- choosing to leave it for another four months before the application was issued on 18th February 2014). There has been sequential presentation of applications, as to which there are now the authorities of Surrey County Council v S  EWCA Civ and Re R  EWCA Civ 1625 [para 20]; here a care order was made in October 2013 with a view to the child being placed for adoption and, seventeen months on, I am hearing the placement application. This is the fifth listed hearing of this application for a placement order with each adjournment being necessitated by the inadequacy of the evidence that the Local Authority has provided. The analysis of options is inadequate (and does not analysis to any sufficient degree the benefit to the child of maintaining contact with her natural family). The professional assessments do not weigh up adequately the pros and cons of the competing options for this child (and the experts both gave evidence about the negatives of the father’s position without being asked to consider the negatives of adoption, such as the loss of family contact). The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court). The authority has had permission to investigate available foster and adoptive carers since September 2013; it has not investigated long term fostering as an option at all (despite saying that it would on many occasions – see e.g. page 38 of the transcript of the evidence of the social worker Ms Morley) and despite its apparent searches has had one expression of interest from a couple who know nothing about the specific details of the child. There has been no judicial continuity.
3. I realise that the Local Authority management will be as deeply disappointed as I am that a case comes before a court in this area in this condition. Criticism is often far from helpful and I would much prefer to work with authorities to improve matters rather than deliver criticisms from the bench. However, if I make a placement order I cannot attach conditions to it; as examined in helpful closing speeches, the power to attach contact provisions to a placement order under section 26 of the Adoption and Children Act 2002 bears a large number of practical difficulties (e.g. contact until when?). As Ms Rowsell said in her realistic and helpful closing speech – the Local Authority asks you to have confidence that it will operate appropriately under a placement order but accepts that the past means that there is little reason for it to do so. For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.
Although clearly the bulk of the faults here have been with the Local Authority, the Judge recognises that the lack of judicial continuity and control has been a factor as well. It was wrong to have made the Care Order in the first place when the care plan was for adoption and there was no Placement Order application, it was wrong to have tolerated that drift, it was wrong to have allowed the timetable to get so out of hand.
Again, I will pick out one devastating line
The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court).
Can I resist the urge here to make a sarcastic aside about how that is standard practice for some (not all) Guardians? No, it appears that like Oscar Wilde I can resist everything except temptation.
This next bit is music to my ears – it something that particularly vexes me and I am pleased to see a Judge dealing with it. It is the issue of getting to a final hearing without it being plain what orders each party invites the Court to make. It is not that helpful to just know that X opposes Y, what you need to know is what order does X propose instead?
The only application before the court is that of the Local Authority for a placement order. There are no actual applications by either of the parents. On the scale of things involved in this case, I advance this point as one of mild criticism only and primarily for the purposes of clarifying what I am dealing with. But there should either have been applications setting out the orders sought or at least a record on the face of orders as to what applications are being pursued. The nearest that one gets is to look at the order at B128 that states that ‘the father wishes EF to be placed with him. The mother wishes for EF to be placed with her. The paternal grandmother wishes for EF to be placed with the father but if not with him then with herself’. On behalf the father I was told that he seeks a child arrangements order. I hope that it is not just legal pedantry to say that the nature of the orders sought should be identified not just for the purposes of clarity and definition but also because some applications involve different procedural requirements – for instance I had no idea whether the paternal grandmother might be seeking a special guardianship order in default of placement with the father. Of course no judge wants to see money and trees wasted in making unnecessary paper applications and it is often acceptable to record that parties are deemed to have applied for orders. But there must be some attempt at formality in establishing who is seeking what orders.
On a factual basis, the Gordian knot in this case seems to be that the Placement Order / adoption route was only the plan for this girl, who was 4 1/2 by the time of this hearing, and that her older siblings would be placed elsewhere. A plan of adoption would not only sever her relationship with her parents, but with those siblings. There might be circumstances in which that was still in the child’s best interests, but it is a very important aspect to be balanced in reaching that decision – the Court would need to know why an alternative option (like placing with father or long-term foster carer) which would not have the detriment of ending the sibling relationship would not be right for this particular child. And that never really got answered to the Court’s satisfaction.
For some reason the two experts instructed in the case weren’t asked to address this issue in their reports, and thus didn’t. And the social worker didn’t address the sibling relationship and merits of contact in final evidence.
As it is the attempt to weigh up the competing options within the paperwork has to be taken from Mr Gray’s final statement. There are any number of difficulties with that document. Firstly, there has been no Local Authority assessment of the importance of contact between the siblings; the arrangements for this have largely been left to the three sets of foster carers. Secondly, the only assessment of the father (including three contact sessions) that Mr Gray wrote was the positive viability assessment; the quality of contact with the father and the importance of his role are not analysed when considering the options. Thirdly, the difficulties in finding adopters was not considered (the Local Authority has already had 17 months to do this). Fourthly, the fact that the Local Authority has not looked for foster carers at all is not mentioned
In a case like this, the search for foster carers would be a vital component. If you search and can’t find any, it is an important piece of evidence about the likelihood of being able to find one in the future. If you find some, then you have provided the Court with concrete options to choose between. You can’t really sidestep the issue by not even looking.
Especially when your care plan six months ago when the Care Order had been made was to triple track and look for adoptive placements, foster placements and assess dad. Having done none of those things, it wasn’t really even a single track. Having said they would in effect build a tricycle, the Local Authority turned up for this final hearing with a care plan where the wheels had come off completely.
The care plan states that the Local Authority would plan to search exclusively for an adoptive placement for six months following the making of a placement order. That amounts to a departure from what was being said in September and October 2013 where the case was to be twin tracked between fostering and adoption and permission was given for this to occur. Further, the Local Authority was again given permission to seek adoptive and long term fostering placements in September 2014 (i.e. six months ago) with the intention that it would pursue a triple track analysis – adoption, fostering and placement with father. It did not pursue fostering at all, failed to assess the father properly despite being ordered to do so and can offer one tentative enquiry about adoption from a couple who expressed interest ‘before Christmas’ and have not been investigated further.
And what of the future? And sibling contact? What were the Local Authorities proposals?
19. If an adoptive placement is not found in six months the Local Authority says that it would give further consideration to long-term foster care. In six months time EF will be five and in her second year of school education (she is just ‘rising five’ for this school year – C10). Thus her start at school in September 2014 took place from interim foster care 11 months after the care order was made and seven months after the placement application was made.
20. The care plan is non-specific about contact between the three siblings; at C179 the social worker says: ‘direct contact would be promoted [between the three siblings] if this was assessed as being in EF’s best interests and risks associated with their ongoing contacts with the wider birth family could be mitigated. Adopters open to promotion of direct contact would be recruited by the agency’. The guardian said this about inter sibling contact in her oral evidence: ‘The contact between EF and one of her brothers has included an overnight stay. There has been inter sibling contact three times a year with all three children together but there is also separate monthly contact between EF and one of the her brothers and less frequent contact between EF and her other brother. Ideally, if EF is placed for adoption, an adopter would have to accept inter sibling contact although this will not be easy because the parents will continue to have contact with the boys and adopters might find that difficult’. Having considered matters overnight, and after a period of adjournment for reflection, the guardian through her solicitor and in her presence said that one could not have any confidence that the Local Authority would deal with this issue of inter sibling contact appropriately and there was a very risk that it would not press for or find adopters who would tolerate inter sibling contact. Thus there was a very real risk that a placement order would result in this child losing all contact with all of her family members.
21. The care plan also proposes indirect (i.e. written) contact between the children twice a year (which is not easy to envisage given the ages of the children) as well as cards at birthdays and Christmas. As to the parents, maternal grandmother and paternal grandparents the care plan suggests that they should have indirect contact only, once a year and Mr Gray, the social worker suggests at C179 that ‘this enables the continued development of [EF]’s identity and comprehension of her birth family story within safe parameters’. When considering the proposals for contact nothing is said about the quality of the father’s contact to date. It was agreed in closing speeches (on my enquiry) that the contact between this father and this child has been ‘good and loving’. The contact notes are at enclosure F.
Remember that one of the wheels on the Local Authority’s care plan (on which the Court made a final Care Order) was an assessment of the father? What happened with that?
There was also a preliminary parenting assessment of the father at C108 by the social worker, Mr Gray, dated 22nd October 2014. It suggested that further in depth assessment of the father was necessitated and that this would take two months to complete [C111]. The preliminary report was positive in its assessment of the father and suggested at C110 that a good attachment had been observed between the father and EF (a suggestion that Dr Edwards doubts to be correct – E37); however, at C111 Mr Gray said that there were a number of matters not covered by the assessment such as home life, providing EF with appropriate clothing, getting her to and from school, managing her behaviour and providing her with a stable environment. What is more, the person writing the assessment is Mr Gray, who has never met the father except when attending court hearings (again I say more about this later).
41. Notwithstanding the positive nature of Mr Gray’s initial report, there was then a statement filed on 6th November 2014 by Mr Tyrrell of the Local Authority child permanence team (C131); in it Mr Tyrrell stated that the Local Authority did not intend to assess the father because the ‘timescales for EF would not allow them to do so’ [C135]. The order of the Recorder of 3rd September 2014 states at paragraph 14: ‘The Local Authority shall carry out a parenting assessment of father and this shall be filed and served by 17th October 2014’. The Local Authority accepts on the face of Mr Tyrrell’s statement that it did not carry out a full assessment in accordance with that order [C135]. That is inexcusable. The order to carry out a parenting assessment means that the Local Authority should carry out a proper parenting assessment; on the very face of Mr Gray’s statement his work was not a parenting assessment, as he himself accepted in evidence.
42. The Local Authority’s decision not to assess the father properly was deliberate and considered; since that decision was in direct contravention of a court order I do not see how I can describe it other than as contemptuous. Nor do I accept that an assessment of the father would have taken two months; it would have taken as long as those involved chose.
So there was a positive viability assessment of father, the Court ordered a parenting assessment of him be filed and the Local Authority decided not to do it.
I have certain withering views of my own about how helpful it is for the President to cascade judgments suggesting that parties who are four hours later in filing a document should obtain a Court order in advance extending the deadline, but this is a kettle containing entirely different fish altogether.
We have all been late, we probably (despite our sincere desire for the contrary) will be late in the future. I HATE being late, it makes me feel sick and stops me sleeping. But it does happen. But if you get ordered to file an assessment of a father, you file something, even if it is late. You don’t just decide not to do it. For a case where your plan is adoption.
In his oral evidence Mr Gray said this. When he carried out his parenting assessment he did not see any of the case papers from the care proceedings. He did not meet the father when preparing it (and has never met him even now despite having been the social worker for EF since the end of October 2014 and being called as the only witness for the Local Authority at this hearing). Is it acceptable for a social worker to prepare care plans and file Local Authority evidence, including evidence of options and services, without ever meeting the one member of the family who seeks to care for the child concerned? One can never say ‘never’ to that question but, on the facts of this case, it was obviously inappropriate for Mr Gray to come to give evidence without ever meeting this father.
44. Mr Gray said that, since his involvement, the Local Authority has discounted the parents and so it was not thought appropriate for him to meet with them. He was not aware that the court had adjourned a final hearing because of the inadequacy of the Local Authority evidence particularly in relation to the assessment of the father. He accepted that his assessment was not a complete parenting assessment and said that he told the legal department that there needed to be a full assessment of the father.
45. There is no analysis of the contact that has taken place between the father and this child save for the three contact visits that Mr Gray did not himself observe; Ms Griffiths, who did observe them, said this at C110: ‘in general, the nature of all three observations does suggest a good attachment between EF and her father. Indeed, there was one poignant moment shared by them both when they discussed how much they missed each other’.
Poor Mr Gray gets somewhat hung out to dry here – he picked up the case after the Care Order was made and believed that what he was inheriting was a completed piece of work where all that really needed to be done was the paperwork to do a Placement Order application. That was far from the case, and there appears to have been a serious breakdown in communication as to what the new social worker would need to do in this case – the triple track of exploring potential adopters, exploring foster care and assessing dad (all against the backdrop of what each of these options might mean for EF and her siblings)
Remember all of the recent judicial strictures about keeping the bundles to 350 pages? Bear this in mind
None of the important documentation from the care proceedings was in the court bundle and so I called for the court file to be retrieved from the basement of the court office. It is from that file that I found the order of the District Judge of 1st October 2013. I also found the care plan that was made on 20th September 2013 which states that ‘a search to identify a suitable adoptive placement for her will be made; alongside this a long term foster placement will be sought as a fall back position’. No long term placements have been identified. The care plan states that the child ‘is due to be considered by the agency’s decision maker on 16/10/13’ (i.e. 15 days after the final care hearing – why? – the care plan proposed adoption).
There were even problems with the threshold – the basis on which the original Care Order had been made.
51. There is no record within the bundle about the terms in which the threshold criteria were fulfilled for the purposes of the making of the care order. Indeed, on my exploration of the two large court files there was no copy of a threshold document on file. I had to ask for it to be produced and it came into being on the second day of this hearing.
52. Further, the District Judge said this in his October 2013 judgment: ‘I incorporate into this judgment by reference two important documents, firstly the agreed final threshold document that set out the agreed facts as at the time that the application was brought and, secondly, the findings of fact that I have already made on the previous occasion’. When I asked ‘what findings were made and on what previous occasion’, there was some confusion because, within the court file, there was a schedule of findings that the Local Authority was seeking with responses from the mother. I asked: ‘Had there been a fact finding hearing?’ It appears that there was not. The District Judge did deliver a judgment in September and stated that his October judgment was a continuation of that earlier judgment. I do not have a transcript of what he said in September.
53. It is very unfortunate that I do not have a transcript of what the District Judge said in September because it was in the September that the Judge reached the conclusions that I have already set out above. Plainly it is important for me to understand the welfare basis for that. I would have thought that the Local Authority would have wanted such a transcript also so that it could guide their work. Emphasising the importance of a judgment is not judicial pique or self importance. A judgment is given after everyone has had an opportunity to have their say and it represents the rule of law in practice. If judgments and orders are just ignored, as they have been here, what follows? Further, the judgment allows people to distinguish between what is established fact and what is no more than allegation. It also explains why people are being ordered to do things.
54. The threshold document relates to the time when proceedings were started – that is 2012. Therefore it does not record the issues that were contemporary at the time of the care order and led to the conclusion that only care with a view to adoption would do. Further the document suffered from many of the deficiencies identified recently by the President in Re A (a child)  EWFC 11 (the Darlington case); for instance: ‘there are concerns as to the rough handling of the children ….there are concerns as to the general care of the children’. The threshold criteria were fulfilled on the basis of the violence between the parents, the neglect of the children, the parents lack of engagement with an assessment, the social hostility towards the parents, the parents misuse of drink and drugs and the parents’ failure to seek medical advice for the children after they suffered ‘unexplained injuries’.
If you are doing a quick head count – in this case the bundle didn’t have the right documents in it, the threshold was both wishy washy and hadn’t actually got put in the bundle, the social worker hadn’t met the father he was assessing, the experts hadn’t been asked to assess the most important thing, a triple track care plan turned into a ‘what’s a track?’ care plan, the Local Authority had been ordered to file an application for a Placement Order and filed it four months late, and the Court had granted a Care Order with a plan that looked like adoption without actually having a Placement Order application to consider (and, it turns out, without the Local Authority having Agency Decision Maker approval to actually do that)
In this case, the Local Authority were not just flirting with disaster, they had bought disaster dinner and had a toothbrush in their bag hoping that disaster would ask them to stay over.
135. Conclusion – I do not consider that it has been demonstrated to me that the welfare of EF requires that she be placed for adoption. I do not consider that it has been demonstrated to me that the less interventionist solution of fostering is inconsistent with her welfare. I think that the detriments of adoption outweigh the advantages as matters now appear. I think it highly unlikely that the Local Authority would twin track the case between fostering and adoption if a placement order were to be made. I think that such an order would be highly likely to result in all contact between this girl and her family ending. I do not consider such an order to necessary or proportionate and I do not consider that the making of such an order would place her welfare as the paramount consideration throughout out her life.
136. I therefore dismiss the application for a placement order. The effect is that EF will remain in care and will continue to have contact with her natural family. I will hear submissions if necessary on another occasion as to the arrangements for contact.
The only crumb of comfort for the LA is that in the face of a judgment like that, there wasn’t a paragraph 137 about an application for costs.