Neutral Citation Number: [2010] EWCC 28 (Fam)

Before:

HIS HONOUR JUDGE

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MRS H appeared on behalf of the APPLICANT LOCAL AUTHORITY
MR G appeared on behalf of the RESPONDENT MOTHER
MRS C appeared on behalf of the CHILD, by his CHILDREN’S GUARDIAN

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Approved
JUDGE:

1.	I am concerned with X who was born on [a day] October last year, so he is just under eight months old.  There have been care proceedings about him in circumstances which I shall return to.  This is an application made by his mother for an assessment under section 38(6) of the Children Act which would involve the placing of X with his maternal grandparents, who have been the subject of a favourable viability assessment.  I remain unclear as to precisely what the assessment is, which is part of the problems that the court has with the application.  But the proposition, as I understand it, is to consider the assessment of the grandparents in a setting to check - because, on the submissions, that is what it would have to be - their suitability as short-term and long-term carers, and presumably (this is my difficulty) to check that the placement is indeed safe.

2.	The essential background of the matter is that, on 13th November 2009, X was presented at hospital by his parents.  Putting it shortly, he had a spiral fracture of the left tibia, and, taking it again as shortly as I can, there is powerful evidence that this is a non-accidental injury.  It may be, as I understand the case, that if it is shown to be a non-accidental injury (as I must take it at this stage that it is likely to be) then there is therefore likely to be a perpetrator, and that, on the evidence so far presented to the court, one or other of the parents is the likely perpetrator.  There is no explanation about that and no explanation for the injury.  Each parent has denied causing the injury.  I note that it is said by the social worker, who has performed a viability assessment, that it is likely that it is the case that the maternal grandparents, with whom I am concerned today, accept that one or other of the parents (their daughter or their son-in-law) was the perpetrator, and that they would act accordingly in relation to protection.

3.	The landmark hearing that needs to take place first in this matter is a fact-finding hearing. It is relevant under the Children Act to consider the resources of the court and to record that that fact-finding hearing is to take place for three days beginning on 21st June.  It may be that, in the circumstances, three days is quite a long time.

4.	In the meantime, as directions hearings have taken place, the question arose in relation to placement.  The child was accommodated under section 20 in the first place and then, on 15th January, proceedings were taken by the local authority and X has been under the powers of the court under an interim care order to the local authority, and afterwards a series of renewed interim care orders.

5.	In the course of the proceedings, the question of interim placement has arisen.  Matters have proceeded at a pace which no doubt a number of those involved would have found anxiety-making and worrying.  It is to be noted that there is a particular need to avoid delay in this respect: that if X is to be brought up in due course by members of his family, depending on the conclusions that the court reaches, his family is a Polish family and they speak Polish.  The mother today has the benefit of an interpreter and, as I understand it, the maternal grandmother would certainly need an interpreter to follow court proceedings.  The foster carers are British people who live within a British culture. It would be the purpose of the family, whether or not the family lives here or in Poland, to bring X up in a Polish culture.  Whatever the circumstances are, the best illustration is that in his foster carers’ home X is addressed by people who are speaking around him in English and when he goes for contact he is then with Polish people who speak Polish.  That is merely an illustration of the whole difficulty of culture.  Therefore there is an urgency that that issue of placement is resolved without delay, and it is a particular consideration in the case.

6.	The circumstances of the family are that the parents were living here, when X was born and also when this incident occurred which gave rise to his very serious injury, albeit in a Polish culture.  The maternal grandfather has worked here for some time.  The maternal grandmother has come over here as a result of these proceedings, leaving children with extended family in Poland, and is ready to stay here for as long as is needed to give short-term and long-term care for X.  They also enjoy contact and, as I understand it, contact now in general terms takes place where they live.  As I also understand it, the parents live separately as such from the grandparents.

7.	The cause of the application or the peg on which the application is hung is a viability assessment directed by the court by a lady called W, who is, on any basis, a highly experienced social worker and children’s guardian and who may be thought to have a particular expertise in dealing with children and families from foreign cultures.  She notifies the court that she has experience with Polish families and makes some points in her report which suggest she has particular experience, as indeed, without knowing the full circumstances, her first name indicates.  

8.	She has prepared (although it is a viability assessment) a lengthy report dealing with interviews with the parents in some detail.  They can be summarised in this way: that the grandparents are people of integrity, are involved in an extensive family life and in general terms, whatever may have been the circumstances of their grandchild’s injury, a happy and fulfilled family.  They are well capable of being temporary parents for X.  They are, as I have already said, sanguine about the fact that X must have been injured by one or other of his parents.  They would be capable of regulating and keeping X safe if offered any challenge to that by the grandparents.  They are capable of regulating and controlling the situation.  Indeed, what might only be said as a criticism of them (and it is only a whisper) is they might be too strict in regulating the circumstances.

9.	I have had quoted to me extensively some observations in that regard.  Perhaps I am being repetitious but I remind myself that at the second paragraph, 3.15, of the report (because some of the numbering is duplicated in the bundle provided to me, it is at G29), the assessor indicates that: “They have bonded with the grandchild.  X has been loved and nurtured by his grandparents since his birth.  X needs to be loved and nurture and develop an attachment to a care giver.”  She makes the observation that sometimes foster parents have a more distant attachment to those they are caring for, though I think I may be forgiven for making the observation that that would not mean other that at the moment this child’s primary attachment that he is forming would be to his foster carers, as is often said in any case.

10.	At 16.8 (which is at G33 for the avoidance of doubt): “I did not have any concerns about the relationship between the parents and grandparents of X which may lead to X’s safety being compromised should the grandparents be supervising contact.”  But one of the recommendations is anticipated, and it is of some importance: “However, to avoid any confusion about when contact is permitted and in what circumstances, in my view, it may be helpful to have clear and structured boundaries around contact in the form of a written agreement by the local authority, X’s parents and... all parties’...”  She then sets out a comprehensive series of expectations of contact which she needs to refer to.

11.	That opinion, which is replicated at the end of her recommendations, is, in my judgment, of some importance.  The recommendations are that: “Pending the resolution of the care proceedings, X be placed in the care of his maternal grandparents and that this be done as a matter of urgency to promote X’s attachment to the family.”  I do not think I need to deal with the second recommendation which relates to an interpreter specifically.  The third one is a short version of what is set out: “It is my recommendation that a written agreement be drawn up clearly stating the expectations of contact arrangements.”

12.	This, as I have said, is a viability assessment.  The expectation is that a full assessment will be prepared and that she will be the independent social worker carrying the assessment out.  It is to be noted that she clearly envisages a great deal of further work.  It must also be noted that these are conclusions which are not tested, and, if I understand it correctly, it is proposed they are in some way tested by assessment by placing X with them in the community.  Thirdly, the guardian, who opposes the assessment, makes the observation (she is not able to be here today and that was known when this hearing was set down) that she has spoken to the social worker and nonetheless she reaches the opinion that an assessment at this stage is appropriate and, I think it is fair to say, for rather broader reasons than those of the local authority.  

13.	It may be seen as somewhat paradoxical that the local authority also appear to support placement with the grandparents.  At hearings before Circuit Judge on (date given) and before His Honour Judge, sitting as a deputy circuit judge, questions of what should happen had been canvassed.  The plan had been to put the social worker’s recommendations before the fostering panel of the local authority on 26th May, at least during the course of this week.  First of all, when the matter came to court, as I understand it, they had the date wrong; and secondly, in any event, by the date in question, 21st May, and by the date of the appearance before Judge, there was no panel ‘slot’ available.  Therefore it is proposed that the local authority recommendation be placed before the fostering panel on 18th June.  I have had a great deal of submission made to me on the basis that effectively are merit arguments indicating that I should, as it were, find some means of overriding and avoiding any further delay in the placement, which may (and this is why I have used the word paradoxically) take place following 18th June, although possibly not until immediately after the fact-finding hearing.

14.	I ask rhetorically, because there is no application for a residence order, how could the court consider the matter?  It needs to be at the forefront of the court’s mind that, if there was an application for a residence order, one would have to look at that in the light that there is a clear need for an interim care order.  The court, as well as the local authority, would be failing its duty in the circumstances of this case if it did not make a series of interim care orders in respect of X until these matters can be safely resolved.  That no doubt is why no application has been made, but it is an important feature to consider.

15.	That has consequences.  It means that even though the local authority does not have to wait for a fostering panel, it could consider, through senior management, an urgent placement.  I have to say that there appears to be some confusion, which occurs only when I sit in courts in the West Midlands (being somebody who sits also in courts in the East Midlands), about what is statutory regulation and what is local authority internal management.  But there is a fostering panel and there are fostering regulations which apply to all foster placements, and at least for a time, except in emergency circumstances - which could, it is fair to say, last until after the fact-finding hearing, as I understand it - the local authority is bound to act in accordance with the fostering regulations.  Prima facie, simply to place the child with the maternal grandparents would be, as the guardian puts it, an illegal placement.  

16.	The court itself cannot, in the course of making orders, unless the court stretched out - beyond there to override the regulations.  I am not convinced that it should at all, and I am not being asked to Indeed, the position of doing so is in any event, in my judgment, wholly undesirable.  The best way to deal with a future placement with grandparents, however urgent it is, is for there to be a clear written agreement and understanding, as recommended by the foster carers.  The probable situation is that the court would not be considering questions of placement until after the fact-finding hearing as such, but it is here clear that there needs to be a clear care plan (even if it is not a care plan in formal terms) to deal with the issue.

17.	Understandably, the mother, through her solicitor, puts her application under section 38(6) and the recent and well-known decision of Re A, which has been available for me to consider in full.  It is a case with which I am familiar, although what has been cited to me has been cited to me in the terms of the headnote to the case and it is probably the most convenient way of dealing with it.  It is a decision on 20th April, Residential Assessment [2009] EWHC 865 (Fam).  The main basis for the report where magistrates, in relation to the placement of a child with relatives of the parents, and indeed of the child, who were applying and being considered for a special guardianship order, considered that they could place with the applicants or potential applicants to assess the child in the placement concerned, and that that was a necessary prelude to the making of final orders.  

18.	Judge upheld the matter on a number of bases, the first being that this was an appropriate assessment that could be ordered, whereas it had up to then perhaps been assumed that a formulated placement, such as a residential assessment in an assessment unit, was the normal basis for an assessment under section 38(6).  There was no restriction on what could be directed by the court.  Therefore it is suggested by solicitors and counsel for the mother and father that this can be an assessment because the court needs to looks and see how the child gets on in the placement with the maternal grandparents; and that that is an appropriate way of assessing the child and his relationship with the maternal grandparents.

19.	First of all, I am not persuaded that this is an appropriate assessment in the way that it has been put to me.  As indicated, I have had some difficulty in teasing out what the full basis of it is.  Certainly the grandparents are in the process of being assessed, but I need to go back to what the basis of this case is.  This is a child who suffered a serious injury or injuries in circumstances where it is likely to be found that it is a non-accidental injury, in circumstances where at present the parents are the only perpetrators and he is a child who is the subject, in those circumstances, and in the position of being under an interim care order for necessity, awaiting findings of fact.  I have some difficulty in justifying the assessment, and a value judgment on the viability assessment of the social worker, however attractive it might be, is not, in my judgment, an appropriate reason for assessing the situation.

20.	But I need to go on in the headnote in any event, accepting that the court would have the power to order a placement with the maternal grandparents for the purposes of assessment.  Subsection (2) of the headnote (and it appears at paragraphs 65 and 66 of the judgment, and the headnote quotes the paragraph there almost entirely): 

“It follows that section 38(6) enabled the court to direct an assessment in a family setting under the umbrella of an interim care order, although the court must first assure itself that a section 38(6) assessment was appropriate on the facts of the particular case and, importantly, that the particular assessment was not merely appropriate but also safe.  The court would also no doubt take steps to ensure that the assessment was appropriately monitored or supervised as it proceeded.  Such a placement could not be criticised as unregulated and therefore potentially unsafe, or as leaving the child in a legal non-man’s land.  It was a placement regulated by the court in accordance with a tightly-defined legal framework under the continuing control of the court.”

21.	This is a case where the basis and agreement or tight direction under which the court could promote the assessment is lacking.  I am not satisfied, for the reasons I have already given, that it is appropriate on the particular facts of the case.  I am not also satisfied, given the context to which I have just referred, that it is necessarily safe. I am not in a position at this stage to indicate to say that it could be appropriately monitored or supervised.   Although the court might be after the fact-finding hearing and further consideration, and consideration of something which could best be regulated by an original agreement -  Again I return to the proposition that this is something which the learned judge in that case, and in a much clearer context, indicated could be appropriately supervised.  Supervised means by the local authority under its duty under the interim care order.  In those circumstances, the circumstances in which the court could order a section 38(6) application, even if it were appropriately defined, are simply not met.

22.	I also had advanced to me an argument under section 8 of the Human Rights Act involving the question of the right to family life.  All the parties in this case have their rights touched by the matter, but I need to consider first of all that the regulations, as well as the Act itself, is human rights-compliant; and secondly, that I am not satisfied. That the child’s right to be kept safe, an important fact of his right to family life, even though it is very attractive to say that the matter needs to be dealt with urgently and perhaps, in a world where there were greater resources, would have been dealt with before.  

23.	So I am not satisfied that there is some kind of overriding Human Rights argument.  There certainly is none that enables the court simply to override the Children Act, or, I regret to say because it is understandable, an attempt to get round the regulations and the fact that the court is compelled to make an interim care order by making an application under section 38(6).  The key note remains the issue as to whether the child is safe and his life properly controlled.  

24.	I have no doubt that I need to dismiss this application in the interests of the child when matters are properly considered.  But I do urge the court, to those who follow me, to note that the cultural issues and indeed the viability assessment that appears to be accepted by the local authority to indicate that the maternal grandparents are likely to be regarded as suitable carers, to be a matter which indicates that these are matters which need to be addressed as a matter of urgency.  But that does not mean that the court is absolved from the task and duty to analyse the position correctly, and therefore I dismiss the application.

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