The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of their family must be strictly preserved.
B e f o r e :
|PGO and FEO|
|- v -|
|Coventry City Council|
|- and -|
|- and -|
|- and -|
|LB and CB (by their Children's Guardian)|
Miss F Judd QC for Coventry City Council
Mr R Lewis for the children
The mother appeared in person
The father did not appear and was not represented
Crown Copyright ©
The children's history
Independent Social Work Assessment
'34. The children are well settled in placement and their attachment to the couple is clear. When discussing [their] motivation to adopt, it was clear that they truly love LB and CB and want what they consider to be the best for them. It is this depth of feeling that has spurred them on to this application…
'36. Given the couple's previous experience of parenting and of fostering and their previous positive fostering reviews, [they] clearly have an understanding of the needs of children who are Looked After and the difficulties often faced by their birth parents…'
(i) PGO's criminal convictions and the difficulties there have been in obtaining CRB checks.
(ii) PGO's past relationship with HJ and in particular her allegation that he was violent towards her.
(iii) PGO's lack of any meaningful relationship with the three children of his relationship with HJ and his failure to provide adequate financial support for them.
(iv) PGO and FEO's financial position generally and in particular the risk that PGO may have to pay substantial arrears of child support.
(v) PGO and FEO's ability to work in partnership with the local authority and other professionals.
The legal framework for fostering services
(1) The fostering service provider shall carry out an assessment of any person whom it considers may be suitable to become a foster parent, in accordance with this regulation.
(2) If the fostering service provider considers that a person may be suitable to act as a foster parent it shall –
(a) obtain the information specified in Schedule 3 relating to the prospective foster parent and other members of his household and family, and any other information it considers relevant…
(d) …consider whether the prospective foster parent is suitable to act as a foster parent and whether his household is suitable for any child in respect of whom approval may be given;
(e) prepare a written report on him which includes the matters set out in paragraph (4); and
(f) refer the report to the fostering panel and notify the prospective foster parent accordingly.
(4) The report referred to in paragraph 2(e) shall include the following matters in relation to the prospective foster parent:
(a) the information required by Schedule 3 and any other information the fostering service provider considers relevant;
(b) the fostering service provider's assessment of his suitability to act as a foster parent; and
(c) the fostering service provider's proposals about the terms and conditions of any approval.
(5) Subject to paragraph (6), a person shall not be regarded as suitable to act as a foster parent if he or any member of his household aged 18 or over –
(a) has been convicted of a specified offence committed at the age of 18 or over; or
(b) has been cautioned by a constable in respect of any such offence which, at the time the caution was given, he admitted.
(7) In this regulation 'specified offence' means –
(a) an offence against a child; …
(d) any other offence involving bodily injury to a child other than an offence of common assault or battery…
(2) A fostering service provider shall not approve a person as a foster parent unless –
(a) it has completed its assessment of the person's suitability; and
(b) its fostering panel has considered the application.
(3) A fostering service provider shall, in deciding whether to approve a person as a foster parent and as to the terms of any approval, take into account the recommendation of its fostering panel.
'4. Particulars of the children in his family, whether or not members of his household, and any other children in his household...
'13. … either
(a) an enhanced criminal record certificate issued under section 115 of the Police Act 1997 including the matters specified in section 115(6A) of that Act; or
(1) The fostering service provider shall review the approval of each foster parent in accordance with this regulation.
(2) A review shall take place no more than a year after approval, and thereafter whenever the fostering service provider considers it necessary, but at intervals of not more than a year.
(3) When undertaking a review, the fostering service provider shall -
(a) make such enquiries and obtain such information as it considers necessary in order to review whether the foster parent continues to be suitable to act as a foster parent and the foster parent's household continues to be suitable; and
(b) seek and take into account the views of -
(i) the foster parent;
(ii) (subject to the child's age and understanding) any child placed with the foster parent; and
(iii) any responsible authority which has within the preceding year placed a child with the foster parent.
(4) At the conclusion of the review the fostering service provider shall prepare a written report, setting out whether
(a) the foster parent continues to be suitable to act as a foster parent and the foster parent's household continues to be suitable; and
(b) the terms of the foster parent's approval continue to be appropriate.
(5) The fostering service provider shall on the occasion of the first review under this regulation, and may on any subsequent review, refer its report to the fostering panel.
22.1 The fostering service is a managed one which provides supervision for foster carers and helps them to develop their skills.
22.3 Each approved foster carer is supervised by a named, appropriately qualified social worker and has access to adequate social work and other professional support, information and advice to enable her or him to provide consistent, high quality care of a child or young person placed in her or his home. The supervising social worker ensures each carer she or he supervises is informed in writing of, and accepts, understands and operates within, all standards, policies and guidance agreed by the fostering service.
22.6 Supervising social workers meet regularly with foster carers. Meetings have a clear purpose and provide the opportunity to supervise the foster carers' work. Foster carers' files include records of supervisory meetings. There are occasional unannounced visits, at least one each year.
PGO's criminal record
'Mr D was asked about the police checks, which he confirmed are back and are clear. PGO has completed another CRB form in his previous name, which they are waiting on.'
Given the fact that PGO had disclosed his conviction and imprisonment for an offence of wounding, the Fostering Panel's approach to this issue would seem to have been remarkably casual. I am satisfied that at the time of PGO's approval as a foster carer the local authority did not have before it formal confirmation of the full details of his criminal record.
PGO's relationship with HJ
'Following the Part 8 enquiry in Brighton and Hove in 2001, taking up a reference about a prospective adopter or foster carer from an ex-partner where there has been a child living, has become standard social work practice. I cannot account for why this was not done in 2003/4 when PGO and FEO first made application to foster given that PGO had disclosed that he had a further 3 children…'
The reference to the 'enquiry in Brighton and Hove' is a reference to an Area Child Protection Committee report published in October 2001 following an enquiry into the death of an adopted child as a result of abuse by his adopters. Amongst its findings the enquiry report was critical of the fact that in the course of approving the prospective adopters local authority social workers had not interviewed the prospective adoptive father's former wife.
(i) that on 14th February 1990 PGO kicked and smashed a mirror;
(ii) that soon after that first incident there was a second incident in which PGO threw her against a wall causing an injury above her right eye and had then hit her in the face causing an injury to her left eye
(iii) that on another occasion in the 'spring of 1990' he grabbed her by the hair, tried to drag her out of the house and then put a gun to her head.
HJ claims to have sought the assistance of the police as a result of these incidents. After the third incident she sought refuge at a women's refuge.
PGO's relationship with his three older children
'been able to verify that HJ's four daughters, three of whom were the children of PGO were receiving respite care with a foster carer…I have been unable to verify the details as the files no longer exist.
I have been able to verify that at the time that the family were receiving services of support…PGO's mother looked after the children whils (sic) HJ was in hospital. This was with the knowledge of Social Care. HJ maintains that [PGO's] family knew that the children were receiving services from social care.'
'Aged around 20 PGO began a relationship with a…woman who already had a child. Three more children were born whilst they were together. Two of whom PGO accepts were his and one whose parentage was in question…PGO did not persue (sic) the matter [of contact] through the courts as he felt it would not be helpful to the children. I spoke with PGO in depth on two occasions about the previous relationship and his position re the children of that relationship. At the time he felt powerless to push the issue of contact. He now has his family life and although FEO and PGO talk about, and agree that one day the children of that relationship will want to see him and they will have to tell C and N about them, he does not know how he will react. PGO feels sure that R, S and T seeing [him] would not be something their mother would encourage or allow during their childhood. He believes they will have been "turned against him". The children do not have any contact with him, none is planned and I have not endevoured (sic) to seek their view.'
'I am concerned that PGO, having offered little parenting to his own three children from his previous relationship with whom he has no contact now seeks to adopt a further two children. What message does this give to both his birth children and to the adopted children who may also query why their birth parents are not bringing them up?'
Mrs Lilly has met with HJ and with her children. She reports that his older children feel as if he has never been interested in them.
'that PGO has lost sight of the needs of his children in this dispute and he showed no empathy regarding any financial difficulties they may have experienced during their childhood…PGO considers that there is hope that he will be reconciled with his daughters at some point. He places responsibility on HJ for influencing and poisoning his daughters against him. There is probably some truth in this view, but it saddens me to report that PGO shows only minimal empathy and emotional regard for the situation that his daughters have found themselves in…Their childhood difficulties including time in foster care will have undoubtedly had an impact upon them and PGO presents as disassociated from that situation. I acknowledge that he may have put himself off from any reflection as it is too painful.'
PGO's financial support for his three older children
PGO and FEO's financial position
'The family endeavours to go on holiday to Florida each year. PGO researches, books and organises where, and when they will go…PGO deals with the finances of the home and describes a comfortable but not extravagant financial position…'
In their oral evidence both PGO and FEO deny saying that they have been to Florida each year. They say that they have been misreported. They say they have only had three foreign holidays in the last sixteen years. However, I note from the minutes of the Fostering Panel meeting on 19th April 2004 that in discussion with PGO and FEO one member of the Panel
'noted that they went to Florida every year and began to explain the department may not be able to provide funding. PGO replied that he would not expect the department to pay – if they were allowed to take a foster child.'
PGO and FEO's relationship with the local authority
Fostering Service Provider's Annual Reports
Criticisms of PGO and FEO's performance as foster carers
'The current placement social worker felt that given that these carers are new carers, they have done remarkable (sic) well with these children and have coped really well with birth family attitudes towards them and have worked professional (sic) in terms how they approached issues.'
'PGO and FEO, continue to offer a good resource for younger children to Children & Families Placement Service. They have managed two sets of siblings and although I am aware there have been some difficulties, they have offered stability to the children in placement.'
I deal with the 'difficulties' referred to later.
'Helen has passed me your recent Foster Home Review. It is evidence that you continue to provide skilled and effective care to Coventry's Looked After children. I was pleased to read that you continue to advocate for the children placed with you and that you have welcomed the support of Helen during this year.'
'The carers have shown they are flexible and committed to helping looked after children as shown in the compliments they have received.'
'It appears that the concerns raised by the Social Worker are totally unfounded. A meeting on 25/07/06 with District workers & FPS workers including managers found that there was no finding of facts.'
The same issues, relating to the same social worker, were considered again in the 2009 annual review. The response was the same. The review notes
'Many petty complaints about the care of the children and the discontent of the SW in relation to communication and what she perceived as non-compliance with the rehab programme…Each issue was investigated and treated in accordance with its low priority – nothing was found to be true or tangible in terms of the carers not meeting the needs of the children or meeting fostering expectations…'
'On reviewing the files of PGO and FEO, Local Authority records indicate concerns were previously raised by professionals in March 2007 when a sibling group of two boys were placed with the carers'.
The boys concerned were the S children. Ms G went on to outline the concerns of the children's social worker. She makes no reference to the fact that in the Foster Home Reviews for 2006 and 2009 the local authority's fostering services team record that these concerns had been investigated and judged to be unfounded.
'50. There have been historical concerns about FEO's ability to work with adoptive parents, following the placement of two boys with adopters prior to CB and LB being placed with her. The introduction period with the adopters was interspersed with complaints from FEO that were not significant to the adoption.'
'FEO and PGO provided a placement for X and Y for over 2½ years. The children came with lots of issues and no boundaries and their foster carers were able to provide them with a stable and happy placement. The couple were both very attached as was (sic) their own children to X and Y. Despite their attachments to the boys they were able to facilitate their move to their adoptive placement in a professional manner. Similarly FEO and PGO were able to positively assist Z to move to a placement with family and friends.'
In her oral evidence Mrs C accepted that, so far as concerns this particular issue, her written statement was inaccurate and misleading.
'informed me that she had neither seen nor heard from FEO in several months. She was very concerned that, given the concerns about LB's speech and behaviour and about CB having what appeared to be a persistent urine infection; FEO had not contacted her to discuss the concerns.'
During the course of this hearing the local authority has belatedly filed statements by the health visitor setting out her contact with the children. Her evidence does not support the assertion made by Mrs C.
Concerns about PGO's aggression
'The carers are able to work as part of a team and they have certainly worked well with FPS in the last year. I feel that we have established a good working relationship'
Under the heading 'Communication skills' the review notes that
'Both carers communicate well with professionals, parents and children…'
And under the heading 'Working with other professionals and agencies the review states that
'The carers have established good professional relationships with colleagues, professionals and other agencies.'
PGO and FEO's care of LB and CB
PGO and FEO's interest in adopting LB and CB
'Setting aside the disputed accounts of the decision making around the adoption plan for the children, what PGO and FEO did in stopping the children moving from their care at the last minute was a drastic step and one which has no doubt left it's mark on the children in ways that we are not yet aware. I have tried to talk to FEO and PGO about what impact this may have had on their subsequent behaviour but am unsure how much they were willing to hear.'
She said that she is not convinced that they genuinely took the children's needs into account when they made their application to the court. The guardian shares those views.
The guardian's assessment
'PGO and FEO maintain that concerns about them as foster carers only became pertinent after their Adoption application in March 2011. I have some sympathy with this viewpoint. The couple have been foster carers for seven years and they have cared for a lot of children. There have been concerns expressed about them in the past but the Local Authority has not acted upon any concerns. The annual fostering review that I have read certainly does not give the impression that there were significant concerns about PGO and FEO. It has to be highlighted that there are also very positive comments about them on file.'
Transferring the children's attachments
 The core principle was, I believe, stated by the European Court of Human Rights in Lebbink v The Netherlands  2 FLR 463, at :
'The existence or non-existence of "family life" for the purposes of Art 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.'
'83. Article 8 guarantees, inter alia, "respect for" private life, family life, and one's home. Whether or not "family life" exists depends upon the facts and the real existence of close personal ties: K and T v Finland  2 FLR 707. In the words of Munby J. in Sheffield City Council v S  EWHC 2278, "in our multi-cultural and pluralistic society the family takes many forms…The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family. But – and this is the point - the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life." It is well established that relationships between children and foster parents or carers fall within the definition of "family" within the meaning of Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, and such a relationship does not come to an end when a child reaches the age of majority: Sheffield City Council v S (supra).
 …social and psychological parenthood[is] the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase 'psychological parent' gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (Free Press, 1973), who defined it thus:
'A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.'