COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION,
HULL DISTRICT REGISTRY
HIS HONOUR JUDGE JACK, SITTING AS A HIGH COURT JUDGE
LOWER COURT NOS: KH07P05855 & KH08A05091
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
MR JUSTICE CHARLES
| Re S-H (A CHILD)
|- and -
|KINGSTON UPON HULL CITY COUNCIL
- and -
Mr Stephen Cobb QC and Miss Taryn Lee (instructed by Hull City Council Legal Services) appeared for the First Respondents, the local authority.
Mr Geoffrey Hunter (instructed by Stamps, Hull) appeared for the Second Respondent, the father.
Hearing date: 2 May 2008
Crown Copyright ©
Lord Justice Wilson:
SECTION A: INTRODUCTION
SECTION B: THE BACKGROUND
"[T] presents as a very thin, severely underweight, very worrying child. He has now almost been in this foster home for a year and sadly has not made very much progress in terms of his growth and nutrition. I think it would be appropriate to review this placement."
"due to the lack of prognosis in terms of [T's] health, it will be very difficult to find such a placement."
Equally important is a conversation between the parents and the allocated social worker on 2 November 2007 in which, according to the latter's note, she informed them that:
"no plan of adoption would be pursued until [T] is thriving and no one knows how long that would be."
The note records the father's enquiry whether, were the mother to undertake psychotherapy, Hull might consider returning T to them. The parents contend, not inconsistently with the social worker's note, that in response she gave the impression that Hull would consider all options, including his return to them.
"the plan of adoption for [T] is no longer being pursued until he can thrive, as it would be unfair to any prospective adopters, [T] being placed with them and then being told that the placement is not the right one."
A new idea was suggested, namely that a home might be found for T with foster parents who, if all went well, might in due course be prepared to adopt him. Such quickly became Hull's plan. As a result of the meeting with the social worker on 2 November 2007, the mother had become so concerned about T and the uncertainty surrounding his future that she had re-instructed her solicitors, Williamsons, who began, by letters, to make pertinent enquiries of Hull. By their first letter in response, dated 19 November 2007, Hull told them that their plan was to identify a fostering placement with a view to adoption. Unfortunately four further letters from Williamsons between 22 November and 18 December 2007 went unanswered by Hull until 7 January 2008. Such was an unacceptable delay; and Hull's Legal Services Department needs to review its procedures for responding to letters.
"[T] … looks an emaciated … pale, grey, little boy and I remain extremely concerned about him.
I remain very concerned that the Local Authority has left him in his current placement, where he is clearly not thriving and has not thrived for the past 15 months. I do feel that [T] needs to be moved to a more appropriate home, who can better meet his needs.
I understand from the social worker that this is the plan but I think a greater degree of urgency needs to be injected into the situation. I do not think there is anything else that we can offer with the current carer and I have decided, therefore, not to offer any further appointments at the present time.
[T], however, does remain a patient under my care in terms of his failure to thrive and I would be happy to see him again if the situation regarding his current care changes …"
SECTION C: ANALYSIS OF THE JUDGE'S JUDGMENT
"I have to ask myself whether the local authority is failing to act as a reasonable parent. What could they be doing that they are not doing to promote [T's] welfare?"
The judge's answer was that:
(a) It was arguable that Dr Hobbs' views were perfectly logical.
(b) Hull had acted perfectly reasonably in questioning Dr Hobbs' views.
(c) The only significant criticisms of Hull were that they might not have reacted sufficiently promptly to Dr Hobbs' concerns about the present foster home and that they had been slow to provide the parents with information about T.
(d) Hull's current approach to T's future was in his best interests.
(e) The present proposal of a foster placement with a view to adoption would give T the best prospect of a secure and happy future.
(f) Hull's proposal to obtain a second medical opinion was reasonable.
(g) Hull were currently acting as a reasonable and diligent parent and any challenge to the care plan would be very unlikely to succeed. An application to revoke the placement order would therefore have no real prospect of success.
(h) Furthermore the delay which an application for revocation would cause to the implementation of the arrangements for T would potentially cause considerable harm to him.
"18. But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the Guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys' best interests, because their needs could better be met by the kind of substitute family found only in long term fostering. The generalised consideration that adoption would ideally be best does not, on these unusual facts, lead automatically to the conclusion that it was yet possible to say whether it was in the best interests of these boys. In those circumstances I am persuaded that the finding that adoption was in their best interests, and thus that a placement order should follow, was premature."
SECTION D: POSTSCRIPT
"Where a placement order is made in respect of a child and either –
(a) the child is subject to a care order, or
(b) the court at the same time makes a care order in respect of the child,
the care order does not have effect at any time when the placement order is in force."
My preliminary view is that the judge was correct to hold that, even though a care order referable to a child does not have effect while a placement order is in force in relation to him, he nevertheless remains "the subject of a care order" and so cannot be made a ward of court. In my view Parliament's contemplation, expressed in (b) of the subsection, that a care order might be made at the same time as a placement order and the fact that, were the placement order to be revoked, the effect of the care order would, without the need for any fresh order, revive (or begin, as the case may be) both militate in favour of an analysis that the care order continues in existence, albeit that its effect is suspended, during the subsistence of a placement order; and that the child remains the subject of it. Nor can I discern any reason of policy which might have led Parliament not to intend that the exclusion of children in care from the reach of wardship, being a core element of the structure of the Act of 1989, should not apply to children in relation to whom placement orders have been made.
Mr Justice Charles:
Lord Justice Pill: