ON APPEAL FROM COVENTRY COUNTY COURT
MR RECORDER HARVEY
EY13C00254
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE KITCHIN
and
LADY JUSTICE GLOSTER
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M (A CHILD: LONG-TERM FOSTER CARE) |
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Ms Jane O'Reilly (instructed by Bate Edmond Snape Solicitors) for the 1st Respondent
Douglas Allen (instructed by Brethertons Solicitors) for the Children's Guardian
Hearing dates: 3rd October 2014
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Crown Copyright ©
LADY JUSTICE BLACK :
Background
i) M often locked L in her room by way of discipline which would have caused or risked causing significant emotional harm (§53);ii) M used cannabis, including to relieve stress, and that she associated with others involved in the drug culture (including those who threatened her prior to her disappearance) which impaired her ability to safeguard L from risks (§54 and §58);
iii) M's relationship with a man to whom I will refer as MB posed a risk for L (MB's criminal convictions include a conviction for rape but M did not believe that he was guilty of the offence and continued her relationship with him notwithstanding the fact that LA raised concerns about him with her and even after L was taken into care) (§35 and see also §58);
iv) On several occasions, M said to her sister that she could not cope with L and she asked family members to care for her, including shortly before police protection powers were invoked (§48).
The evidence before the Recorder
The grounds of appeal and submissions
Discussion
"This is a case where it will become apparent in 2 years or perhaps less whether M will be able to care for her daughter, when it is established if she will respond to therapy/treatment. If therapy and treatment is successful, M will be able to apply to discharge the care order. If, as foreseen by Dr Penny, there is a possibility, if not a strong possibility, that therapy fails (sic)…. LA can then make a fresh application for a placement order."
"I find that the particular needs of L for the present are for her to be cared for in a 'secure, warm and loving family that is able to meet all her needs' and, crucially, for continuing the existing and loving relationships with her birth parents by way of direct contact." (§72, my emphasis)
"I am also concerned that L will interpret being cut off from M as being a 'punishment' for having behaved wrongly…. "(§73)
"I do not think that this analysis [the guardian's analysis of the shortcomings of long term foster care] places sufficient weight on the importance of maintaining direct contact with her parents. It is an evaluation which does not explain why long term foster care 'will not do', to paraphrase, slightly, the words of Baroness Hale in a number of cases. I accept that foster placements may not be as stable or secure as adoption orders, but some succeed, just as some adoptions fail. There is no reason for the local authority to be unnecessarily intrusive in a long term fostering placement. She should be able to enjoy a relatively normal childhood, save that she would be seeing her birth parents during contact, rather than living with one or other of them." (§78)
"Again, there is no analysis of the option of long term foster care, with its benefits of continuing the strong bond between M and L and the possibility of return to her care if she successfully undergoes the therapy and other interventions."
"72. I agree with the guardian that [L's] particular needs involve a decision being made as soon as possible as to whether adoption is appropriate, because her age, at 3 ½, makes it more likely that transfer to an adoptive placement would be more likely to be successful now, rather than later. With respect, this starts to suggest an approach which would contrary, however, to the guidance given in Re B-S and the earlier, recent authorities referred to above (sic). The temptation in every case, where no-one from the birth families will be able to care for a child of 3 ½ in the relatively near future, will be to disregard alternatives to adoption because it is easier to find adoptive parents for younger, rather than older, children….."
"It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests." (my emphasis)
I emphasise the last phrase of that passage ("in her interests") because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.
LORD JUSTICE KITCHIN:
LADY JUSTICE GLOSTER: