England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM [A] COUNTY COURT AND FAMILY COURT
(HHJ YELTON)

		Royal Courts of Justice Strand London, WC2A 2LL
		20 September 2016

1. LADY JUSTICE KING: This is an appeal of an order made by His Honour Judge Yelton at the [A] Family Court on 28 July 2016 whereby he granted an interim care order in favour of the [A] County Council in respect of two children; NL born [on a date in] 2001, (15), and PL born [on a date in] 2005, (11). By virtue of the making of those interim care orders, NL, in accordance with her wishes, is to remain with the foster carers with whom she is presently living. PL, however, continues to live at home as he has always done. The intention of the local authority was to remove him from home and place him in foster care once an appropriate placement could be identified.
2. Permission to appeal was granted by Macur LJ on 16 August 2016. The simple issue is whether the judge was wrong in making the order which led to PL's removal from home, in circumstances where not only was there no care plan before the court, but the anticipated difficulties in finding a foster placement which could cater for PL's accepted particular difficulties were such that the judge felt compelled to make provision within his order that the interim care order:

"Shall not come into effect until a suitable placement has been identified by the local authority that can accommodate PL on a longer term basis."

Background

3. The short history I give should not be thought to reflect in any way the very substantial history found in the chronology in the papers filed in the case. The family comprises the parents and their four children. AL is 18. J is 17. NL and PL, as indicated above, are respectively 15 and 11. The local authority has had significant involvement with the family since at least 2009. Concerns have centred around not only the home conditions themselves, but also mental health, supervision and guidance issues. There has also been considerable concern over the children's behaviours each to the other.
4. The father, himself, has complex needs both psychologically and physically. He is reported as suffering from Asperger's syndrome and he is in a wheelchair. He has been living in a shed in the garden of the family home for a number of years. It seems he spends little time with the family and has some form of intercom system to call into the house when he wishes to communicate with the family. Autistic traits, it would seem, are prevalent within the family. Whilst no formal diagnosis has been made to date in respect of PL, the guardian observes such traits in PL and it seems to be tacitly accepted by all the parties that this is indeed the case.
5. The children were made the subject of child protection plans in 2010. The family underwent a residential assessment in 2011. No care proceedings were issued. In 2012, the disabilities team became involved and remained so until 2014. The case was closed again in November 2015. In 2014, A was voluntarily accommodated as a result of his violent behaviour in the home.
6. NL has expressed a wish to transition gender. She, but I will from now on refer to her as "he" in accordance with his wishes, asked to be accommodated because of the home environment. He did not feel supported by the family after he had expressed a wish to transition his gender. He was, accordingly, accommodated on [on a date in] 2016. JL, for his part, continues to live at home, but would like occasional weekend breaks rather than a lengthy period of time away from home. The trigger for the local authority's current involvement was an allegation made by NL that AL had sexually abused her when she was between the ages of 10 and 13.
7. It is common ground that expert assessment of this complex family is required. An expert has been identified to carry out the work. In particular, the issue of autism throughout the family will be considered. An assessment is clearly of the first importance, given that the local authority's current position is that PL's particular difficulties, which include socially inappropriate behaviour which have resulted in him on occasion being exclude from school for a day or two, can be managed by way of strategies and routines, which are not being implemented by the parents. Clearly, autism cannot necessarily be managed in such a straightforward way.
8. The guardian, who has had the opportunity of visiting the family and seeing PL in his home environment, regards the assessment as being:

"Crucial in my opinion when making decisions about not only the long-term future of the family as a whole, but also in respect of PL's immediate needs in respect of any placement should this be deemed necessary."

9. The guardian provided a helpful report for the use of the court in respect of the application. She regarded, as Mr Crosthwaite on behalf of the local authority reminded me this morning, the decision as being finely balanced. She said:

"Leaving P within the family home exposes him to the ongoing risk of significant harm. The concerns are chronic in nature. There appears to be no imminent or immediate risk to P, which would be the usual trigger for proceedings to be issued."

10. The guardian concluded that PL's safety does not require interim protection by way of immediate removal from the family home, but rather recommended that an interim supervision order be made and that, in the event that the situation deteriorated further, the matter can be returned to court.

The judgment

11. The judge, having found the threshold conditions for the making an interim care order had been met, set out the approach to be taken by the court where the consequences of the making of the interim care order would be the removal of the child from his or her home. He said at paragraph 10:

"... I remind myself that although the threshold conditions in my judgment are very clearly met in this case, I should not make an order removing a child under an interim care order unless there is an immediate imminent risk to his or her safety and the test can be put in several ways, but that is as clear a way of putting it as I can and that is set out in a number of cases in the Court of Appeal."

12. The judge rightly considered each of the children individually. The judge noted that an assessment was to be carried out and went on to identify the issue as:

"Whether or not I should remove PL from the extraordinary but familiar conditions in which he has been brought up for the time being."

13. The judge noted the guardian's view as to PL's autistic traits, but noted that no diagnosis had yet been made. He went on to say:

"What is clear from his exclusion from school on occasion is that his behaviour has been pretty extreme. It is unusual for primary school children to be excluded from school and what is clear is the home conditions and circumstances in which he has been brought up have not helped many of his problems."

14. The judge then went on, having noted that the guardian was of the view that PL should not be removed from the family home, saying at 13:

"... In the end, I have concluded that an interim care order should be made in relation to PL. It seems to me that the local authority have failed to intervene on previous occasions when they should have done. The situation has deteriorated over the years with all three of the elder children. So far as PL is concerned, there are clear signs that it is deteriorating in relation to him as well and I take the view that the very high test set out in cases is met in this case and that it would be unfair to the child to allow him to remain in these circumstances for the succeeding five months or thereabouts. I consider that to allow him to remain would compromise his safety in the widest sense of the word and would not be in his best interests. I also consider that the making of an order would be proper interference with family life."

15. The judge, having indicated his decision, noted that he had taken into account the fact that there was evidence that PL is autistic and that that may result in it being more difficult for him to adjust to foster care than would otherwise have been the case. The judge appears to counter that by the fact, seeming to regard it as relevant, that when NL was removed she told the guardian that she had not realised how nice it was to be living in "a proper house". PL, the judge said, is not being properly cared for at home and his behaviour at school has been markedly affected.
16. The local authority told the judge that, despite the fact that they had issued proceedings with a view to the removal of PL as long ago as 23 June 2016, they had still only been able to identify a 72-hour foster placement for him. The judge, rightly, regarded it as wrong to put PL in such a placement. The judge therefore said:

"It seems to me that the interim care order should not take effect until there is available for this boy a long-term foster care placement that would cater for the particular difficulties that he has, which are unusual and are multiple."

17. It should be remembered, as noted above, that the guardian regarded the completion of the assessment including, PL's diagnosis, as crucial in respect of PL's immediate needs in respect of any placement and not only in relation to his long-term needs.

The appeal

18. There are seven grounds of appeal. Macur LJ regarded three of those grounds as having a real prospect of success; namely, ground three, the learned judge erred in making an interim care order sanctioning removal in the absence of any viable care plan being before the court and, ground four, the learned judge erred in concluding the situation had deteriorated. Ground of appeal goes on to assert that, "so far as P is concerned, there are clear signs it is deteriorating and a very high test for removal is met and that it would be unfair to the child to allow him to remain in those conditions for the next five months". Ground five asserts that "the learned judge erred in concluding that the test for removal was met and in attaching insufficient weight to the children's guardian's recommendation that PL should remain at home under a supervision order during the course of proceedings".

The law

19. The question of in what circumstances a child should be removed from his or her home under an interim care order has been a topic which has been subject to considerable judicial consideration and debate in recent years. The judge in his judgment identified the test concisely as being whether there is "an imminent risk to his or her safety". Later in the judgment he clarified that he was interpreting "safety" in the widest sense of the word. It is not necessary for the purposes of this brief judgment to rehearse the various authorities.
20. Most recently, in L (A Child) [2013] EWCA Civ 489 Black LJ helpfully pulled together the various authorities, most particularly weaving together what some practitioners have regarded as disparate threads within those authorities. She summarises the authorities at paragraph 38 through to paragraph 42 of her judgment. In the course of that judgment, Black LJ referred back to the case of Re GR(Care Order) [2010] EWCA Civ 871, a case in which she had considered the approach to the welfare analysis of an application for an interim care order and, in particular, in so-called chronic neglect cases. At paragraph 39 therein Black LJ re-emphasised:

"The very high standards which a local authority must meet in seeking to justify the continued removal of a child from home."

21. Black LJ examined aspects of harm and risk, which are not associated with physical safety, endorsing what was in that case a recorder's conclusion that various emotional and educational issues had been insufficient to require the separation of the children in question from their parents. Black LJ said at [43]:

"This was a view that was open to him not least in light of the fact that the local authority had not intervened over the issues such as this over many years and it would seem were only ultimately provoked to take care proceedings by the physical risk which they considered to have been revealed by the events of 18 February 2010."

22. To put it in a more general context, Black LJ [61]:

"The discretionary exercise that had to be carried out in this case was a delicate and difficult one. That is often so where an application is made for an interim care order and not least when the application comes when care proceedings are finally launched after a very long history of difficulties. Into the balance must come not only the harm that may befall children in their home, but also the harm that may be occasioned to them by removal from home."

23. The parents' submission is that the local authority failed to meet the test necessary for removal and that this is one of those cases of alleged long-term chronic neglect where, as was recognised by the guardian, no matter how unsatisfactory that state of affairs may be there is no imminent or immediate risk to PL justifying his removal from home.
24. The parents also have permission to appeal in relation to their ground that the judge had erred in making the order sanctioning removal in the absence of any viable care plan being before the court.
25. The local authority in their skeleton argument rightly draw the court's attention to the statutory provisions in relation to care plans. By section 31A of the Children Act 1989 provision is made at 31A(1):

"Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan ('a care plan') for the future care of the child."

26. Subsections (2), (3) and (4) have no relevance to this case, but subsection (5) provides:

"In section 31(3A) and this section, references to a care order do not include an interim care order."

27. It follows, therefore, that there is no statutory requirement for a care plan to be put before the court in an application for an interim care order. With respect to the local authority, to rely on that provision for justification for the making of the order made by this judge might be regarded as somewhat disingenuous. In considering the making of an interim care order, PL's welfare is paramount. Whilst there is no statutory requirement, and it would undoubtedly be premature in many cases to file a care plan which complies with the stringent conditions now found in section 31A and the Family Procedure Rules 2010, nevertheless, in order for the court to conduct its welfare analysis it is essential that the judge has adequate information in relation to the local authority's proposals for placement, particularly where, as here, a child has particular difficulties or presents particular challenges. A judge must be aware of the viability of and timescales for identifying such a placement.

Discussion

28. The central issue in this so-called chronic neglect case is whether the situation had reached a stage where PL's safety required the interim protection sought by the local authority.
29. In my judgment, the judge fell into error in concluding that the test had been satisfied on the evidence available to the court, notwithstanding the undoubted, legitimate concerns in relation to PL. The evidence before the court did not reveal any imminent or immediate risk to PL necessitating his removal from the only home he had ever known. The judge in his judgment appears to base his conclusion in part on the fact that the local authority had failed to intervene on previous occasions, with the consequence that the situation had gradually deteriorated over the years. So far as PL is concerned, the judge simply said:

"There are clear signs that it is deteriorating in relation to him at all."

30. On that basis, he states himself to be satisfied that the test is satisfied. The judge said that he had taken into account difficulties in adjusting if PL is indeed autistic before delaying the implementation of this order until an appropriate foster placement could be found. The judge dealt with the matter on submissions only. The local authority evidence was contained in a document dated 14 June 2016. In that document, the local authority confirmed their longstanding concerns and that the precipitating incident had indeed been NL's allegation against her brother.
31. The chronology records two incidents at the beginning of 2016 when PL was excluded from school, respectively for a half day and a day and a half, for hitting another pupil. The narrative of the report notes that the children's attendance at school is good and that the mother attends all meetings and keeps all appointments with professionals. There is a reference to her being "overwhelmed" as she is, effectively, a single parent caring for the father in his shed in addition to caring for the children. In relation to the current position, the document says:

"The unit is concerned that despite years of intervention and support there is no sustained change in the way the parents are parenting, the home conditions and the behaviours that the children are displaying. As the children get older, they are displaying increasingly worrying behaviours and it is felt that these will continue to escalate if they are not believed that they are listened to by the professionals and their needs continue to be unmet."

32. There are references too in the report to Asperger's syndrome affecting the father, JN and AL. It was against this analysis that under a heading "The proposed section 30A plan - the early permanence and contacts plan" the local authority conclude:

"Given the ongoing risks and poor prospects for change, the local authority considers that JL, NL, and PL are at risk of further significant emotional harm and for NL sexual harm and emotional, physical and developmental neglect if they remain in their parents' care. Mr and Mrs L will struggle to manage the stress of care proceedings and the children should not be in their care for the duration of the care proceedings."

33. There is no further analysis or evidence which would form the basis for concluding that PL's safety demanded immediate separation. It follows, therefore, that in my judgment the judge erred in concluding that an interim care order should be made providing for the removal of PL to foster carers.
34. There is, however, a further aspect to the case which requires consideration. It would appear to be common ground that P, notwithstanding the absence of a diagnosis, has significant autistic traits. It was in recognition of the very considerable challenges such a child presents to foster carers and also the potential initial damage caused to such a child by any dramatic change of his personal circumstances which no doubt led the guardian to express the firm view that the psychological assessment of the family was crucial prior to the local authority making any decision in respect of PL's immediate needs in respect of placement.
35. In my judgment, in order for the judge to balance the longstanding issues in relation to this family the court needed to be in a position to evaluate the risk of distress and emotional damage to P which would be caused by his precipitate removal from his family. Further, the court would need to be satisfied before making that decision that a placement was achievable and which could cater for what the judge himself referred to as PA's "unusual and multiple needs."
36. In my judgment, the judge was wrong to make what amounted to a suspended removal order, as not only was there no evidence that the local authority would be able to identify an appropriate placement, but, more than that, the judge wholly failed to take into account the guardian's understandable view that absent the psychologist's assessment in relation to PL's autistic traits the local authority were not in a position adequately to identify such carers or properly to equip those carers with the information and understanding of PL they would require if they were to cope with his significant difficulties and the inevitable distress he would suffer being removed from the care of his mother.
37. The issue, therefore, is not the absence of a formal care plan. Neither is it a case where the court could be seen to be trespassing on the territory of the local authority in respected of identifying a foster placement, but rather it was a critical part of the balancing exercise for and against the making of an interim care order.
38. In those circumstances, I would allow the appeal against the making of the interim care order which will be discharged and instead an interim supervision order will be made until such time as the matter goes back before the Family Court.
39. LORD JUSTICE UNDERHILL: I agree.