England and Wales Family Court Decisions (other Judges)

CASE No: LK13CO1410

IN THE FAMILY COURT AT LEICESTER

 

 

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down on 16^th June 2014)

 

 

 

 

Re P (A Child: Assessment of Kinship Carers)

 

 

 

 

Miss Victoria Hodges for the local authority

Mr Mark Roscoe for the mother

Miss Hari Kaur for the Children’s Guardian

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any 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 his family must be strictly preserved.

 

JUDGE BELLAMY:

1.         Leicestershire County Council (‘the local authority’) applies to the court for a care order and a placement order in respect of a little boy, P. P is 3 years old. His mother is AB. The mother opposes the local authority’s applications.

2.         The mother has identified P’s father as RN. RN does not have parental responsibility for P. Though not a party to these proceedings, RN is aware that he may be P’s father and that these proceedings are taking place. At a case management hearing in December 2013 an order was made for DNA tests to be undertaken in order to establish whether RN is, in fact, P’s biological father. RN refused to provide a sample for testing. He has not engaged with the local authority. He is presently serving a term of imprisonment.

The background history

3.         The mother was aged 14 when P was born. She is now aged 17.

4.         AB and her siblings first came to the attention of Leicestershire Child Abuse Investigation Unit in 2000. AB was then aged 3. It was at about that time that her parents separated. Her father left the family home. AB and her younger sister, CP, remained in the care of their mother.

5.         Both of AB’s parents accept that there was domestic violence in their relationship.  It is clear that AB and CP witnessed some of that violence.

6.         In 2009 AB came to the attention of the police. In May 2009 she received a reprimand for common assault. Soon after, she received a warning for a racially motivated public order offence and a warning for anti-social behaviour. In June 2010 she received a reprimand for shoplifting. Since 2010 she has been convicted of seven offences including five offences of violence,

7.         In November 2010 AB’s parents informed her school that she was pregnant. The school made a referral to the local authority. A core assessment was undertaken. The case file was closed in August 2011. P was then two months old.  The next month a second case file was opened. A further core assessment was undertaken. This second case file was closed in December 2012.

8.         In January 2013 the mother was in a relationship with DC. There was a violent incident between them in which the mother sustained bruising. Once again a referral was made to the local authority. An initial assessment was undertaken. The mother was assisted to move to specialist supported accommodation for young people. This third case file was closed in February 2013.

9.         It was not until July 2013 that the local authority became seriously concerned about P’s welfare. The manager of the mother’s supported accommodation contacted the local authority to express concern about her behaviour and about threats the mother was receiving from known drug dealers. This led to an initial child protection conference held on 30^th August 2013. It was the unanimous decision of the conference that P should be made the subject of a Child Protection Plan under the risk categories of physical and emotional harm.

10.     Concerns in respect of the mother’s lifestyle and parenting continued. There were concerns about her drug abuse, about her leaving P alone in her flat, about unknown third parties entering her flat and about P’s poor attendance at nursery.

11.     A review child protection conference was held on 20^th November. The decision was made that a pre-proceedings meeting should be convened. That meeting was held on 22^nd November. The local authority decided to issue care proceedings. It was also decided that the mother should be offered the opportunity to go with P into a mother and baby foster placement. The mother accepted that plan. She and P moved into the placement on 29^th November.

12.     Initially the placement worked well. However, by January the foster carers were expressing concern that there were times when the mother returned to the placement apparently under the influence of drugs. Although the mother was allowed time out of the home with P she was not keeping to the specified times. On one occasion she was out all night. She said that she and P had stayed at her mother’s overnight. There was also an incident in which P suffered burns to his hand after holding his mother’s hair straighteners. The burns were the result of lack of adequate supervision, not of deliberate harm.

13.     On 11^th February 2014 the local authority concluded that the placement should be terminated. The mother was asked to leave. P has remained in this foster placement.

14.     It is against that background that the mother concedes that the threshold set by s.31(2) Children Act 1989 is satisfied.

Assessments of the mother

15.     Concerns have been expressed about the mother’s capacity. A cognitive functioning assessment has been undertaken by Dr Helen James, a consultant clinical psychologist. In her report, completed in March 2014, Dr James advises that the mother,

‘generally functions across the Borderline and upper end of the Learning Disability range. Exactly whereabouts in this range she is functioning at any given time will depend on her attention levels and motivation, her mood, and whether she has been using any drugs…This level of ability is consistent with the descriptions in the various reports of the difficulties AB experiences in caring for herself, and maintaining an appropriate domestic environment. While [in supported accommodation] she continued to need a significant level of support from staff. In her Foster Placement, she was able to benefit from the level of support available, but was unable to sustain progress when prompting was reduced and she was expected to take more responsibility for her own care and that of P.’

 

16.     Between November 2013 and February 2014 the local authority undertook a full parenting assessment of the mother. The author of that report arrived at the following conclusions:

‘ABhas shown she is able to listen to advice and to understand what is being said to her. She can implement advice and understands that providing P with consistent routines and boundaries causes his behaviour to improve. She clearly has the ability to make positive changes in the way she parents him and has demonstrated doing this during the course of this assessment.

However, AB has struggled to maintain the changes she has made to her parenting on a consistent basis. She struggles to be a young mother with responsibilities to fulfil on a daily basis to P. She remains a teenager with her own needs. Even in the supported environment of the mother and baby foster home, she has been unable to put P’s needs first on a consistent basis. She has struggled to maintain her bedroom; to prioritise his need to be dressed and fed in the morning; to ensure that he is kept safe and to make him her priority rather than her social life…

At this point in time, I am unable to recommend that P returns to her care. I do not feel confident she will be able to be consistent with P’s routines and behaviour strategies. I also have concerns about her ability to keep his (sic) safe from some of her associates.’

 

Maternal grandfather and his partner

17.     The mother puts forward her father, GF, and his partner, MR, as alternative kinship carers for P. Following a positive viability assessment the local authority undertook a full kinship assessment. That assessment was negative. The assessment raises a number of areas of concern.

Family relationships

18.     GF’s relationship with MR is his fourth long-term relationship. His previous relationships have been with DE (by whom he has a daughter, Z), NP (by whom he has a daughter, K) and LC, the mother of his two youngest daughters, AB and CP.

19.     GF and LC separated when AB was around 3 years old. For most of the time after their separation AB remained in the care of LC. Their lifestyle was chaotic. As AB describes it, LC was a drug user, associated with risky adults and lived an unsettled lifestyle. AB has disclosed that she was physically abused by LC.

20.     GF had regular staying contact with AB and CP alternate weekends. When she was around 12 years old the mother went to live with GF and MR. She stayed with them for around two years. She then returned to live with LC. It was after her return that she first became involved with the police. It was also soon after her return that she became pregnant.

21.     In her oral evidence the mother described herself then as being a ‘very destructive, mouthy teenager unwilling to accept help’. She did not appear to be able to make the link between her own behaviour and the parenting she had received from GF and LC. In its final threshold document the local authority asserts that the mother ‘has a history of experiencing poor parenting and lacks positive role models’. Although I was told that that document is agreed, in her oral evidence the mother said that she does not accept that her father’s parenting of her had been poor. She said that he always provided boundaries.

22.     Although the mother now speaks positively about GF’s parenting, she has in the past given a rather less glowing account. The core assessment completed in November 2011, when P was five months old, records that the mother,

‘is frustrated that her dad, angry with her being pregnant, has not been in regular contact with her. [She] does not get on with his partner which she feels may be part of the problem. AB and LC have stated they do not want GF to be a part of the work we undertake with the family’.

 

23.     Whereas AB remains in contact with GF her sister, CP has chosen not to remain in contact with him.

24.     The relationship between AB and MR has at times been a difficult relationship. AB appeared to accept that that had been so historically but said that they have not had an argument for more than three years. She says that they now have a good relationship. She said that MR ‘has done a lot more for me than my own mother’.

25.     In her oral evidence MR expressed concern that GF prioritised his relationship with AB over his relationship with her. She said repeatedly that AB would ‘twist him round her little finger’. Although she sought to persuade me that her relationship with AB is now a positive relationship, I did not find her reassurance convincing.

Domestic violence

26.     As I have already noted, there is evidence of domestic violence in GF’s relationship with LC. In November 2011 the core assessment noted that ‘LC reports past domestic violence to herself from GF’. The viability assessment of GF and MR notes that GF ‘reports that the relationship was very volatile and there was DV within the relationship’ and goes on to record that,

‘GF informs that there was Domestic Violence within his relationship with LC…GF stated that he was a different person back then in his mid 20s and he was involved in drug use, along with LC.

On the 13/11/1999 GF caused damage to his partner LC’s address; following an argument he smashed a door and banister railing.’

 

27.     There has also been domestic violence in the relationship between GF and MR. On 19^th January 2006 GF called the police. An argument between himself and MR got out of hand. He punched her to the left side of her face, knocking out two of her teeth. He was arrested and charged with assault occasioning actual bodily harm. He was bailed to a different address. He was subsequently convicted. Over the course of the next seven years the police have been called out on five further occasions as a result of domestic incidents.

28.     The police records of a call-out on 23^rd September 2006 suggest that the aggression in the relationship between GF and MR has not been all one way. The police record of the call from GF states,

‘I’m having DTS with my Mrs she has lost it she is drunk and throwing things about. Can you help. I have done the right thing by ringing you because I have been done for this sort of thing before.’

 

MR admits throwing things around on this occasion, though she says that she was not throwing them at GF.

29.     The most recent police call-out was on 13^th February 2013. With respect to this incident the police records state:

‘Female has posted nasty messages on Facebook about the suspects (sic) family which has annoyed him. The female alleges that he has reacted to this by grabbing her around the neck but she has no injuries to support this and is not willing to pursue a complaint. He states that he has got wound up by the post, but strongly denies assaulting female…She intends to end the relationship.’

 

MR now denies that there was any violence. Although GF claimed that he could not recall what these ‘nasty messages’ were, he remembers that MR had called the mother ‘a slag’. MR said that this comment had been directed at LC not at AB.

30.     In his oral evidence GF said of his relationship with MR that ‘we are a very happy couple’. I am satisfied that that statement is not accurate.

Alcohol

31.     It is clear from the police records, and GF and MR accept, that alcohol has featured in all six police call-outs. With respect to the first of those incidents the investigating officer reports:

‘Attended the address and spoke to MR who stated that she and her partner GF had been in [the pub] since approximately 17.00 hours during which time she had consumed 3-4 pints of cider and GF 3-4 double vodka and cokes. On their return home at approximately 21.30 hours they have started to discuss how much money they have spent. This has turned into an argument and GF has become angry…’

 

32.     For the purpose of the assessment of GF his medical records have been produced and an Adult Health Check has been completed. There are two references to his alcohol use in his medical records. In July 2003 the records note ‘alcohol 7 units/week’. On 4^th May 2010 a note records ‘alcohol consumption 63 units/week’. GF could not understand where that last figure had come from. There was a gap of a week between the second and third days of this hearing. GF had opportunity to go back to his GP to query that recording. He did not do so.

33.     The Adult Health Check, dated April 2014, records ‘1 bottle of wine per week plus up to six small bottles of beer per week’. GF told the assessor, Mr Dodds, that alcohol ‘is not a big part of my life anymore’. He said that if P came to live with him, ‘I would pack up the drink’.

34.     In his written evidence GF says,

‘[I] can see that in the past I have drunk too much alcohol. I do not feel that I need to do any work to address my alcohol use however I would if it was felt it was needed to demonstrate I am committed to caring for P’.

 

35.     MR, too, accepts that on each occasion the police were called out she and GF had both been drinking. She accepts that at the time of the first call-out in January 2006 she had consumed ‘approximately 3-4 pints of cider’. She also accepts that at the time of the police call-out on 21^st December 2007 she was caring for CP whilst GF was out. As it was Christmas time, she had had ‘perhaps had a few drinks’ whilst CP was in bed. She had been drinking vodka and lemonade.

36.     With respect to the final police call-out in February 2013, GF said that he was not as drunk as MR and that she ‘had drunk too much’.

37.     In her written evidence MR conceded that she

‘could see that incidents have occurred when we have been drinking heavily and this is not something that I regularly do and I would not do if I were caring for a child.’

 

38.     In her oral evidence, MR said that she has ‘matured’. She said that she now drinks no more than around four cans of lager per week. She said that she and GF do not go out drinking in pubs and clubs. GF, however, said that they go out drinking most Fridays. MR sought to reassure me that she now drinks responsibly. As in other areas, I had the impression that she was minimising.

Drug abuse

39.     GF has disclosed that during and immediately after his relationship with LC he took amphetamines. He says that this ended in 2003.

40.     In 2000 GF was convicted of an offence of possessing cannabis. What did not emerge until late on in the Connected Person assessment was that GF had used cannabis daily for around 30 years. He claims not to have used cannabis since December 2013 when he decided to give up his habit.

41.     A note in GF’s medical records, dated 21^st December 2007, states, ‘Referral to community drug and alcohol team’. A further note in January 2008 records, ‘Cannabis drug dependence’. GF was referred to Turning Point. He attended three sessions. He disagreed with their approach so he withdrew.

42.     GF said that he never smoked cannabis in the house but only in a shed at the bottom of his garden. He would ‘smoke a joint’ after getting home from work. He smoked cannabis daily.

43.     In his written evidence GF says,

‘I have habitually used cannabis throughout my life and am now taking tablets aimed at quitting smoking which are now helping me to stop using cannabis.’

 

Interestingly, although GF told Mr Dodds that he gave up using cannabis in December 2013, there is no mention of this in GF’s written evidence even though his statement was not prepared until some weeks after the assessment had been completed.

44.     It is clear that GF’s drug use and his alcohol use proceeded side by side. For the last twelve months he has been working as a van driver. He insists that his drug and alcohol use have not been at times when their impact may have impaired his ability to drive. It was clear that he had not considered the potential consequences for his employment had his employers become aware of his drug use.

45.     There is no evidence to suggest that MR has ever taken drugs. Indeed, she said that she was strongly opposed to taking drugs. She was aware that GF had used cannabis on a regular basis. For a while he had tried to hide his cannabis use from her. She would not have allowed him to use cannabis in the house.

46.     During Mr Dodds’ assessment GF had allowed him to believe that he had not used drugs since 2003. MR knew that he was being economical with the truth. She could have contradicted him. She didn’t. When asked why, she said that ‘it was GF’s issue’. Her written evidence is completely silent about GF’s cannabis use.

Anxiety and depression

47.     GF’s medical records also disclose that he has a history of suffering from anxiety and depression. In October 2012 the medical records contain an entry, ‘low mood’. The Adult Health Check notes that he was then referred for counselling. More recently, in March 2014, the records refer to a consultation in respect of a ‘stress related problem’. He was prescribed Varenicline ‘to reduce physical symptoms of anxiety’. Varenicline is a drug designed to help smokers to give up smoking by reducing the urge to smoke and by relieving withdrawal symptoms.

48.     As a result of her decision to withdraw from the Connected Person’ assessment, MR did not undertake an Adult Health Check and she did not consent to her GP records being produced.

Smoking

49.     GF has been a smoker for several years. Whilst smoking is not necessarily a contra-indicator to GF’s suitability as a long-term carer for P, it is significant in the context of his ability to give up habit-forming behaviour even with professional support. GF’s medical records contain the following relevant entries:

‘04-May-2010 Ex-cigarette smoker

10-May-2010 Seen by smoking cessation adviser

09-June-2011 Cigarette smoker’

In the Adult Health Check, in answer to the question, ‘When and for what purpose did he/she last consult your practice’ the GP responded ‘28.3.14: smoking cessation’. Later the GP notes, ‘Presently taking medication for smoking cessation’. GF’s inability to give up his long-term smoking habit even with professional support casts some doubt on the reliability of his assertion that in December 2013 he gave up a 30-year cannabis dependency by sheer force of will-power without any professional support.

Stability of relationship

50.     Questions have been raised concerning the stability of GF’s relationship with MR. The police record relating to the final call-out on 13^th February 2013 notes that MR ‘intends to end the relationship’. GF admits that in a telephone conversation with Mr Dodds on 2^nd April, he had told Mr Dodds that he wasn’t sure whether his relationship with MR ‘was still on’ The Adult Health Check, completed on 2^nd April, notes ‘Relationship with partner unstable at present’.

51.     In their oral evidence both GF and MR have insisted that their relationship is stable and secure. GF said, ‘We are a very happy couple and have been for 14 years’. That statement is not accurate.

The viability assessment

52.     The viability assessment was undertaken by P’s social worker, Jenny Brotherhood. Ms Brotherhood had three meetings with GF and MR each lasting around 1½ hours. It is clear that GF was economical with the truth.

53.     The Connected Person Viability Assessment Form completed by Ms Brotherhood requires the author to obtain ‘Details of any Health issues (that could affect the ability to care). Consider smoking/alcohol/drug use both currently and in the past’. Ms Brotherhood states that GF, ‘reports that he is in good health and does not currently have any health issues and is not taking any medication. GF does drink alcohol socially and has also smoked in the past’.

54.     Although GF informed Ms Brotherhood that he had experimented with drugs when in a relationship with LC, he did not mention his 30-year cannabis habit. Ms Brotherhood said that GF told her he had not taken drugs since he had been in his mid-twenties. That was not true. The statement that he had ‘smoked in the past’ is also plainly untrue. It was only a month after this assessment had been completed that GF again sought medical help to give up smoking.

55.     Although Ms Brotherhood recommended that a full Connected Person assessment should be undertaken her manager was not immediately convinced. Ms Brotherhood and her manager made a joint visit to see GF and MR on 26^th February. GF was again asked about his past drug use. Again he did not mention his 30-year cannabis habit.

56.     It was only after this meeting that the local authority agreed that there should be a full Connected Person assessment. Although notes taken at the meeting on 26^th February have not been produced, Ms Brotherhood left me with the clear impression that the decision to move on to a full assessment was marginal.

57.     In her oral evidence Ms Brotherhood readily accepted that both GF and MR have a positive relationship with P. Though scheduled to have contact once a week, with the agreement of the foster carer GF occasionally calls in to see P if he happens to be in the area. Ms Brotherhood agreed that there is no doubt about GF’s commitment and his desire to care for P.

58.     For the mother, Mr Roscoe asked Ms Brotherhood whether she would agree that this is a finely balanced case. She did not agree. She made the point that the risk factors and history are very concerning and that placement with GF would not, therefore, be appropriate. She also made the point that P is a little boy who has already had to cope with a lot of instability and that further placement breakdown would be damaging.

The Connected Person Assessment

59.     Christopher Dodds is an Independent Social Worker. He is sometimes instructed by this local authority to undertake kinship assessments in cases where the local authority does not have the in-house resources available to complete such assessments in timely fashion. His role in this case, therefore, is not as an expert witness but, as he describes it, as a freelance social worker.

60.     Mr Dodds has completed a ‘Connected Person – Full Assessment Form’. The purpose of that form is to assist the local authority to determine whether to approve GF and MR as local authority foster carers. Mr Dodds has also prepared a written statement. He refers to this statement as ‘an unregulated assessment’ by which he appears to mean an assessment to assist the court in determining whether (in the event that GF and MR are not approved as foster carers) it is appropriate for P to be placed with GF and MR under a child arrangement order. Although he has prepared two separate reports, both reports are based on the same evidence gathered from his meetings with GF and MR.

61.     Mr Dodds received his instructions from the local authority on 6^th March 2014. Given that the court had ordered the local authority to file its final evidence and care plan by 4^th April, the timescale for completing his assessment was relatively short. He had a month within which to complete it.

62.     There is an issue between the guardian and Mr Dodds about whether Mr Dodds had said to her that the timescale for preparing the report was too short. Mr Dodds says that he told the guardian that GF had expressed concern that four weeks was a short timescale. The guardian has misinterpreted this comment.

63.     The assessment exposed the fragility of the relationship between GF and MR. Mr Dodds says that in his conversations with GF and MR he noticed that MR seemed to be less forthcoming than GF. He got the impression that GF controlled MR in conversation. Her input had been minimal. Both GF and MR strongly disagree with Mr Dodd’s conclusion that GF is ‘controlling’. MR denies that she is afraid to express her own opinions.

64.     Mr Dodds undertook five joint meetings with GF and MR on 12^th, 15^th, 17^th, 19^th and 22^nd March. Each session lasted for around two hours. He arranged to undertake separate one-to-one sessions with both GF and MR on 29^th March. It was not until he arrived at their home on 29^th March that he discovered that MR had made herself unavailable, preferring instead to attend a family birthday celebration.

65.     On 31^st March Mr Dodds was contacted by GF. GF informed him that MR had decided to withdraw from the assessment. He said that she had found the assessment to be intrusive. Later that day Mr Dodds made several attempts to contact MR by telephone. He was unsuccessful.

66.     MR telephoned Mr Dodds on 1^st April. She said that she had spent the weekend thinking about the assessment. The plan had been that if P were placed in their care then, given GF’s work commitments, she would be his primary carer. On reflection she was no longer confident that GF would give her his full support in that role. In particular, she was concerned that he would prioritise his relationship with AB over his relationship with her.

67.     By the end of that telephone conversation MR had changed her mind and had decided to continue with the assessment. However, the next day, 2^nd April, Mr Dodds received another telephone call from GF to inform him that MR had again decided to withdraw from the assessment. Mr Dodds says, and I accept, that he advised GF to seek independent legal advice.

68.     GF and MR do not significantly disagree with Mr Dodd’s account of his dealings with them from 31^st March to 2^nd April. GF accepts that he told Mr Dodds that MR was finding the assessment too intrusive and too stressful. He agrees that he had also said that he wasn’t sure whether his relationship with MR was ongoing.

69.     Mr Dodds contacted the Fostering Team Manager and informed her of the developments. He was instructed to terminate the assessment. Although the assessment was terminated early, Mr Dodds is in no doubt that what he learned from his meetings with GF and MR, coupled with the events of 31^st March to 2^nd April, provided him with sufficient information to enable him to come to a firm conclusion on the suitability of GF and MR as long-term carers for P. His assessment is negative.

70.     GF and MR say that they formed the impression that it was a forgone conclusion in Mr Dodds’ mind that the assessment would be negative. According to them, at the very first meeting with Mr Dodds he had made the point that he is normally asked to remove children from situations like theirs (by which he was understood to mean domestic violence, drugs and alcohol) not place children into such a situation. Mr Dodds denies making that comment. GF says that on 2^nd April Mr Dodds had told him that the Fostering Panel was unlikely to approve his application to be a foster carer. MR says that Mr Dodds had told them that they ‘didn’t stand a chance’. She could see no way forward. That is why she had withdrawn.

71.     I accept that Mr Dodds was open with GF and MR about their prospects of being approved as local authority foster carers. He was also being realistic.

72.     Mr Dodds expresses concern that GF did not intervene more decisively when it was clear that the mother’s parenting of P was significantly inadequate. He says that GF, ‘cites complex family relationships as the main reason why he failed to intervene…this gave me my first insight into GF’s ambivalence towards putting his own beliefs into practice’. Mr Dodds goes on to say that he has ‘major doubts as to whether [the mother] would accept MR being the primary carer for P in the long term’. In light of the history of family relationships he ‘also has doubts about whether GF would consistently support his partner if such conflict arose’. It was clear from MR’s evidence that that is a concern she shares.

73.     Mr Dodds notes that GF and MR ‘acknowledged the causal factors for the police’s involvement were binge drinking arguments about [the mother]’. He expresses concern that ‘It became evident that MR only felt confident to express her views after she had consuming (sic) alcohol’. He says that in his view, ‘there is repeating evidence to indicate both GF and MR had difficulty regulating their own behaviours and difficulty in anger management’. He also notes that neither of them ‘has accessed support or intervention from services relating to domestic abuse and violence in their relationship’.

74.     Early on in the assessment GF told Mr Dodds that he was ‘a clean man’ (an expression which GF denies using). It wasn’t until the fourth assessment meeting that GF disclosed his 30-year cannabis habit. GF was unable to explain why he had not shared that information sooner. Mr Dodds says that he has ‘doubts about whether GF has in fact ended his well established cannabis habit and about his resilience to maintain his abstinence’.

75.     As part of the viability assessment GF and MR were asked to provide the names of two referees. They provided three names. The first was GF’s line manager. The others were two friends (a couple). Mr Dodds did not contact them. He explained that GF made it clear that he did not agree to him discussing with the referees his history of domestic violence and drug taking. GF denies this. MR says that GF had only wanted to limit disclosure of his past to his line manager.

76.     I accept that there may have been some misunderstanding between Mr Dodds and GF on this issue. In the event, the fact that the assessment was terminated as a result of MR withdrawing from the assessment meant that it was not necessary to take up the references. GF has produced six character references from people who he says know him well. All are positive. Mr Dodds has read those references. His position is unchanged.

77.     Mr Dodds acknowledges that there are a number of positives in the application by GF and MR. However, in his opinion these are outweighed by the negatives. He concludes the Connected Person assessment by saying that,

‘In order to fully explore the viability of care planning, I gave consideration to underpinning a care arrangement by a defined risk assessment. This assessment included the requirement of both applicants to address their historic difficulties by accessing the provision of services for:

i             Alcohol misuse and awareness support

ii           Intervention relating to domestic abuse for both GF and MR;

iii         Substance abuse and awareness support;

iv         GF to undertake a hair strand test;

v           Health assessments to be completed for both applicants.’

 

However, even in this context, the risk factors and fragility of this assessment in the context of fostering regulations still raised concerns. It was agreed and accepted at the care planning stage of assessments for P that this care arrangement would not be viable to proceed under fostering regulations due to the level of risk and historic concerns.

In my opinion, the decision was confirmed as being correct following MR’s decision to withdraw from the assessment…

Even if the issues outlined above were to be addressed successfully, there would remain significant concerns. GF has not been able to provide any of his 4 children with a stable protective upbringing. His lifestyle has involved drugs, alcohol and domestic violence. There are concerns in his current relationship about controlling behaviour. He has been unable to convince his partner that his loyalty to her and to P would outweigh his loyalty to his daughter. This is a matter of particular significance because similar conflict has led to stress and to domestic violence in the past.

It is my assessment that these issues indicate that GF, either alone or with his partner, is unlikely to be able to protect P from domestic conflict or from the risks which his mother posed to him. AB was not protected from her mother’s abusive lifestyle by her father; I do not believe that GF would now be better placed to protect P from his mother or grandmother’s unsuitable lifestyle.’

 

78.     The local authority held a legal planning meeting on 27^th March. Mr Dodds was asked to attend. He explained to the meeting that his assessment of GF and MR was not yet complete. He informed the meeting that his assessment was likely to be negative.

79.     The redacted minutes of the legal planning meeting have been produced. They confirm the even-handedness of the approach taken by Mr Dodds at that meeting. They record that,

‘Chris Dodds shared that he felt this was a new position and remained untested. Basic practical care and home conditions are reportedly fine. The issues of concern are lifestyle, family relationships and his success as a father is questionable. There are concerns that he is not being fully open and we believe there will be evidence of recent drug use on health records. There are some additional concerns that he suffers from stress and anxiety’

 

80.     The decisions reached at that meeting are equally balanced. The minutes record:

‘While we are clear about our assessment of mum in this case and the putative father is not making an application in this case, the issue of family placement is more complex…

The debate around placement with grandfather is clearly a complex one and fraught with difficulty when considering the recent rulings that adoption should be a last resort. On balance on considering the above issues placement with grandfather would be viewed as a high risk strategy and there are questions about how P may be protected in light of the wide range of risk indicators…

Our primary position at this point would be that adoption is the most likely preferred option however the remaining planned session with grandfather’s partner in the next few days may provide further evidence to either reduce our concerns or conversely may increase concerns.’

 

MR failed to attend the one to one meeting fixed for 29^th March. On 31^st March GF informed Mr Dodds that MR had withdrawn from the assessment. The local authority instructed Mr Dodds to terminate the assessment.

Final care plan

81.     The local authority’s final care plan was signed on 7^th April. It recommends that P be placed for adoption and that following placement the mother and GF should have annual indirect two-way letter-box contact. The plan for adoption was approved by the Agency Decision Maker (‘ADM’) on 29^th April. The local authority’s application for a placement order was issued that same day. For reasons which are addressed later in this judgment, the ADM reviewed and re-confirmed her decision on 28^th May.

Independent Social Worker

82.     On the first morning of this hearing the mother issued an application for permission to obtain an assessment of GF and MR by an Independent Social Worker, Mr Ray Tansey. Mr Tansey has indicated that he is able to report within four weeks of being instructed. The draft letter of instructions proposes that Mr Tansey be asked ‘to provide an updated Social Work Risk Assessment in relation to P and the prospect of him being placed into the long term care of GF and his partner’.

The Children’s Guardian

83.     Sally Douglas is the allocated Children’s Guardian. Ms Douglas has prepared three reports, two relating to the care proceedings and the third relating to the application for a placement order.

84.     Although the guardian has observed a positive relationship between P and his grandfather, she is nonetheless concerned about GF’s history and about risk. She notes that, ‘information relating to the incident in 2006 and the last incident in February 2013 does not appear to tally up to how he describes events, which may mean concerns are being minimised’. She is also concerned about his longstanding use of cannabis. She says that, ‘Again there does appear to be some inconsistencies in the information given to Mr Dodds during the assessment relating to when the cannabis use actually ended, if at all’. As a result, she says that she is ‘cautious in respect of P being placed in the care of GF and MR in light of the concerns raised throughout the Connected Person assessment’. She agrees that in his oral evidence GF did not show good insight into the matters that are of concern to professionals.

85.     In her second report, the guardian refers to two telephone conversations she had with Mr Dodds on 1^st and 2^nd May. With respect to the first of those calls, she says that

‘Mr Dodds discussed the difficulty of undertaking an assessment with such a complex family history with a turnaround of 4-5 weeks and informed me that the full report had not yet been disseminated which is why some of the detail mentioned by GF was not contained within the more succinct version filed with the court…’

 

86.     Mr Dodds’ Connected Person assessment was received by the guardian the next day. They then had a second telephone conversation. The guardian’s account of that conversation is that, ‘Mr Dodds was of the view that “there is a potential for this to be managed with a risk management plan”, although stated this would arguably be matched against risky variables. Mr Dodds acknowledged that other than the call out from the police in February 2013, everything else had been self-reported i.e. GF stating that he is not drinking or taking drugs.’ Mr Dodds does not agree with the guardian’s account of this conversation.

87.     In the light of those conversations the guardian came to the conclusion that she is not in a position to make a firm decision about the appropriateness of the local authority’s final care plan. She says that,

‘There are very clear concerns evidenced by Mr Dodds within the Connected Person assessment, relating to domestic violence and cannabis use. However due to conflicting information from our telephone discussion and the outcome of the Connected Person assessment I do not feel that I can make a recommendation at this stage that could potentially discount GF and his partner MR as potential carers for P, as clearly issues have been raised by the author of the report that need further clarity.’

 

88.     The guardian took the same position in her third report and in her oral evidence. In her oral evidence she said that she cannot support the local authority’s position ‘at this stage’ She is troubled by Mr Dodds’ attendance at the legal planning meeting. In her experience it is unusual for the author of an assessment to attend such a meeting. It is particularly regrettable that he should have attended such a meeting when his assessment was not complete.

89.     For the local authority, Miss Hodges informed me that this local authority routinely holds a legal planning meeting in the final week before the date for service of its final evidence (in this case, 4^th April). It is also this local authority’s practice to invite the author(s) of any assessment(s) to attend that meeting. Notwithstanding this information, the guardian remains concerned.

90.     I asked the guardian very clearly whether, as appeared to be the case, her concern about the assessment relates principally to process rather than outcome. She agreed that it does.

91.     The guardian has concerns about what she perceives to be shortcomings in the work undertaken by Mr Dodds. She is concerned that he did not speak to the mother or to GF’s two older daughters. She is concerned that there has been no assessment of the ability of GF and MR to change and to sustain change. She agreed with Mr Dodds that GF and MR need to access services, in MR’s case through Women’s Aid and by undertaking the Freedom Programme. It is Mr Dodds view that it would not be appropriate for P to be placed with GF and MR whilst they were undertaking such work. The guardian disagrees. In her report of 7^th May she says,

’34. I am cautious in respect of P being placed in the care of GF and MR in light of the concerns raised throughout the connected persons assessment. However I do not feel I can give an informed view at this stage when I am not completely clear that the recommendation that is before the court reflects the discussions I have had with the author of the report. For this reason I do not feel I can support the Local Authority’s proposals for P at this time until the court have considered the conflicting information I have received in relation to GF and MR’s assessment.

35. Alternatively consideration may need to be given to a further Independent Social Work assessment of GR and MR, which may cause delay…’

 

In her oral evidence the guardian made it clear that she supports the mother’s application for permission to instruct an Independent Social Worker. In her opinion, ‘Every option needs to be exhausted before a plan for adoption could be supported for P given the consequences this could potentially have for P in the future.’ She says that P ‘deserves to know that every avenue has been fully exhausted within a fair and even-handed process’.

The law

Care proceedings

92.     The finding that the threshold set by s.31(2) Children Act 1989 is satisfied is the gateway to the making of on order in respect of P. Within the care proceedings, in determining the appropriate order the court must follow the approach set out in s.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.

93.     In addition to those statutory provisions, the court must also have regard to the Article 8 rights of P, his mother, GF and MR and must endeavour to arrive at an outcome that is both proportionate and in P’s best welfare interests.

Placement application

94.     In addition to a final care order the local authority also seeks a placement order pursuant to s.21 Adoption and Children Act 2002. The court may only make a placement order if either the child’s parents consent to the order being made or if the court dispenses with the parents’ consent. Section 52 provides that the court cannot dispense with a parent’s consent unless it is satisfied either that the parent cannot be found or is incapable of giving consent or that the welfare of the child requires that the parent’s consent be dispensed with.

95.     In determining whether to make a placement order and whether to dispense with parental consent the court’s approach must be as set out in s.1 of the 2002 Act. The court’s paramount consideration must be the child’s welfare throughout his life (s.1(2)). In determining the child’s welfare interests the court must have regard to each of the factors in the welfare checklist set out in s.1(4). The court must have regard to the issue of delay (s.1(3)). It must not to make an order unless it considers that making such an order would be better for the child than not doing so (s.1(6)). The court must again have regard to P’s Art 8 rights and to those of his parents.

Re B-S (Children)

96.     When dealing with an application for a placement order or adoption order, the court must have regard to the guidance given by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The approach to determining whether a placement order is appropriate is stringent. Such an order should only be made (para 22).

‘where “nothing else will do”, where “no other course [is] possible in [the child's] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do”’

 

97.     In order for the court to be able to determine whether nothing else but adoption will do (para 34),

‘…there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option…

98.     There must be an assessment of the parents’ ability to discharge their responsibility towards the child. That assessment must ‘take into account the assistance and support which the authorities would offer’ (para 28).

99.     In the light of all of the evidence, the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare. What is required (para 84),

‘is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

 

100. Finally, it must be remembered that dispensing with a parent’s consent to adoption is a serious step for the court to take (para 20):

‘Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child "requires" this. "Require" here has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable": Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test…’

 

26 weeks and the problem of delay

101. As a result of amendments to s.32 of the Children Act 1989 which came into effect on 22^nd April 2014, it is now a statutory requirement that applications for care and supervision orders be heard ‘without delay’ and ‘in any event within twenty-six weeks beginning with the day on which the application was issued’ (s.32(1)(a)). These care proceedings were issued on 13^th December 2013. Twenty-six weeks expired on 13^th June.

102. There is a residual power to extend the twenty-six week period, though the court ‘may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.’ (s.32(5)). Such extensions ‘are not to be granted routinely and are to be seen as requiring specific justification’ (s.32(7)).

103. In making a decision which may give rise to the need to revise the timetable (for example, a decision relating to expert evidence) and/or in deciding whether to grant an extension to the timetable the court must have regard to the impact which any ensuing timetable revision would have on the welfare of the child and on the duration and conduct of the proceedings (s.32(4) and (6)).

104. In Re B-S (Children) Sir James Munby P. made the point that (para 49)

‘We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.’

105. Pauffley J made a similar point in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), saying that, ‘Justice must never be sacrificed upon the altar of speed.’

106. It is clear that some cases will require more than 26 weeks in order to achieve an outcome that is both just and fair. In Re S (A Child) [2014] EWCC B44 (Fam) Sir James Munby P. has given guidance on this issue:

‘33. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be "necessary":

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent's disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly 'derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).’

 

Expert evidence

107. The mother’s primary submission is that I should adjourn this final hearing and give permission to her to obtain an assessment of GF and MR by an Independent Social Worker. Until 22^nd April the test the court was required to apply in determining an application for permission to instruct an expert was that set out in Part 25 of the Family Procedure Rules 2010, rule 25.1 That test has now been replaced by a statutory test, set out in s.13 of the Children and Families Act 2014. which, so far as is material, provides that:

(6)       The court may give permission [to instruct an expert] only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

(7)       When deciding whether to give permission [to instruct an expert] the court is to have regard in particular to—

(a)       any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,

(b)      the issues to which the expert evidence would relate,

(c)       the questions which the court would require the expert to answer,

(d)      what other expert evidence is available (whether obtained before or after the start of proceedings),

(e)       whether evidence could be given by another person on the matters on which the expert would give evidence,

(f)       the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,

(g)      the cost of the expert evidence, and

(h)      any matters prescribed by Family Procedure Rules.

 

Approval as foster carers

108.  Section 22C of the Children Act 1989 is headed ‘Ways in which looked after children are to be accommodated and maintained’. So far as is material, s.22C provides that:

(1)       This section applies where a local authority are looking after a child (“C”).

(2)       The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).

(3)       A person (“P”) falls within this subsection if—

(a)       P is a parent of C;

(b)      P is not a parent of C but has parental responsibility for C; or

(c)       in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made…

(5)       If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.

(6)       In subsection (5) “placement” means—

(a)       placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;

(b)      placement with a local authority foster parent who does not fall within paragraph (a)…

(7)       In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)—

(a)       give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection…

(c)       comply, so far as is reasonably practicable in all the circumstances

 

109. Regulation 2 of the Care Planning, Placement and Case Review (England) Regulations 2010 provides that for the purpose of those regulations,

’C’ means a child who is looked after by the responsible authority…

’F’ means a person who is approved as a local authority foster parent and with whom it is proposed to place C or, as the case may be, with whom C is placed…

110. Regulation 22 is headed ‘Conditions to be complied with before placing a child with a local authority foster parent’. So far as is material, it provides that,

(1)       This regulation applies where the responsible authority propose to place C with F.

(2)       The responsible authority may only place C with F if—

(a)       F is approved by—

(i)        the responsible authority, or

(ii)     provided that the conditions specified in paragraph (3) are also satisfied, another fostering service provider,

(b)      the terms of F’s approval are consistent with the proposed placement, and

(c)       F has entered into a foster care agreement either with the responsible authority or with another fostering service provider in accordance with regulation 28(5)(b) of the 2002 Regulations.

 

111. The combined effect of the regulations to which I have referred is that if I were to come to the conclusion that it is in P’s best welfare interests for the court to make a final care order the local authority would only be able to place P in the care of GF and MR if they are approved as foster carers.

112. Regulation 26(1) of the Fostering Services (England) Regulations 2011 provides that

‘where a person (‘X’) applies to become a foster parent and the fostering service provider decides to assess X’s suitability to become a foster parent, any such assessment must be carried out in accordance with this regulation.’

 

Regulation 26(1A) and Schedule 3 sets out the matters which must be addressed when undertaking an assessment of a prospective foster parent.

113. The criteria for determining the suitability for approval as a local authority foster parents are stringent. The importance of local authorities discharging their duties diligently and rigorously is clear. On 8^th March 2011 the Department for Education published Fostering services: national minimum standards. The standards are issued under s.23 of the Care Standards Act 2000. Standard 13 is headed Recruiting and assessing foster carers who can meet the needs of looked after children. For present purposes sub-paragraphs 13.5 to 13.7 are of particular relevance:

13.5)   Checks are carried out in line with regulation 26 and prospective foster carers understand why identity checks, relationship status and health checks, personal references and enquiries are undertaken about them and why enhanced CRB checks are made on them and adult members of their household.

13.6)   Prospective foster carers are considered in terms of their capacity to look after children in a safe and responsible way that meets the child’s development needs.

13.7)   The written report on the person’s suitability to be approved as a foster carer sets out clearly all the information that the fostering panel and decision maker needs in order to make an objective approval decision. The reports are accurate, up-to-date and include evidence based information that distinguishes between fact, opinion and third party information. The reports are prepared, signed and dated by the social worker who assessed the prospective foster carer and countersigned and dated by the fostering team manager or a team manager of another of the provider’s fostering teams.

 

Decision-making by Agency Decision Maker

114. On 29^th April, pursuant to Regulation 19(1) of the Adoption Agency Regulations 2005, ADM came to the decision that P should be placed for adoption. The guardian’s final report in the care proceedings was completed on 7^th May. It is clear from her report that, at that stage, she did not support the local authority’s final care plan. For the mother, Mr Roscoe submits that the ADM’s decision is flawed because she did not have before her, and therefore was unable to take into account, the views of the guardian.

115. In support of his proposition Mr Roscoe relies upon the Statutory Guidance for Adoption published by the Department for Education in July 2013. The guidance is issued under Section 7 of the Local Authority Social Services Act 1970. Section 7 requires local authorities in exercising their social services functions, to act under the general guidance of the Secretary of State. The guidance must be complied with by local authorities when exercising these functions, unless there are exceptional reasons which justify a departure.

116. At paragraph 2.68 the guidance states that,

‘Where court proceedings are taking place, it is important that the children’s guardian’s views are conveyed to the decision-maker, particularly if these differ from those of the local authority. There may also be expert reports available which have been prepared in connection with the court proceedings. Although this may sometimes give rise to difficulties of timing, it is essential that these or a summary (agreed between the local authority’s legal adviser and the other parties to the proceedings) be made available to the decision-maker.’

 

117. It is plain that the basis for that paragraph is the guidance given by the Court of Appeal in Re B (Placement Order) [2008] 2 FLR 1404 at paras [81] to [86]. However, the guidance given in Re B (Placement Order) dose not include a requirement that the children’s guardian’s views must be communicated to the ADM before the ADM makes her decision.

118. The powers and duties of a Children’s Guardian are set out in FPR 2010, Part 16. There is no duty upon a Children’s Guardian to convey her views directly to the ADM. The only duties owed by a Children’s Guardian’s are owed to the court and to the child. These include the duty, unless the court directs otherwise, to ‘file a written report advising on the interests of the child in accordance with the timetable set by the court’ (see PD16A paragraph 6.8(a)). The ADM does not enjoy a privileged position. She will not know the guardian’s view until her final report has been filed.

119. Out of caution, on the first day of this hearing I agreed that the ADM should be invited to reconsider her decision in the light of the guardian’s reports. The ADM was able to do so overnight. She confirmed her earlier decision. Notwithstanding the approach taken in this case, upon reflection I have come to the conclusion that in so far as it appears to require the ADM to take account of the views of the children’s guardian the advice given at paragraph 2.68 of the Statutory Guidance for Adoption does not accurately reflect the guidance given by the Court of Appeal in Re B (Placement Order) and, to that extent, is therefore wrong.

Legal planning meeting

120. The guardian raises an issue of procedural unfairness with respect to Mr Dodds’ attendance at the legal planning meeting on 27^th March. This led to last-minute research by counsel into the law relating to legal planning meetings. Their research suggests that at the relevant time there was no statutory or regulatory basis for the practice of holding legal planning meetings or for the procedure to be followed when conducting such a meeting. There is now some guidance on legal planning meetings in the recently published (April 2014) Statutory guidance on court orders and pre-proceedings, issued under s.7 of the Local Authority Social Services Act 1970, though that guidance only deals with the position concerning legal planning meetings held pre-proceedings and not, as in this case, those held during the course of proceedings.

121. This local authority, in partnership with Leicester City Council and Rutland County Council, has produced a ‘Children and Young People’s Service Procedures Manual’. Legal planning meetings are dealt with at section 1.6.2 of the manual. The manual notes that ‘From April 2005 Legal Planning Meetings were expected to be held by local authorities.’ It refers to the View from the President’s Chambers (2) – The process of reform: the revised PLO and the local authority (published in May 2013) in which Sir James Munby P. said,

‘It is not for me to tell local authorities how to organise themselves. But practical experience seems to suggest that local authority lawyers need to get involved, advising and assisting their social work clients, earlier than is often the case; that a properly organised legal planning meeting is invaluable – indeed, the key to achieving timely outcomes to care proceedings…’

 

The manual goes on to give guidance on when a legal planning meeting is required, on the procedure to be followed in convening such a meeting, on the purpose and agenda of a legal planning meeting and on recording legal planning meetings. It is silent on the question of who should attend the meeting. The manual also contains a specimen Record of a Legal Planning Meeting. It is clear from this document that the only two people who must be present at such a meeting are the social work team manager and a local authority lawyer. As for who else may be present, under a heading ‘Who else is being invited’ the Record suggests four categories: health, education, family placement and ‘other’.

122. All of this would appear to suggest that although legal planning meetings have a very important role to play in a local authority’s case planning, how such meetings are structured and who should be invited to attend are flexible and are very much issues for each local authority to determine.

123. As for the suggestion of procedural unfairness, I accept in principle that the conduct of a legal planning meeting could give rise to a claim that a parent’s Art 6 and Art 8 rights have been infringed. In Re L (Care: Assessment: Fair Trial) [2002] 730, Munby J (as he then was) gave guidance on the extent of the concept of ‘fairness’ in the context of a ‘fair trial’. At paragraph [113] he makes the point that

‘the fair trial guaranteed by Art 6 is not confined to the “purely judicial” part of the proceedings. Unfairness at any stage of the litigation process may involve breaches not merely of Art 8 but also of Art 6.’

 

With respect to public law Children Act proceedings, he goes on to say that

‘[150] The fairness which Arts 6 and 8 guarantee to every parent - and also, of course, to every child - in public law proceedings imposes…a heavy burden on local authorities. But it must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent - particularly, perhaps, to a mother - that he or she is to lose their child for ever.

[151] The state, in the form of the local authority, assumes a heavy burden when it seeks to take a child into care. Part of that burden is the need, in the interests not merely of the parent but also of the child, for a transparent and transparently fair procedure at all stages of the process - by which I mean the process both in and out of court.’

 

124. In this case I asked Mr Roscoe, for the mother, and Miss Kaur, counsel for the guardian, whether they contend that the circumstances relating to the timing of and attendance of Mr Dodds at this legal planning meeting constitute an infringement of the mother's rights under Art 6 or Art 8. Neither of them contended that there has been an infringement.

Discussion

The application for an independent social work assessment

125. I begin my analysis by considering the mother’s application for permission to instruct an Independent Social Worker. If that application is allowed then plainly this final hearing must be adjourned pending the outcome of that assessment. If the application fails then I must proceed to a determination of welfare issues.

126. The position of the mother and the guardian area identical. In her closing submissions on behalf of the guardian, Miss Kaur made five specific points in support of her position that Mr Dodds’ assessment has been inadequate and that there should now be an independent social work assessment. It is convenient to structure my own analysis around those specific points.

127. Firstly, Miss Kaur submits that the timescale for Mr Dodd’s assessment was too short.

128. On 19^th December 2013 I ordered the local authority to file and serve its final evidence ‘to include any viability/kinship care assessments’ by 4^th April. That gave the local authority 15 weeks. The viability assessment was completed on 6^th February. For the reasons explained earlier in this judgment, Mr Dodds was not appointed until 6^th March. That meant he had just over four weeks to complete his assessment if the local authority was to comply with the timetable.

129. According to the guardian, Mr Dodds told her that it was difficult to undertake an assessment with such a complex family history with a turnaround of 4-5 weeks. Mr Dodds does not agree with that account of their conversation. I do not for a moment doubt that both the guardian and Mr Dodds are trying accurately to recall what was said.

130. I am not satisfied that Mr Dodds did complain that the timescale was too short. More importantly, I am not satisfied that the timescale was too short. Mr Dodds is not a local authority social worker with a heavy case load to manage. He is, as he described himself, a freelance social worker. He was engaged by the local authority to undertake this piece of work within a known timescale that had been fixed by the court. Had he considered the timescale to be too short he could have refused to accept the instructions. He didn’t. It is interesting to note that the proposed Independent Social Worker, Mr Tansey, has said he can prepare a full report within four weeks.

131. Secondly, Miss Kaur submits that it was inappropriate for Mr Dodds to have attended the legal planning meeting and equally inappropriate for that meeting to have been held before Mr Dodds’ assessment had been completed. In the circumstances there is an impression that the outcome of the assessment was being pre-judged.

132. I noted earlier that there is no statutory or regulatory basis for a legal planning meeting. Although local authorities invariably make use of them, it is a matter for each local authority to determine when such meetings should be held and who should attend. Whilst there is theoretical scope for such a meeting to infringe a parent’s Art 6 and Art 8 rights Mr Roscoe and Miss Kaur both eschewed the opportunity to assert that there has been such an infringement in this case. I see no significance in the fact that this meeting was held shortly before the assessment had been completed. Mr Dodds made it clear to the meeting that his assessment was not complete. The meeting took that into account. I also see no unfairness in Mr Dodds having been invited to attend this meeting. I do not accept that that meeting pre-judged the outcome of Mr Dodds’ assessment.

133. Thirdly, Miss Kaur is critical of some aspects of the assessment. In particular, she is critical of Mr Dodds for not speaking to the mother with the consequence that he was entirely reliant upon what others had to say in terms of assessing the mother’s present functioning. She is also critical of him for not speaking to GF’s two older children.

134. I noted earlier the requirements of regulation 26(1) of the Fostering Services (England) Regulations 2011. So far as concerns the interviewing of third parties, the only requirement imposed by the regulations is to be found in regulation 26(1A)(c) which requires that the assessor must ‘interview at least two persons nominated by X to provide personal references for X…’ Although the regulations do not exclude the possibility of an assessor interviewing persons other than the applicants and their nominated referees, it is clear that the decision to do so is entirely a matter for the discretion and professional judgment of the assessor.

135. In my judgment it was not part of Mr Dodds’ task to interview the mother in order to form his own judgment of her present functioning or to interview GF’s older two daughters. On those issues he was entitled to rely on the information contained within the papers provided to him by the local authority.

136. So far as concerns the requirement to interview nominated referees, Mr Roscoe submits that had Mr Dodds interviewed the referees nominated by GF then that may ‘have given pause for thought’. Whilst I accept that the regulations require that referees be interviewed there are two reasons why, in this case, Mr Dodds was in my judgment entitled not to have done so. Firstly, I am satisfied that GF did seek to impose a limit on the scope of Mr Dodd’s intended discussion with his line manager, in particular by asking him not to discuss issues of domestic violence or of his cannabis habit. Without GF’s permission Mr Dodds could not properly have shared confidential information when interviewing referees. Secondly, once MR had withdrawn from the assessment there was no point in him in speaking to the referees. At that point Mr Dodds was instructed by the fostering team manager, appropriately in my judgment, to terminate the assessment.

137. Fourthly, Miss Kaur submits that there has been an inadequate assessment of the ability of GF and MR to make changes to their lifestyle and of their ability to sustain any changes made.

138. Whilst there is some validity in this point, it needs to be seen in context. That context is that (i) GF has been involved in two abusive relationships, the latter involving six police call-outs over a seven-year period between 2006 and 2013; (ii) GF has a history of a 30-year cannabis dependency; (iii) both GF and MR admit to binge drinking; (iv) GF has proved unable to give up smoking despite support from his GP; (v) GF and MR have failed to recognise their need for therapeutic help to address their problems; and (vi) there is clear evidence that there have been times, including recent times, when their relationship has been unstable. The evidence suggests that their ability to make and sustain changes is poor.

139. Fifthly, Miss Kaur submits that any delay occasioned by an adjournment to obtain an independent social work assessment would be purposeful. Only with the benefit of such an assessment would the court be able to undertake the global, holistic evaluation required by Re B-S (Children).

140. I have already referred to the statutory requirement in s.32(1) Children Act 1989 to complete care cases within 26 weeks. An extension may be granted if it is ‘necessary to enable the court to resolve the proceedings justly’. As Pauffley J has said, justice must never be sacrificed upon the altar of speed. If the court does not have the evidence to enable it to undertake a global, holistic evaluation or if a party is able to satisfy the court that one of the indicative criteria for granting an extension set out at paragraph 33 of the President’s judgment in Re S (A Child) is made out, then the court should be prepared to extend the timetable.

141. It does not follow from all of this that the prejudicial impact of delay should be ignored. The general principle that delay is likely to be prejudicial to a child’s welfare is enshrined in statute. The potential for delay to seriously prejudice a child’s welfare has been highlighted by the recent report Beyond the Adoption Order: challenges, interventions and adoption disruption[1] which states (page 272) that,

‘Three-quarters of children who experienced a disruption were more than 4 years old at placement with their adoptive family. Children who were 4 years old or older at placement were 13 times more likely to disrupt than those who were placed as infants….This much larger dataset highlights the impact of delay.’

 

142. Having made that point, I am entirely clear that if, in this case, I am satisfied that Mr Dodds’ assessment is inadequate and that further evidence by way of an independent social work assessment is necessary in order to enable the court to resolve these proceedings justly, then I must adjourn this hearing and give the permission sought by the mother.

143. Though not mentioned by Miss Kaur in her closing submissions, it is clear from the way the guardian’s case has been put that she considers there to be a further point in favour of an independent social work assessment and that relates to what the guardian believes to have been an acceptance by Mr Dodds that there needed to be an assessment of risk management. This is a second issue on which the guardian and Mr Dodds are not agreed on what was said between them. In his oral evidence Mr Dodds was very clear that he was not advocating a further assessment. I accept his evidence on that issue.

144. The arguments against allowing an assessment by an Independent Social Worker have been put modestly by Miss Hodges on behalf of the local authority and mirror points already made.

145. Firstly, Miss Hodges points to GF’s long-term parenting history. He has had four children by three different partners. The local authority’s final threshold document, accepted by the mother, relies in part upon the impact on her of the poor parenting provided by both of her parents. The evidence suggests that GF has not been a protective factor. When GF and LC separated GF left AB and CP, then vulnerable toddlers, in the care of their mother even though he knew that that risked them being exposed to risky adults and abusive situations. In her teenage years the mother has engaged in drug abuse and violent criminal behaviour. GF has proved himself unable either to prevent this from happening or to help her to escape from her destructive and chaotic lifestyle.

146. Secondly, Miss Hodges points to GF’s history of being involved in domestic violence. There was domestic violence in his relationship with LC. There has also been domestic violence in his relationship with MR. Following one of six police call-outs during his present relationship he was convicted of assault occasioning actual bodily harm. The most recent incident occurred only a little over a year ago. At the time of that incident, MR complained to the police that GF had grabbed her by the throat.

147. Thirdly, and intimately related to that last point, Miss Hodges points to the fact that the events which gave rise to all six police call-outs were fuelled by binge drinking. If accurate, and GF has not been able to satisfy me that they are not, his GP records suggest that in 2010 his alcohol intake was at a very high level. Although both GF and MR say that they now drink more moderately, I noted earlier that there was a conflict in their evidence as to their social drinking. I am satisfied that they are minimising the real extent of their drinking.

148. Fourthly, Miss Hodges points to GF’s 30-year dependency on cannabis. This is concerning. What is even more concerning is that he should have attempted to conceal this from both Ms Brotherhood and Mr Dodds and that MR should have sat by silently, knowing that he was being untruthful. GF says that he has not smoked cannabis since December 2013. GF’s inability to give up smoking cigarettes despite years of attempting to do so, with professional support, entitles the court, in my judgment, to be sceptical about the reliability of his claim to have given up cannabis.

149. Fifthly, Miss Hodges refers to the evidence relating to the state of the relationship between GF and MR. I have already indicated that I do not accept GF’s claim that they have been a very happy couple for the last 14 years. The police call-outs demonstrate clearly that that is not true. There is evidence that GF has himself had concerns recently about whether the relationship will continue. That is what he told Mr Dodds. He also appears to have said the same to his GP.

150. Sixthly, Miss Hodges reminds the court of the evidence relating to complex family relationships. The most troubling of these is the relationship between GF and the mother. MR says that the mother can wrap GF round her little finger. She has repeatedly made the point that if P were placed with GF and herself she has some concerns – understandable and reasonable concerns in my judgment – about whether GF would prioritise his relationship with her over his relationship with the mother. There is a risk of the mother undermining a placement of P with them. She makes no secret of the fact that in due course she would like to be able to care for P herself.

151. In light of that analysis, have the mother and the guardian demonstrated that an independent social work assessment is ‘necessary to assist the court to resolve the proceedings justly’? I have come to the conclusion that they have not. There is already more than sufficient evidence to enable the court to be satisfied that the prospects of an independent social work assessment leading to them being approved as local authority foster carers are somewhere between vanishingly small and non-existent. As for the possibility of making a child arrangements order, I am satisfied that the evidence already available is sufficient to enable the court to give proper consideration to that option. It cannot properly be said that an Independent Social Worker assessment is ‘necessary’ in order to enable the court to resolve the proceedings justly.

The local authority’s final care plan

152. The local authority’s final care plan proposes that P be placed for adoption. As judges were reminded by the Court of Appeal in Re B-S (Children), adoption is a last resort and is only to be ordered when no other course is possible in the child’s interests. Before the court can arrive at that conclusion the court must first consider all of the options which are realistically possible. This requires the court to undertake an analysis of the arguments for and against each option.

153. In terms of the realistic placement options which must be considered and evaluated in this case, I consider these to be to return P to the care of the mother, to place him with GF and MR, to place him with local authority foster carers or to place him for adoption.

154. At the beginning of this hearing it appeared that the mother was ruling herself out as a long-term carer for P. When she gave her evidence it became clear that if the court were not minded to place P with GF and MR then the mother seeks his return to her care.

155. The strongest argument in favour of a return to mother’s care is that she is P’s biological mother. She cared for him for the first two years of his life. She loves him very much. There is a strong bond between them. Although she accepts that earlier this year she was ‘sofa-surfing’ and had no settled home, she is now living in supported accommodation. She has not been in trouble with the police for over two years. She has shown that she has the capacity to make changes though has not yet demonstrated the capacity to sustain changes

156. Within these proceedings there has been an assessment of the mother. That assessment was negative. The assessor noted that the mother ‘struggles to be a young mother with responsibilities to fulfil on a daily basis to P’. That was evident in the circumstances in which the mother and baby foster placement ended. In accepting that placement with GF and MR would be better for P than placement with her, the mother acknowledges her current inability to meet the full range of P’s needs. The threshold findings, not challenged by the mother, make it clear that in her care P would be at risk of suffering significant harm. There is no evidence that would justify a finding that the mother could make the changes needed within P’s timescales.

157. Placement of P with GF and MR would  have the advantage that P would be cared for within his birth family. There is clear evidence, which I accept, of a positive relationship between P and GF and also between P and MR. There can be no doubt of the strength of their love for P, a love which P reciprocates. There is also clear evidence, which again I accept, of the commitment of GF and MR towards P. They genuinely want what is best for him and equally genuinely believe that they are able to provide the care that is best for him. Placement of P with GF and MR would also have the advantage of enabling P to continue to have direct contact with his mother.

158. Although I have found that there is no prospect of GF and MR being approved as local authority foster carers (as a result of which P could not be placed with them under a care order) that does not mean that they must be ruled out as carers for P. The court could make a child arrangement order and perhaps, in due course, a special guardianship order. Both of those orders could be supported by a supervision order. Although, initially, a supervision order would only last for twelve months, it would be open to the local authority to apply for it to be extended. It could be extended up to a maximum of three years.

159. Throughout the course of this judgment I have set out and reflected on the concerns relating to GF and MR. It is unnecessary to set them out again. In the context of their desire to care for P, those concerns are significant. To those concerns must be added the clear risk that the mother may undermine a placement with them.

160. The remaining options involve placement of P outside his birth family either in long-term foster care or in an adoptive placement.

161. The principal arguments in favour of long-term foster care are that P would remain a member of his birth family while being cared for and nurtured in a more stable and predictable environment and that he would be able to continue to have contact with his mother, GF and MR.

162. Against that, however, are the facts that at 18 he will cease to be a looked after child and though entitled to statutory leaving care services he would not then be assured of having a loving and supportive foster family around him; that foster care is less secure than adoption with a greater risk of placement breakdown; and that he will have to spend his entire minority coping what some children and young people experience as the indignity the status of a looked after child.

163. The final possibility is adoption. There are two principal arguments in favour of this option. Firstly, P would become, both in law and in fact, a member of a new family. This would bring both real security and, for P, the sense of that security. Secondly, membership of the new family is life-long. When he reaches the age of 18, rather than becoming a ‘care leaver’ entitled to leaving care services, P would simply become an adult child of his adoptive family, with an expectation that the love and support provided for him as a child will continue.

164. Against that is the fact that, if adopted, P’s contact with his mother and GF would be limited to annual indirect two-way letter-box contact. He is attached to his mother and GF. There will inevitably be a sense of loss when direct contact with his mother and GF comes to an end. He will also lose his identity as a member of his biological family. In place of the family into which he was born he will be grafted into a new family, a process the success of which can be reasonably expected but which cannot be guaranteed. As is evident from the research to which I referred earlier, adoption placements do sometimes break down, sometimes years after the child was placed.

165. In undertaking a holistic evaluation of those alternatives, I have in mind the welfare checklists in s.1(3) of the Children Act 1989 and s.1(4) of the Adoption and Children Act 2002.

166. So far as concerns s.1(3) of the 1989 Act, in my judgment sub-paragraphs (c), (e) and (f) are of particular importance. Section 1(3)(c) requires the court to have regard to the likely effect on P of any change in his circumstances. Section 1(3)(e) requires the court to consider any harm which P has suffered or is at risk of suffering. Section 1(3)(f) requires the court to consider the ability of the mother, GF and MR to meet P’s needs. 

167. It is clear that P must leave the care of his present foster parents at some point. Either he must return to the care of his mother or to the care of GF and MR (both of which placements can properly be regarded as risky) or he must move into long term foster care or to an adoptive placement. Whilst there are risks in placement outside his birth family, in my judgment those risks are significantly less than the known risks of returning him to the care of his birth family. In my judgment the evidence raises very real doubts about the capacity of the mother, GF and MR to meet P’s needs. I am in no doubt that if placed within his birth family P would be at risk of emotional and perhaps also physical harm.

168. Of the factors set out in the welfare checklist in s.1(4) of the 2002 Act, the key factor in this case is sub-paragraph (f):

‘the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including – 

(i)        the likelihood of any such relationship continuing and the value of its doing so,

(ii)      the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise meet the child’s needs,

(iii)    the wishes and feelings of any of the child’s relatives, or any such person, regarding the child.’

 

169. If P is placed for adoption then I accept that it is in his interests to continue to have some contact with his birth family. However, the evidence does not suggest that that should take the form of direct contact. In my judgment the local authority’s proposal for annual indirect two-way letter box contact would be sufficient to meet P’s needs.

170. I have already noted the opposition of the maternal family to the local authority’s plan that P should be adopted and have considered both their ability and willingness to provide long term care for P. However, the analysis of that evidence demonstrates that there are real concerns, concerns which cannot safely be ignored, about their ability to provide P ‘with a secure environment in which [he] can develop.’

171. I referred earlier to the provisions of s.1(5) of the 1989 Act and of s.1(6) of the 2002 Act so far as concerns the requirement to arrive at an order which is proportionate and which represents the least intervention by the state consistent with P’s welfare. I have come to the conclusion that in this case the evidence points very clearly to placement for adoption.

172. The court may only make a placement order if either the mother consents or the court concludes that her consent should be dispensed with. Her consent may only be dispensed with if it is satisfied that ‘the welfare of the child requires the consent to be dispensed with’. As the Court of Appeal made clear in Re B-S (Children), in this context ‘requires’ has the Strasbourg meaning of ‘necessary’ – what is demanded rather than what is merely optional or reasonable or desirable. In this case I am satisfied that P’s welfare does require that the mother’s consent to placement for adoption be dispensed with. I am satisfied that P needs the security and permanence which only adoption can offer. I therefore approve the local authority’s final care plan. I make a final care order. I dispense with the mother’s consent to the making of a placement order and I make a placement order.