England and Wales Family Court Decisions (other Judges)

IN THE BRISTOL FAMILY COURT

HHJ Wildblood QC:

1. Introduction – I am releasing this judgment for publication under paragraph 16 of the Practice Guidance issued by the President on 16^th January 2014 and entitled 'Transparency in the Family Courts'. It will of particular public interest to those in this locality. I have considered the factors in paragraph 19 of the Practice Guidance, I have anonymised the judgment to protect the Article 8 rights of the family and I have read out the judgment in court so that any corrections could be made. I am publishing the judgment in this case because it is an example of the following:

i) The unnecessarily protracted use of accommodation of a child under section 20 of The Children Act 1989. This child was accommodated with short term foster carers for 12 months before these inevitable proceedings were issued and has now been with them for about 16 months.

ii) The delayed identification of the need for therapeutic intervention for this mother. 19 months after the Local Authority intervened in a family where the mother had obvious difficulties it was identified that the mother needed therapy. It was then said that, by then, the benefit of therapy was 'outwith the timescales of the child'. If psychological evidence was to be obtained with the invariable recommendation of therapy (and I have never known a psychologist not recommend therapy in a report) I cannot understand why it was not obtained much earlier.

iii) Failure to identify realistic options leading to the adjournment of this final hearing and a consequent inability to meet the timetabling demands of section 32 of The Children Act 1989, as amended.

2. These are public law proceedings that have been brought by Gloucestershire County Council in relation to a 6 ½ year old boy to whom I shall refer as C. His mother ('the mother' as I shall call her) is in her mid 20's, lives with her own mother now [C73] and is heavily pregnant. His guardian is Mrs Elizabeth Ewart James. C's father plays no part in these proceedings. C has a 3 year old half brother, A, who lives with his father (i.e. not C's father) and with whom C has contact twice a week; A's father is referred to as Mr D in this judgment. These proceedings were transferred to me by the Gloucestershire magistrates because they reveal very poor practice within the Local Authority.
3. Since June 2014 C has lived with Mr and Mrs B, who are excellent 'short term' foster carers. It is unsurprising that C has developed a strong attachment to them as they have to him. I would like to record my thanks to them for the care that they have given to C.
4. Following a heavy IRH on 8^th September 2015 the case is listed before me for final hearing for the rest of this week. That final hearing cannot proceed because there are realistic options in relation to the future care of C that have not been assessed by the Local Authority. That means that large amounts of public money and time have been wasted in a Local Authority involvement that has spanned 16 months. All parties now say that the case has to be adjourned. Eventually, I have had to give up my attempt at keeping this case on the rails of this final hearing and have had to accede to adjournment. To adjourn a case where there has been lengthy Local Authority involvement with a family in a straightforward case is absurd but now unavoidable.
5. The current position of the parties is this:

i) The Local Authority originally filed a care plan that proposed that C should be adopted. However, following the IRH, it has now filed an amended care plan in which it contends that there should be an assessment of no more than three months as to whether Mr D could care for C. The amended plan suggests that, if C cannot live with Mr D then the care plan would revert to adoption. I say immediately that, in three months time this child will be nearly seven years old and I foresee considerable difficulties in any argument that adoption is in his paramount interests given his circumstances (not least as a child who lived with the mother until he was aged 5), his existing family connections (e.g. having frequent contact with the mother and with A) and background.

ii) The mother seeks the return of C to her care. She proposes that there should be further assessment of her ability to care for C but recognises that her first aim should be to maintain the care of the baby that is shortly to be born to her. If she is able to demonstrate that she can care for that baby her position in relation to C will be much stronger, plainly.

iii) The guardian currently argues that a care order should be made on the basis that C should remain with his current carers (Mr and Mrs B) and have contact at least once a month (preferably once a fortnight) with his mother, A and the expected baby. The Local Authority's response was that it would give no commitment to C remaining with his current foster carers if a care order were to be made, even if the court made such an order having expressed the view that he should remain there. Thus, even though the guardian recommends that C should remain with the foster carers, the child expresses a wish to stay there and the foster carers offer to care for him, the Local Authority have not regarded that to date as a realistic option to consider.

6. C grew up in the primary care of his mother until 28^th May 2014 when, at the age of 5, he was removed from the mother under police powers of protection and then accommodated by the Local Authority with foster carers. The mother does not accept that the threshold criteria in s31 (2) of The Children Act 1989 are fulfilled and has also issued a claim for damages under The Human Rights Act 1998 in relation to the circumstances in which C was removed from her care and the manner in which the Local Authority has conducted itself in relation to C. On the same day in May 2014 A went to live with Mr D.
7. For no valid reason it took the Local Authority a year, that is until 15^th May 2015, to issue these proceedings. In its application the Local Authority said at B9: 'C was the subject of a child protection plan from August 2013 until 19^th May 2014 as a consequence of neglectful parenting. The concerns related to the dirty and unhygienic home conditions and the mother's mental health and its impact upon her parenting and capacity to meet her child's needs. A week after de-registration a further child protection referral was received. C was accommodated on 29^th May 2014 following police powers of protection being used on 28^th May 2014. The police removed C as a consequence of a person known to be a risk to children continuing to have contact with him (against professional advice) and because of the unsuitable home conditions. On 29^th September 2014 the mother was evicted from her flat which had been significantly damaged. The mother was sofa surfing. Roger Hutchinson, psychologist, completed a report on the mother on 9^th March 2015. This concluded that the mother experiences social anxiety and schizoid and paranoid traits with poorly developed social, functional and adaptive skills. Therapy is indicated over a nine month period'.
8. C has therefore been with his current foster carers for 16 months of his life, has settled with them and is integrated into life with them. His mother has been having contact with him twice a week for sessions lasting one hour and although there have been inevitable niggles about that contact, a condensed analysis of that contact could not express it as falling below the grasp of the adjective 'reasonable' on my current reading of the papers and submissions that were made at the IRH. C's educational and social connections, at an important time of his life when he is settling into school, have all been made from the base of his current foster home. The foster carers have done an excellent job in caring for him and, in his letter to the judge, C says 'my family is [the foster father, the foster mother and their cat]' and draws the foster father with a big smile on his face. The guardian reports that C is making 'greatly improved progress at school and his health has improved' since living with them [A14].
9. On the 21^st August 2015 the Local Authority issued a placement application. In her position statement the guardian says: 'The guardian remains concerned about the likelihood of a suitable adoptive placement being identified given C's age and his family status. The guardian does not consider such a placement would be in his best interests given the impact it would have on his relationship with his family in particular his brother, A. This sibling relationship is very important to C. The guardian would be concerned that the risk of placement breakdown would be significant especially given the difficulty C will undoubtedly have in moving from his current foster carers… Given that it would appear that C could have a long-term future with his current carers this would be preferable for him than a move to an alternative placement, such as with Mr D as it is likely to be more risky. It would require C moving and a considerable change in his life'.
10. The guardian recommends that, if C does remain with his current carers, he should have contact with his mother, A and the new born baby at least once a month – she says 'it may be appropriate for contact to be once a fortnight subject to the foster carers being able to commit to this. Contact would need to be kept under review'.
11. At the IRH, on 8^th September 2015, I was told that the current foster carers were not offering C a long term home. The guardian says in her position statement: 'since the IRH on 8^th September 2015 the guardian has spoken to C's current foster carers. They have confirmed they have never said they would not keep C long term as foster carers. They would not wish to consider special guardianship or adoption because they see themselves as foster carers and may well wish to foster another child and would wish both children to be placed with them on the same basis. The foster carer has also informed the guardian that Mr D has on a number of occasions said that he would be prepared to care for C if there were no other options'.
12. It is right that, on 27^th August 2015 there was a discussion between the adoption social worker, TG, and the foster carers. I have the case note in relation to that. This conversation therefore took place six days after the placement application had been filed by the Local Authority (so the Local Authority had already ruled out long term fostering then). The foster carers were saying at the time of that note that they did not feel able to adopt C. They are not recorded as saying that they would not foster C. It took one conversation between the guardian and the foster carers to clarify matters. When asked directly by the social worker on an unspecified date (but after the IRH) 'the foster father confirmed that he and the foster mother would have C for as along as is needed in long term foster care with a care order if they were supported by the Local Authority'. The clear impression that I have, having read the papers, heard the IRH and listened to submissions today, is that the Local Authority did not consider the possibility of long term fostering with the foster carers and, once it regarded the mother as ruled out, its linear analysis took it to adoption.
13. As to Mr D (A's father):

i) The guardian says in her position statement for this hearing: 'The court may still consider there should be an assessment of Mr D as soon as possible as an alternative long term placement under a care order. The guardian's view is that this placement should only be considered in the event that the current carers are unable to care for C...The guardian has spoken with Mr D since the IRH and he has said that one of his reasons for not wanting C to remain in care was because he himself had been in care and grew up not seeing his brothers and sisters. The guardian understands that Mr D would wish to be rehoused if C were to live with him.'

ii) Some time after 4^th March 2015 Mr D had told the Local Authority that he did not consider that he would be able to care for C as well as A [C193]. In the viability assessment of September 2015 (after the guardian had contacted the Local Authority) the Local Authority stated that Mr D had not thought through his ability to care for C and had made a sudden decision to offer to care for him. Of course, if the guardian's information from the foster carers is right, he was saying that he wished to care for C for some time. It seems very unfortunate indeed that, knowing that A was having regular contact with C, Mr D was not approached again before the Local Authority made its placement application.

14. I am deeply critical of the Local Authority for the procedures that it has put in place in this case for the following reasons:

i) Having been involved with this mother since August 2013 and having accommodated this child in May 2014 it is inexplicable that it took a year for the Local Authority to issue these proceedings. That has absolutely nothing to do with limited resources. It is simply bad practice.

ii) The Local Authority knew the mother's level of functioning but still took until 9th March 2015 to identify that this mother needed therapy. Knowing the mother's level of functioning why did it take 19 months (from August 2013) to do that? How can it be regarded as satisfactory for the Local Authority now to say that the mother needs therapy which is outwith the timescales of the child? For instance, if a psychologist's report had been obtained within three months of C being accommodated (i.e. in August 2014) there could have been 13 months of therapy by now at far less expense than the cost of these proceedings leading to the possibility that the consequences of this mother's unfortunate background could have been mitigated with the child receiving an upbringing with her.

iii) I regard the placement application as having been inadequately considered (how could the Local Authority have considered the options for this child when the possibility of C remaining with his current carers or living with A had not been clarified?).

15. What are the options that need to be considered? They are these:

i) That C should be rehabilitated to his mother. Of course, nature, law and common sense require that it be recognised that the best place for a child to live is with his natural parent unless proven and proportionate necessity otherwise demands. As matters stand the professional evidence is all stacked up against this mother but her case will require very careful consideration at a final hearing.

ii) That C should continue to be a child fostered by Mr and Mrs B. If the Local Authority will not support this the only way in which C could live with the foster carers would be through private law orders. If special guardianship orders were to be proposed there would need to be a report under s14A(8) of The Children Act 1989. Therefore I need to flush out what the Local Authority is saying. If it will not agree that C should remain with the foster carers (should the court so recommend on the making of a care order and a rejection of the placement application), I will have to give directions for a special guardianship application to proceed (a written application is not necessary if I so determine – s14A(6)(b) of the 1989 Act). The possibility of C remaining with the foster carers is unassessed by the Local Authority and there has not been sufficient discussion with them.

iii) That C should live with Mr D and A. This is also unassessed. There is no blood relationship between Mr D and C but there is a blood relationship between A and C. They have a clear fraternal attachment (in which C is A's big brother). That possibility remains unassessed also.

iv) That C should be placed for adoption. That is an option upon which I have already commented. I am not suggesting that there are difficulties about that option on the basis of age alone. I say that there are difficulties about it because of the particular circumstances of this child.

16. Therefore today I have had to give directions for the future of these proceedings. By the time that the case comes back the new baby will have been born, and I wish the mother well with the birth. However, the advent of the new baby will mean that there are additional complications that will arise in ensuring that the best solution is found for C.
17. I have given this judgment in writing so that there is a formal record of what has gone wrong in this case and how matters must now be put right. The Local Authority must consider the realistic options that arise and must put its case into order.
18. Proper plans must be put in place for the birth of the baby and where the inevitable assessment of the mother and the baby will take place. That should have been done already. The mother is in and out of hospital at the moment and it is manifestly unfair that, as well as dealing with the physical demands of impending birth and repeated hospital appointments, she is also having to deal with the uncertainties of these proceedings and a lack of knowledge about what will happen when she does give birth – where will she be living and what is planned for the baby?
19. The Local Authority must therefore look at the options that arise and file proper evidence in relation to them. The case will have to come back before me later this week when I will have to give further directions as to how that will be achieved. It is deeply frustrating that a case such as this has to exceed the timescales provided by section 32 of The Children Act 1989 and that should be recorded as having been caused by systemic failure by the Local Authority.

HHJ Stephen Wildblood QC

14^th September 2015.