England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT EAST LONDON

		11, Westferry Circus, London, E14 4HD
		14th September 2015

Her Honour Judge Carol Atkinson:

1. T, is a little boy aged 2. His Mother is MR. His Father is DL. He has two half-brothers. For the purpose of this Judgment his half-brother TO is of greatest significance; he was joined as an intervener in these proceedings on 11^th March 2015. The local authority is the LB Havering.
2. T is placed in foster care under an Interim Care Order; he has been there since January 2015 when proceedings were issued. Prior to that he was living with his mother.
3. The local authority intervened in this family as a result of concerns that T's mother was living with a dangerous and unsuitable man and also that her mental health was deteriorating. T's mother is Bipolar. The threshold facts are agreed and are set out in the final order. I am satisfied that on the basis of those facts the threshold is crossed. No-one seeks to suggest otherwise.
4. The evidence regarding the mother's prognosis, her future health and the likely impact upon T is clear and is not subject to challenge. The upshot is that neither the local authority nor the Guardian is able to support a plan for T to be rehabilitated to her care. Demonstrating considerable bravery, the mother now agrees that to be so.
5. From the outset of these proceedings, T's brother, TO, offered himself and his partner, MW, as alternative carers for T. The local authority were not supportive of this initially, largely because TO has a fairly extensive history of offending and involvement in drugs. TO and MW were not satisfied with this outcome and they privately funded a full Special Guardianship Order assessment by an independent social worker (ISW). That assessment was positive, subject to confirmation that TO was no longer using drugs (through a hair strand test). A subsequent test has proven negative. The local authority, to its credit, has amended its position to one of support for the couple. The Guardian joins with that support.
6. So, everyone now agrees that T should be cared for by TO and MW under a Special Guardianship order (SGO). Contact has been increased and T is ready to move to his brother's home right now. However, the local authority seeks an adjournment of the case for a further 6 weeks because they have not received all of the necessary statutory checks in respect of TO – specifically the DBS (Disclosure and Barring Service) enhanced check.
7. The mother and the proposed special guardians oppose this adjournment and invite me to make the SGO today with a view to T moving to live with his brother today. The Guardian has been excused attendance at this hearing as she is on annual leave and out of the country. Unaware of this barrier to T's placement, she has not provided a specific recommendation and so the child's solicitor, Mr Munro, presents her as neutral on this issue. However, knowing her views about the case, he nevertheless reminds me of her clear support for the placement, her concerns about further delay and invites me to balance the benefits of finality against the risks of not having a DBS check.

The threshold

8. There is no real dispute in this case. The threshold facts are agreed and as I have already set out the threshold is crossed as a result. What that means is that everyone agrees that at the date that the local authority took steps to intervene in this family, namely January 2015, T was at risk of suffering significant harm as a result of the parenting that he was receiving from his mother (s.31(2) Children Act 1989). The main concerns revolved around her inability to protect T from the rather obvious risk of danger from her partner who had been subject to a Sexual Offences Prevention Order and who was assessed as a high risk sexual predator and the general lack of stability at home. Both of these problems had their foundation in her deteriorating mental health brought about by a medically advised reduction in her medication followed by a unilateral decision on her part to cease taking her medication all together. Having read the papers in the case, I confirm that I agree with that and accordingly the threshold is crossed.

The welfare decision

9. Once the statutory threshold set out in s.31(2) Children Act 1989 has been crossed, T's welfare becomes paramount. In considering what order, if any, I should make in his best interests I am guided by the welfare checklist set out in s.1(3) Children Act 1989. I am mindful also of the imperative that decisions should be taken in a timely fashion in relation to children, and remind everyone of the general principle that any delay in determining the proceedings is "likely to prejudice the welfare of the child" (s. 1(2) Children Act 1989).
10. All parties are agreed that when applying the welfare checklist to the evidence in this case there is no doubt that it is in T's best interests that he should be placed into the care of his brother, TO, and his partner MW. The order I am invited to make to achieve this is also subject to agreement – a special guardianship order.
11. The local authority cannot sanction the making of a special guardianship order in favour of TO and MW, or indeed any order which would achieve the same, until they have completed their statutory checks and specifically, received the outstanding DBS check in respect of TO. So it is that they oppose the making of that order today. The issue, then, is whether I can and should make the order now.

Special Guardianship

12. The provisions governing the making of Special Guardianship orders are set out in ss.14A-F Children Act 1989 and the Special Guardianship Regulations 2005 (SI 2005 No 1109). Most significantly, for the purposes of my decision today, the court cannot make a Special Guardianship Order without a report (s.14A(11)) and that report must be in the prescribed form (s14A(8)). The matters which must be included in that report are listed in the Special Guardianship Regulations, Reg 21 and in the Schedule thereto. A DBS check is not one of the matters on the list.
13. Guidance issued by the Department for Education and Skills under s.7 Local Authority Social Services Act 1970 makes no specific reference to DBS checking and so adds little more. It seems to me then that there is no bar to making a Special Guardianship Order absent a DBS check.

DBS enhanced checks

14. There is no legal requirement that a person must have a DBS check before they can care for a child or indeed before a child can be placed in their care or an order made giving them parental responsibility. It is common sense that when considering whether to place a child with someone, there should be a proper investigation of their background and as part and parcel of that an enquiry into whether or not they have any criminal convictions and if so for what or whether they have been subject to any relevant criminal investigations. A DBS enhanced check is the acknowledged best evidence in this regard; the "gold standard".
15. When an enhanced check is required there are 5 stages before return. At stage 1 the DBS accept the application. At stage 2 the police national computer is checked and at stage 3 the children's and/or vulnerable adults list is checked. At stage 4 the local police searches start and at stage 5 there is completion and the documentation is sent out. The first 3 stages, subject to accurate form-filling, are usually completed within a week or so. The delay in completion and reaching stage 5 is generally over stage 4.
16. The police have 60 days from the initiation of stage 4 to complete their searches and what is more the DBS cannot chase the check until this time has elapsed. I have seen nothing which specifies whether this is 60 working days or calendar says and so I assume it to be the latter.
17. The progress of any application can be checked online. In the present case the process has reached stage 4 and has been at stage 4 now for two weeks. The information may take another 6 weeks – until 29^th September. There is nothing to be done to prompt a sooner response it would seem.

T's age and circumstances and his needs

18. T has been in foster care since January. Before then he experienced instability, lack of security and chaos at home. His need is for a safe and secure place which he can be assured is his permanent home and where he can thrive, be loved and nurtured. There is complete agreement as to where that home should be.
19. I invited the social worker into the witness box. Her evidence in both written and oral form has been invaluable. She told me that she had absolutely no doubt that T needed to move right now. When I asked her why she explained to me that he is becoming increasingly confused by his placement away from TO and MW, the two figures to whom he is now attaching himself. She told me that everything is in place ready for the move. Once moved he would need a short time to settle before he could ease into the child care routine arranged by MW to enable her to continue to work. They had a place for him in the crèche and it was hoped that he would be able to take it up from early/ mid September after the settling in period. Waiting until the end of September would jeopardise the place and would simply prolong the agony for this little boy and for TO and MW. When I asked her, if she could move T without a DBS, when would it be in his best interests to move she told me "today".

T's wishes and feelings

20. T is too young to express his wishes and feelings. Were he able I am sure he would express a wish to be with his mother but I am also aware of the importance to him of his brother, TO and TO's partner, MW. The allocated social worker has been clear that in her view he loves TO and MW and wants to be with them in preference to his foster carer. She described an occasion recently when she visited T he pressed a pretend phone to his ear and said "Megs, Megs…where are you?". That, she told me was a reference to MW and was a clear indication of where he wanted to be at that very moment.

How capable are those who wish to care for him of meeting his needs?

21. T's mother no longer puts herself forward as a carer for her son. She accepts that when unwell she has been unable to prioritise her son. Indeed she accepts that she has a tendency when unwell to make poor choices and by that means might expose T to danger. It is not always apparent to her when she is unwell.
22. TO and MW are well able to care for T. They have the benefit of a very positive Special Guardianship assessment. There is not the slightest suggestion that other than the outstanding DBS there are any other concerns about the. I should add that MW has an unblemished past.

TO's history

23. I already have full evidence regarding TO's past. A copy of his Police National Computer print out has been disclosed into these proceedings. I have not seen it but it has been seen by all professionals in the case and importantly by the Independent Social Worker who assessed him and his partner positively as carers for T. He told her that he started offending when he was 15. His history includes drug related offences, theft, and public order offences. He has been to prison. However, his last drugs related offence was at the beginning of 2012. His last offence was in relation to an assault. That was in January 2013. There has been nothing since.
24. I invited him into the witness box. He told me that he has not committed any further offences since that last offence in 2013. He tells me that he has not been in trouble with the police, he has not been arrested or invited for interview for anything and so far as he is aware they are not investigating him in relation to anything. He has not been involved with drugs.
25. The ISW noted that his partner, TW, disapproved of his offending and his lifestyle choices. She has made clear that they are unacceptable and this it would seem has strengthened his resolve not to fall into those ways again.

Effect on T of a change in his circumstances

26. Like everyone else in this case I am quite satisfied that T would benefit greatly from a move from foster care to the home of TO and MW. Delaying that move will have an adverse effect upon him.

Harm suffered or at risk of suffering

27. The justification behind an inability to agree to an order being made absent a DBS check is that it exposes the child to the risk of harm. How great is that risk? I have the evidence of TO and I accept what he says to me. He has been assessed by the ISW and others as someone who is open and honest in his dealings with the authorities. I have no reason to believe that he would lie and about his circumstances, not least because he has heard the local authority make it clear that discovery of relevant further offending might affect their recommendation.
28. On the basis of the evidence that I have heard from the social worker, it would seem that a delay in the making of an order today will likewise have the potential to cause harm to T arising out of his need for a permanence decision now. This would not be significant harm and it would be of limited duration but it is right that I should balance that against the risks to T arising out of not having the gold standard evidence to verify the evidence that he has no further offences.

Discussion

29. There is no reason why I cannot make the order that everyone agrees that I should make absent the gold standard DBS check in respect of one of the proposed special guardians. With T's welfare as my paramount consideration, the question is whether I should do so or whether I should delay the decision.
30. There are situations in which proceeding without an enhanced DBS check would be high risk. In my assessment this is not one of those situations. I have a great deal of information about this young man, TO. I have clear evidence about his offending past from his PNC check. My assessment of him accords with that of the professionals. He was open and in my view honest when he confirmed to me that he understood the importance of telling the truth about any recent police interest in him. I am not looking to place T with him as a single carer. He has by his side the considerably capable MW. She is a young woman with no concerning history and who has supported TO in separating himself from poor influences. The risk is that TO has been involved in further criminal activities is in my view low.
31. I balance that risk against the actual harm that T will experience in not moving now and the potential additional disruption in the event that the delayed move causes a loss of the child care placement.
32. Balancing those factors I am quite clear that I should make the Special Guardianship Order today and that is what I intend to do.