England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT CAERNARFON
(Sitting at Llangefni)

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF E (A CHILD)

		29th October 2015

 


JUDGMENT 29^th October 2015

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application by Anglesey County Council for a Care Order in respect of a child I shall identify in this judgment as E, born on 27^th February 2015.
2. Because of the poor performance by this Local Authority with regard to this application over the last three months or so, and the issues of public concern which arise, I shall direct that a copy of this judgment shall be transcribed in an anonymised form and prepared at public expense. Copies will be made available to all the parties represented, to the Magistrates who originally had dealt with this application, and subject to the usual directions with regard to anonymity, the judgment may be published on the Bailii website for wider public dissemination, as indicated in the President's guidance.
3. The parties to this application and their legal representation are as follows:

(i) Anglesey County Council, represented by Mr Julian Lloyd;

(ii) the mother, who is twenty-one years-old, was present in Court yesterday but not today, represented by Mr Owen-Casey;

(iii) the father who is twenty years-old, and was not present either yesterday nor today, represented by Mr Jamieson; and

(iv) E, represented by his Guardian, Mrs Dickie, and by his solicitor, Mr Jones.

4. In the course of this hearing I heard oral evidence from the Guardian only under PD16A paragraph 6.7. She supplemented the written report with oral evidence which was recorded by the Court yesterday.
5. The mother decided not to give any oral evidence, but there has been prepared on her behalf a position statement confirming her position, and I shall turn to that later in the judgment.
6. No Local Authority key social worker was required to give oral evidence in this case, and accordingly I have considered the application on the basis largely of the documentation which has been filed.

The background

7. This application was issued in March 2015, and it was allocated to the Magistrates tier of the Family Court. The issues raised by the Local Authority's Threshold Document confirmed the suitability of that allocation decision, and the threshold primarily relied upon the following features:

(i) the parents' youth and inexperience of parenting;

(ii) the limited parenting capacity indicated by the pre-birth consideration of the parents;

(iii) the father's dominating and overbearing personality in relation to the mother;

(iv) the mother's limited intellectual capacity, with a full-scale IQ Assessment of 74; and

(v) the limited familial support available to both parents, and their difficult upbringings providing a poor template for parenting with regard to the two of them.

8. The placement options for E became defined from a fairly early stage; either the parents together or singly could offer 'good enough' care, or permanence by way of adoption was the only other realistic alternative. No suitable familial carer was presented in this case.
9. The Magistrates rightly concluded that the application could be completed within 26 weeks, and the case was timetabled to a Final Hearing at the start of September 2015. The Local Authority quite properly offered the parents assessment opportunities with E at a residential assessment centre (and following the granting of an Interim Care Order) at the start of March 2015.
10. From 21^st March 2015 to 12^th June 2015, E was placed at Kaleidoscope in M [name of town given], with the parents initially, and then after the father walked out of this placement on 6^th May 2015, E and the mother remained there together.
11. From June 2015 the mother moved with E to a Mother and Baby foster placement. This allowed her to develop her relationship with E, and it gave her the opportunity to demonstrate to others her parenting capabilities.
12. At page E48 there is an Order of the Magistrates dated 4^th August 2015, recording that the Agency Decision Maker of the Local Authority would make a final decision with regard to the Local Authority's Care Plan by 12^th August 2015. This timetable, although tight, would have allowed the case to be considered by the Magistrates in accordance with the 26 week timetable originally outlined. That, however, did not occur.
13. On 17^th August 2015, the Local Authority applied to extend the period of the mother's assessment, more particularly by a move to semi-independent/supported accommodation in X [name of town given], provided by an organisation known as PSS. This in effect would represent the third consecutive residential placement for E over a five-month period.
14. The Magistrates were obviously concerned about this application, and they transferred the case to Circuit Judge level, and I considered the application upon my return from holiday on 14^th September 2015.
15. I infer that the Magistrates were displeased by this course of events because of indications provided by the Local Authority that they had finalised their Plans for E. There is a 'Final Statement' (see B37) from the key social worker, Yvonne Jones, dated 31^st July 2015, which concludes as follows:

"For the reasons set out in this statement, and on the basis of the evidence which has been filed and served, the Local Authority concludes that neither parent is able, either alone or together, to parent E. The Local Authority's assessment will be presented to the Agency Decision Maker with an urgent request for her to give an indication as to whether or not E is a child suitable for adoption, and analysis of the options available will be filed, along with the Parenting Assessment".

16. Accompanying this conclusion (see B38-B65) there appears a negative Parenting Assessment, dated 4^th August 2015, undertaken by the Local Authority and the following recommendation is set out in section 7 (see B65):

"The Local Authority is of the view that it is too early to say that the mother has the ability to parent independently. The Local Authority proposes that the changes that are required for the mother to parent E safely, and independently in the community, would not occur within the timeframe of the child. In line with this the Local Authority proposes that the track of adoption is pursued for E".

17. The Magistrates may well have been bemused, to put it mildly, by the suggestion that the Local Authority, despite the above written conclusion, was embarking upon a renewed consideration of the mother's position as a sole carer for E, with a rehabilitative Care Plan.
18. When the application came before me on 14^th September 2015, it was apparent that the Local Authority's 'change of heart' was not supported by E's Guardian, nor was the application for a further assessment of the mother supported by the Guardian either. Unavoidably at this juncture, the case had crossed the 26 week timescale, and an extension under section 32 Children Act 1989, was sought.
19. I refused the Local Authority's application for an Assessment under section 38(6) Children Act 1989, and I extended the timetable to 28^th October 2015, when I would hear the Final Hearing over three days, and directed the Local Authority to file and serve its Final Care Plan and evidence by 2^nd October 2015, with the parents' responses by 9^th October 2015, and the Guardian's report by 16^th October 2015 (see A59).
20. The reason for this extension was set out clearly in the Court's Order. It was due to the Local Authority's failure to prepare a Final Care Plan in accordance with the Court's direction. That is a key requirement of section 31(A) and section 31(3A) Children Act 1989. The need for any further assessment, and attendant delay for that reason was not justified under section 32 Children Act 1989 (see paragraph 8(a)(iv) of the Court's Order at page A58).
21. I indicated to the Guardian that if in due course the Local Authority maintained its revised Plan of rehabilitation for the mother, and she (the Guardian) pressed for adoption, that issue could only be resolved on the basis recently described by the President, Munby LJ, in Re T [2015] EWCA Civ 983 at paragraphs 38 and 39. The Court could request a modification of the Plan, however, if the Local Authority adhered to the Plan the Court's options were limited to:

(i) endorsement of the Plan as the least worst alternative;

(ii) dismissal of the application; or

(iii) granting a Private Law Order, with or without a Supervision Order.

22. When I saw the Local Authority trial bundle on Monday of this week, in preparation for this hearing on Wednesday 28^th October 2015, the indications were that the Local Authority was sticking to its plan for rehabilitation. In a final statement of evidence dated 1^st October 2015, another social worker, Siân Hodson, and her manager, Debbie Reed, proposed a Final Care Plan for rehabilitation (see B75-B79). The Local Authority had concluded that:

"Mother can provide adequate care for E" (see paragraph 15 page D79).

25. The Final Care Plan dated 29^th September 2015, (see C88-C101) sets out the details of this Plan for reunification. A range of services were identified for the mother and E, who would stay at the PSS placement for a further two months, before embarking upon a Pathway Plan for independence.

"The Local Authority is of the view that it is in the best interests of E to remain in the care of his mother under a Care Order" (see C95, paragraph 4.3).

26. Contact for the father was proposed (see C96), such contact being supervised by the Local Authority.
27. At C135-137 there is a Placement Report, and at C138-159 a Pathway Plan for the mother and E, which adds 'flesh to the bones' of the Local Authority's Plan for rehabilitation.
28. Finally (see B71-B74), as directed by me, there is a statement from the Local Authority's Head of Children's Services, Miss Anwen Hughes, as the Local Authority's Agency Decision Maker, setting out the considerations which had led the Local Authority to the U-turn between the documents filed at the end of July 2015/the start of August 2015, and the documents I have identified, prepared at the end of September 2015/start of October 2015.
29. At paragraph 4 of that statement it is apparent that Miss Hughes had scheduled an "Ought to be Placed" decision for 12^th August 2015. She was dissuaded from making that decision by the advice of her Interim Service Manager, the Team Manager, and the Independent Reviewing Officer of the Local Authority, as Miss Hughes sets out at paragraphs 5 and 6 of her statement. The Agency Decision Maker asked the key social worker to review the Parenting Assessment, and the Agency Decision Maker received copy of this document on 7^th  August 2015 (it would appear from Miss Hughes' statement).
30. The approval of a Care Plan (other than a Care Plan for adoption) is delegated within this Local Authority to the Service Manager (Operations) and apparently does not require an Agency Decision Maker decision. The "Ought to be Placed" meeting on 12^th August 2015, was convened, but E's case was not presented, the Service Manger (Operations) indicating that the Primary Care Plan for E was rehabilitation. Presumably such a Plan did not require the approval of Miss Hughes, since it did not propose adoption as its primary outcome.
31. However, somewhat confusingly, the Agency Decision Maker (Miss Hughes) in her statement also makes reference at paragraph 9 to a further "Ought to be Placed" decision, which was scheduled for 24^th September 2015. This I am afraid, conveys a sense of profound uncertainty about what the actual intention of the Local Authority was for E; adoption or rehabilitation? Was the Service Manager's (Operations) decision intended to be a final or a provisional outcome?
32. I am afraid Miss Hughes' statement of 30^th September 2015, (see B74) simply does not clarify this issue. These issues of internal decision making need to be clarified by this Local Authority with urgency, to avoid the confusion which became apparent in this case.
33. There matters rested until the start of this hearing. In her report dated 23^rd October 2015, the Guardian indicated at paragraph 2 that the mother had been visited by a local authority social worker on 22^nd October 2015, (Thursday of last week) advising the mother of a change in the Local Authority's Care Plan, causing the mother "great distress". The Guardian in these circumstances was unable to make a final recommendation in her written report, since she was uncertain about the status of the Local Authority's last published document on 29^th September 2015, which in any event she (the Guardian) had previously opposed.
34. On the first morning of this hearing (yesterday) I was handed by the Local Authority's counsel, Mr Lloyd, the confirmation of the Guardian's news. A Final Care Plan proposing adoption for E, accompanied a statement of evidence from Siân Hodson:

"The Local Authority are concerned that the mother is unable to meet E's needs when he is unwell".

35. I should indicate that E was recently admitted to a local hospital on 26^th October 2015, an episode which is referred to in the Local Authority's Final Statement.
36. Accordingly the Local Authority was of the view that the Contingency Plan for adoption should become the Primary Plan.
37. The mother had reported on 26^th October 2015, that E had stopped breathing and that he had turned blue, however, I have no medical information from the hospital about this episode whatsoever, and I am afraid, therefore, I can reach no conclusion about it.
38. Other than this recent period of hospitalisation, this further change of heart by the Local Authority (so far as I am aware) was not occasioned by any other precipitating incident. It appears to represent, as the mother's counsel indicated to me yesterday, not a triggering event, rather a reappraisal of events and records which Mr Owen-Casey submits, could have been communicated to the mother and to her legal advisors, and to others involved in this case, far sooner. To communicate the news to the mother last week, so close to the Final Hearing, dashing her hopes which had previously been raised, was wholly unsatisfactory.
39. I was told that the mother and father's counsel had received the further amended Care Plan on the first day of this hearing yesterday. The Court may have been emailed a copy before yesterday, however, bearing in mind the venue of this hearing, and the travelling distance for most involved, it is not wholly surprising that these documents in written form only received the attention they deserved on the first day of the hearing when hard copies were distributed.
40. In any event, the Local Authority's Final Care Plan was due on 2^nd October 2015, and not 27^th or 28^th October 2015; that after all was the Court's direction.
41. The Court sometimes has experience of a change of heart, a U-turn by a party, by a Guardian, and by a Local Authority. However, it is seldom that a Court is confronted by an S-turn, particularly in relation to such an important document as a Final Care Plan, this manoeuvre being undertaken within a three month period. I simply fail to understand what has caused the Local Authority such difficulty in this case. The threshold is by no means an exceptional one. The realistic options are confined to two, care with the mother or adoption. There is a wealth of assessment material, the mother and the father have well and truly been tested with E in a number of separate environments. What is required is analysis, conclusion and decision.
42. If there is a genuine disagreement between a Guardian and a Local Authority, that is by no means uncommon and ultimately it is resolved by the Court. Why then has this Local Authority found it so difficult to formulate a Care Plan within 6 months and stick to it? Surely it is obvious that repeated changes of heart, particularly when communicated at the door of the Court, or as near as makes no difference, does little to establish confidence in the mother with regard to the process undertaken. She has every right to feel aggrieved about the process utilised in this case. This local authority needs to address some fundamental training issues to prevent "flip-flops" of the kind seen in this case from recurring in the future, causing such distress to lay parties who are involved in the case.

The position of the parties, having regard to these developments

43. The father has indicated that he does not intend to attend this hearing. There is no statement of evidence from him, and he appears resigned to an acceptance of a Care Plan of adoption for E. The Guardian indicated that in her final report, following a discussion with the father on 3^rd September 2015 (see internal pagination 7 of 13). That is the only information available to me which in circumstances I accept about the father's position.
44. Mr Jamieson, on behalf of the father, obviously cannot consent to the Local Authority's Plan, but in these circumstances without a client, without a statement, and without up to date instructions, the father's counsel cannot actively oppose the Local Authority's Plan.
45. On the first day of the hearing the mother needed time to assimilate and respond to the changes which I have outlined already. She was allowed most of the morning of the first day to consider the position and to provide instructions for her counsel. I indicated in terms that every allowance would be made for the mother, who was not to feel pressured in her response.
46. The mother did have some forewarning of the Local Authority's revised Plan, as I have indicated already, and she may have formed her own conclusion about her innate capacity to parent E, even with the support outlined by the Local authority in the earlier Plan for rehabilitation.
47. She is young, inexperienced, and without maturity or resilience. With time and with a loving and supportive partner there is no reason why she cannot parent a child into adulthood. She herself decided yesterday, and gave instructions to Mr Owen-Casey, that despite or perhaps because of her love for E, she recognised at present that she could not undertake this task. Accordingly the mother, after careful reflection, indicated to me through her counsel that she did not oppose the Local Authority's revised Care Plan, that position being confirmed in her written position statement.
48. As I have indicated already, the Local Authority's Plan is now supported by the Guardian, who reaffirmed in her oral evidence that despite some improvement by the mother there were "lots of areas which caused me concern about her parenting". Mrs Dickie indicated to me that her views were "stronger now than they were before".
49. The mother in the written assessments is reported not to be ready for independent living with E for at least a period of 12 months, and there is some indication that the mother herself has suggested a two year timescale.
50. As I have said, she is lacking in confidence, and her innate ability to cope with the innumerable contingencies of parenthood is limited. Therein lies the risk so far as E is concerned.

The Final Care Plan

51. Regrettably, because of the Local Authority's irresolution, this application for a Care Order is not accompanied by an application for a Placement Order, which could otherwise be expected. Such an application for a Placement Order will have to be issued separately in due course.
52. The Local Authority propose a closed adoption for E, with the usual provision for agency letterbox contact, but in an addendum they remain open (subject to the view of any future adopters) to some limited direct post-adoptive contact for the mother solely, if the mother would be able to manage that. They are also open to the prospect of the mother meeting any prospective adopters in due course to offer her reassurance about where E ultimately will be living.
53. The Local Authority propose an immediate placement for E, with local authority foster carers, which I apprehend has now taken place overnight. The mother will have the facility to remain in her accommodation in X [name of town given] pending a planned move from that facility. Three-weekly contact is proposed for the mother with E, and that in due course will be tapered following the making of a Placement Order, leading in due course to a farewell session of contact.
54. Subject to a Risk Assessment of the father, the Guardian suggested one farewell visit for him, and the Local Authority will have to consider that proposal.
55. As I have indicated, in general the Local Authority's Plan was supported by the Guardian in this case.

The legal provisions to be applied and the conclusion

56. Before I can make a Final Care Order, the threshold of 'significant harm' under section 31(2) Children Act 1989, must be established. In the absence of protective orders, these parents would not have been able to manage E's care to a 'good enough' standard, and on the basis set out in the background section of this judgment, the threshold summarised by me is established on a balance of probability.
57. I must consider the Local Authority's Care Plan, having regard to the paramountcy of E's welfare, and applying the 'welfare checklist' provisions under section 1 Children Act 1989. In accordance with the Convention, the Care Plan must be a proportionate and a necessary response to the risk of harm. In Re B [2013] 2FLR 1015, a Care Plan depriving a birth parent of his/her care of a child by way of an adoptive placement outside the birth family is to be considered as a last resort, where nothing else will do .
58. Where there are several competing realistic outcomes, then a pros and cons analysis in accordance with Re B-S [2014] 1 FLR 1035 is required, and the Court must deploy the process of deductive reasoning, identified by Ryder LJ in Re Y [2015] 2 FLR 615 paragraph 24.
59. However, the Court is required to consider only realistic options. That was said in the case of Re R [2015] 1 FLR 715 by the President of the Family Division, Munby LJ. At paragraph 59 of Re R he says:

"Re B-S does not require the further forensic pursuit of options which, having been properly evaluated, typically at an early stage in the proceedings, can legitimately be discarded as not being realistic.  Re B-S does not require that every conceivable option on the spectrum that runs between 'no order' and 'adoption' has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are 'realistically possible'."

He goes on at paragraph 62 to say:

"In many, indeed probably in most, cases there will be only a relatively small number of realistic options. Occasionally, though probably only in comparatively rare cases, there will be only one realistic option. In that event, of course, there will be no need for the more elaborate processes demanded by Re B-S. The task for the court in such a case will simply be to satisfy itself that the one realistic option is indeed in the child's best interests".

60. Having regard to the positions adopted by the mother and the father in this case, and the total absence of any familial carers, this is one of those rare cases where only one realistic option remains. Long-term foster care for a young child like E is not ordinary family life. If E's parents and wider family cannot care for him, then the State is obliged to make provisions for alternative family life, and it is adoption which most closely resembles ordinary family life for a child as young as E. An uncertain future as a looked after child is not the best, nor a realistic option in this case.
61. Accordingly, having found the threshold to be established, and having regard to the positions of each of the represented parties, I approve the Local Authority's Care Plan, and I make a Final Care Order in this case. There should be a recording that the threshold has been established. The Court approves the Local Authority's Final Care Plan with the addendum. ERTJ is placed in the care of Anglesey County Council. Any Placement Application issued herein will be allocated either to Her Honour Judge Lloyd, or to myself. HMCTS shall provide a transcript of today's judgment at public expense. One copy will be retained on the Court file in anticipation of placement proceedings, and other copies will be disclosed to the parties' solicitors, to the Magistrates who were previously involved in this case and their legal representative, and to Bailii in accordance with the President's guidance. There will be public funding assessment for the parents and the child.
62. I should indicate that at the conclusion of this case, when all matters have been dealt with, I have set arrangements in train to meet with the Local Authority's Head of Children's Services, and their Principal Legal Officer to consider the issues raised by this case, and by other cases which have concerned me with regard to this Local Authority over the past weeks and months.

End of judgment