England and Wales Family Court Decisions (other Judges)

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IN THE FAMILY COURT

(Sitting at Newcastle upon Tyne)

 

 

No. NE251/17

 

The Law Courts, Quayside

Newcastle upon Tyne, NE1 3LA

 

Tuesday, 21^st November 2017

 

 

Before:

 

RECORDER HENLEY

(In private)

 

 

B E T W E E N:

 

 

LA

Applicant

 

-  and -

 

   M

   F

   H

Respondents

 

 

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MR CAHILL Counsel, appeared on behalf of the Applicant Local Authority.

 

MISS HODGE Solicitor, appeared on behalf of the First Respondent Father.

 

MISS USHER Solicitor, appeared on behalf of the Second Respondent Mother.

 

MR ROWLANDS Counsel, appeared on behalf of the Child, through her Children’s Guardian Aileen Firth.

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J U D G M E N T

RECORDER HENLEY:

1                    This is an application for a placement order brought by the Applicant LA.  The court is concerned with H, born [a date in] 2016, now aged 14 months old.  The mother is M, born [a date in] 1981, aged 36 years.  The mother suffers from a learning disability.  The mother has an older child, J, who has been placed for adoption following an earlier set of care proceedings.  The father is F, born [a date in] 1968.  He is 48 years old.

 

2                    On Monday 4 September this year, I made a care order in respect of H approving a care plan providing for her to be adopted.  No placement order application had at that stage been made.  The care proceedings were issued on [a date in] 2016, when H was just three days old, and took almost a year to reach a conclusion.  In those circumstances and in circumstances in which the care proceedings had been listed for five days that week and resolved on the first day, the local authority agreed to prepare its placement order application during that week and lodged the same by 12 noon on Thursday 7 September 2017.  The children’s guardian agreed to produce her report by 9am on Friday 8 September 2017, allowing me to list the matter at 2pm on the Friday with the intention of concluding the case that day.  Unfortunately, that timetable was not adhered to, but the local authority did issue a placement order application during the course of the Friday and I heard the case at 2pm that afternoon on notice to all parties and with attendance from all legal representatives, the guardian and the local authority’s key social worker.  The parents failed to attend that hearing, but I was assured by their legal representatives that they were aware of it and had opted not to attend.

 

3                    The placement order application at that stage was entirely contradictory, informing me that the agency decision maker’s approval had not been given for the application to be made and that, although the local authority sought a placement order, it would continue to make enquiries of the birth family to see whether an alternative kinship placement could be found.  I expressed my dismay at that stage that the local authority’s application was phrased in that way, pointing out that the conditions of s.22 of the Adoption and Children Act 2002 were not met until the agency decision maker had made a decision that he or she was satisfied that the child ought to be placed for adoption pursuant to Regulation 19 of the Adoption Agency Regulations 2005.  I was being informed in the placement order documentation and such a decision had not been reached for the following reasons: firstly, that further enquiries were to be sought of the father’s sister, PA, and whether she could care for H, the father having suggested in the week of the final hearing for the first time, following the making of a care order, that she may be able to care for H with her partner.

 

4                    It is said that the father then informed the local authority that PA had declined to care for H but that he had refused to reveal PA’s contact details so that should be asked directly.

 

5                    Prior to H’s older sibling, J, being adopted, he was initially cared for by a maternal aunt, MA, in the Milton Keynes area, who was appointed as a special guardian for him.  The second issue the agency decision maker raised was whether or not enquiries have been made of MA to see whether she could be, firstly, traced and, secondly, assessed as a carer.

 

6                    The third issue that the agency decision maker raised was that he was not content to approve the plan on the basis that H’s health information was not up to date.

 

7                    The documentation filed in support of the application indicated that the agency decision maker required a further ten working days to satisfy himself of these enquiries.  I expressed my dismay that, if the local authority considered that there were any possible, viable family placements for H, they should have been fully explored within the 12 months that the care proceedings were ongoing or indeed during the time that they were involved with this family pre-proceedings, when H was an unborn child.  Had there been a family placement, they had not made the court aware of that during the care proceedings, either with a view to an interim or a long-term family placement being found.

 

8                    The local authority’s written application invited me to grant a placement order, but also indicated that the local authority would continue to attempt to find alternative family carers and, should positive assessments be carried out in respect of other family members, then it would apply at a later stage to revoke the placement order.  I declined to accept the local authority’s invitation to make a placement order at that stage, expressing my concern that, in circumstances in which I had already made findings that the parents were dishonest, I could not be satisfied that the father’s sister was even aware of H or that the mother’s sister was either.  I enquired when the local authority had first made enquiries of the parents in respect of alternative carers and was told that the current social worker had asked the father for the first time on Monday 4 September 2017 after the care order had been made.  I accept that, during care proceedings, the parents’ response documents had been filed to address this issue and that these parents had not put forward any alternative family members in their response documents, but I was extremely concerned to hear that H’s social worker had not made these enquiries for himself until after the care plan had changed to adoption which, it seemed to me, was entirely at odds with the need to twin track assessments and to present the court with a range of all the realistic options.

 

9                    The linear approach taken by the local authority was extremely worrying and not at all in accordance with good practice.  I expressed my concern that the litigation approach of the local authority was also not an appropriate one because, if viability assessments were negative and the local authority then decided not to apply to revoke the placement order, those family members who may have wished to challenge their assessments would be faced with a very much more complicated legal landscape, as indeed would the child, if by then she were to have been placed for adoption.  I expressed my view that this approach struck me as immensely unfair on the family, on any prospective adopters and, most importantly, on the child.

 

10                Given that the final, goodbye contact session was not planned to take place until 26 September 2017 and that I could deal with this matter again on 6 October 2017, I was left with no choice but to reluctantly adjourn the application, directing an update from the local authority to indicate whether the agency decision maker had given approval and whether the application was being pursued or whether it was to be withdrawn, together with any consequential directions providing for responses from the parents and a report from the children’s guardian.

 

11                When the matter came before me on 6 October 2017, I had already been informed by those acting for H that the maternal aunt, MA, has indicated that she did not wish to be assessed to care for H, but that the local authority had nevertheless completed a negative viability assessment of her.  I was however informed that the local authority completed a positive viability assessment of the paternal aunt and so it was not pursuing its application for a placement order on that day.  It requested a period of 12 weeks to complete a full assessment of that family member.

 

12                The guardian contended that the full assessment should be completed by the independent social worker, who was already very familiar with the case, having already assessed the parents in the care proceedings.  I was informed that she could complete the assessment within three weeks.  I indicated that, given the enormous delays in this case to date, I considered that her timescales were far more acceptable than those proposed by the local authority.  The guardian expressed serious reservations about the quality of any local authority assessment, given the history of the case, arguing that an independent social worker’s assessment was necessary.  I shared the guardian’s reservations and refused to permit the local authority to carry out this piece of work, indicating that I was of the view that an independent social worker was necessary, due to my lack of confidence that the local authority would be able to produce an assessment of the quality required.  Mrs Deborah Gaskin was already familiar with the case and therefore I decided that she should be instructed again.

 

13                I indicated that the local authority should fund this instruction in its entirety, since the reason why this assessment was required was due to the failings of the local authority.  Having given this indication, I was informed, without any telephone calls being made, that the local authority could in fact do the work within three weeks.  This did not alter my decision, but I expressed my dismay that, if the local authority had indeed been able to complete this work as quickly as that, the local authority should not have requested a three-month timescale to produce this piece of work.  I directed a statement to be provided from the director of children’s services to explain the lack of twin tracking in this case and to address the failings that I had highlighted within my judgment in the care proceedings.

 

14                I received a copy of the statement of the director of children’s services dated 16 October 2017, which accepts that this case was not twin tracked, in her words, “as robustly as it should have been”, but no apology was offered to the parties, the court or, most importantly, the child, for the delay caused.  The Independent Social Worker’s report in respect of the paternal aunt is dated 26 October 2017.  Mrs Gaskin completed this assessment as, notwithstanding the fact that the local authority had been informed by the paternal aunt that she was withdrawing her offer to care for H, it had failed to inform Mrs Gaskin of that decision prior to her travelling up to Inverness to complete her assessment.  She went on to complete her report in order to inform the court of the continuing difficulties in the local authority’s approach to this case.  Within her report, she sets out the difficulties she experienced in contacting the local authority, the significant safeguarding information that she uncovered about the prospective carers, by making enquiries with the relevant local authority which this local authority had not adequately explored or analysed as part of its viability assessment, and the lack of cooperation that she encountered from this local authority.  Within her report, she highlights the following troubling information:

 

“The parties were aware of my plans to travel to Forres, near Inverness, on 17 October 2017, where I would be spending four days intensively working with PA and her family in relation to H.  In the lead up to this visit, there was an unhelpful position temporarily adopted by the local authority whereupon they suggested that, in keeping with the special guardianship report and the court having decided to instruct myself, I would be responsible for obtaining all relevant checks, including DBS and medical assessments, probation and further police disclosure.  Clearly, as an independent social worker, these were not within my gift to obtain.  Quite rightly, there is no mechanism by which I could obtain the same.  Where I have undertaken such work previously, the local authority has obtained the same and they have been reviewed during my assessment and commented upon.

 

The local authority later agreed that they would undertake the same.  At the point of my travel to Forres on 17 October 2017, the detail of my instruction had still not been resolved.  The solicitor for the child has the exchange of emails if they are required by the court”. 

 

15                I was also deeply troubled to read the following in her report:

“It concerned me enormously that there appears to be a pattern of disregard for the making of adequate enquiries and exploration of issues in relation to H by the Applicant L.A., and this has continued despite the Judgement of Recorder Henley. It would appear that there has been an over optimism again in relation to the likely success of placement with the Paternal Aunt and Partner.”

16                I have the benefit of Mrs Firth’s report in this application dated 15 November 2017.  In that report, she makes the following observation:

 

“The local authority’s viability assessment does not reflect the safeguarding information they received from [the relevant local authority] and they did not follow up this information with [the relevant local authority] social workers.  These safeguarding information checks should have been undertaken at the commencement of their enquiries to inform the viability assessment.  I was not aware of this information until I read Mrs Gaskin’s report.  I am of the view that this caused further delay for H”.

 

17                During this hearing, I have heard from counsel for the local authority and on behalf of the child and from solicitors on behalf of each of the parents.  I have read the bundle of documents filed.  In terms of the background, I gave a full judgment on Monday 4 September 2017 in respect of this matter and therefore do not intend to repeat the background.  Suffice to say that I have very serious concerns about the delay in this case brought about by the deficiencies in the local authority’s assessment of the parents and its blinkered approach to seeking to rehabilitate H to their care, notwithstanding a failure to carry out full safeguarding and background checks in respect of the father and notwithstanding an increasingly worrying picture emerging via piecemeal disclosure from the police, from other children’s services departments and from probation about him.

 

18                The local authority changed its care plan to adoption a week before the final hearing, a plan which was unreservedly supported by H’s guardian.  The parents failed to attend the final hearing, the mother having filed a statement indicating that she did not seek to actively oppose a plan of adoption.  The parents were legally represented and have been throughout both applications.  I was assured by their solicitors that the parents knew about the final hearing and the care proceedings and that they had been informed that they must attend the hearing if they wished to contest the local authority’s care plan.

 

19                I proceeded to make a care order in the absence of the parents without any opposition from their legal representatives in those circumstances.  H remains in foster care.  The care plan I approved provided for her to have three sessions of supervised contact with her parents in the week of the final hearing, two sessions in the next week, one the week after and then a goodbye contact in the following week.  This planned reduction in contact has now taken place and H had her final goodbye contact with her parents on 26 September 2017.  H’s half-brother, J, is placed for adoption.  His adopters have indicated a willingness to adopt H alongside J.  They are currently undergoing an assessment to determine whether they are suitable to adopt H.  Should that assessment be positive, a matching panel is scheduled to take place on 8 January 2018.

 

20                In terms of the positions of the parties, the local authority seeks a placement order in respect of H which would allow it to place her with prospective adopters matched as suitable to care for her.  Neither of the parents has attended today’s hearing.  Each again is represented today.  The parents do not consent to this application, but do not actively oppose it.  I am satisfied that they are aware of today’s hearing and have given up to date instructions to their legal representatives.  They have actively chosen not to attend.

 

21                The parents accept that a placement with J is, in the circumstances, the best outcome for H.  The mother expresses concerns that J’s adopters have not provided post box, indirect contact since he was initially placed.  J has been with those adopters for three or four years now and therefore, if right, that is clearly not acceptable in the circumstances.  The children’s guardian supports the making of a placement order in respect of H.

 

Legal framework

 

22                When considering whether to make a placement order, it is trite law that I must be satisfied that any orders I make are lawful, necessary and proportionate and a reasonable response to H’s predicament.  The granting of a placement order represents the most drastic curtailment of the rights of these parents and of the child under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, which can only be justified by pressing concerns for her welfare.  However, in construing both the Convention and domestic law, I have the assistance of the decision of the Supreme Court in Re B [2013] UKSC 33 followed by the decisions of the Court of Appeal in Re P [2013] EWCA 963 and Re G [2013] EWCA 965.  Those cases firmly re-emphasise that a placement for adoption is a very extreme thing and a last resort to be approved only when nothing else will do.  Both domestic and Convention law do require a high degree of justification before adoption can be endorsed as necessary, the term in the Convention, or required, the term in the Adoption and Children Act.

 

23                I must apply the welfare checklist found in s.1(4) of the Adoption and Children Act 2002 and I must be satisfied that the making of a placement order accords with H’s welfare throughout her life.  If I conclude that H’s welfare throughout her life demands that such an order is made, then the law requires me to dispense with the consent of the parents to the making of a placement order in circumstances in which they oppose the application.

 

24                I concluded on 4 September 2017 that, in light of the revised position of the parents and the information provided to me from the case papers, there was only one realistic placement option for H, namely adoption.  I remain satisfied that, based upon the unchallenged evidence filed in this matter and upon the up-to-date assessment completed by Mrs Gaskin, that it is necessary and proportionate in all the circumstances that H is placed permanently outside of her parents’ care.  I am satisfied that there are no other realistic kinship placement options available to her.  I am satisfied that H cannot be safely returned to the care of her parents and that nothing else will do for her but adoption in light of her age.

 

25                Adoption will give H the legal security that she needs and will allow her to live her life free from the intrusion that the ongoing statutory involvement required under a care order would provide.  It will give her the opportunity to be permanently claimed by a new family for the rest of her life.  I agree with and adopt the analysis of the children’s guardian in this regard.

 

26                I am anxious that, in light of H’s age, she be placed for adoption without delay.  In considering whether to make a placement order, I must consider not only what is in H’s best interests during her minority but what is in her best interests throughout her life.  Having already concluded that nothing but adoption will do for her, a placement order is an order which provides the local authority with the legal permission required to put the care plan that I have already approved into effect.  I am clear that it is in H’s best interests throughout her life to be adopted and thereby claimed, not only throughout her childhood, but also into adulthood.  There is a pressing need for H’s care plan to be implemented without delay.  She is already 14 months old and she is ready to be adopted.

 

27                I have come to the firm conclusion that the only plan which meets H’s needs is one of adoption and that that care plan needs to be implemented now.  Consequently, I have no hesitation in concluding that H’s welfare requires me to dispense with her parents’ consent and I make a placement order in respect of her.  I very much hope that it will be possible for H to be adopted by the adoptive parents of her brother, J, which would allow her to be raised with a natural sibling.  I encourage the local authority to sensitively raise the issue of indirect contact with the adopters and encourage them to promote indirect contact between J and his birth mother.  I encourage LA to raise this as part of their assessment.  I agree with Mr Rowlands that it remains part of their responsibility, when taking on a child for adoption, that they continue to promote indirect contact to the birth parents.  That is the position already for J and will be the position in respect of H if they are successfully approved and matched to care for her.

 

28                I remain as troubled now as I was in the care proceedings about the approach of the local authority in this matter.  The welfare of the child appears to have been lost in this case with a stance being adopted in which the local authority has continued to fail to carry out proper assessments, failed to undertake proper safeguarding checks and, most worryingly within this application, behaved in an obstructive manner as far as the independent social worker was concerned.  This is a worrying example of a local authority failing to work collaboratively with other agencies and professionals to safeguard a child.  Yet more unnecessary delay has been caused to H within this application, notwithstanding the judgment that I gave in the care proceedings.  Lessons still have not been learnt.

 

29                I remain indebted to Mrs Gaskin and to the children’s guardian, Aileen Firth, in this matter for their diligent and thorough work, without which the court may well have been persuaded by this local authority to make decisions that were unsafe for this child.  I direct that a copy of Mrs Gaskin’s report, Mrs Firth’s report and an expedited transcript of this judgment be sent to the director of Children’s Services and that she file a response to the criticisms made within the next 14 days.  That is, 14 days after they are delivered to her.

 

30                That completes the judgment.

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