England and Wales Family Court Decisions (other Judges)

IN THE EAST LONDON FAMILY COURT

		6th & 7th Floor, 11 Westferry Circus, LONDON E14 4HD
		14th January 2017

HER HONOUR JUDGE CAROL ATKINSON :

1. AK is a little girl of Lithuanian origin. She is just 5 ½ years of age. She has lived with her foster carer, Ms G, who she calls "Nanny", since February 2016. At the end of this Judgment I will make an order that she should continue to live with Ms G under a Special Guardianship Order (SGO).
2. Proceedings were issued in respect of AK in June 2016 when her mother, who is also Lithuanian, was in prison in Belgium. Her mother is now in this country. Her father is in prison in Lithuania and has taken no part in these proceedings though he is aware of them.
3. This is the adjourned final hearing in the London Borough of Newham's (the LA's) application for a care order in respect of AK. At the end of these proceedings the LA seeks my approval of its plan to leave AK in the care of her foster carer under the auspices of a SGO. That plan is approved by AK's Guardian and is not opposed by her mother. As I have already indicated I intend to approve that plan but I need to explain a little more fully why that is because the plan is not approved by AK's Independent Reviewing Officer (IRO), Mr S.
4. The IRO is not a party and has no locus in these proceedings. However, the role of IRO is important and in circumstances, as here, where the IRO feels as strongly as this one does about the welfare recommendation being made about a child, I cannot ignore that view. Added to which this IRO makes some comments about the SGO which I really need to deal with, not least because he questions her motivation and commitment to this child. Let me pause a moment to consider the role of the IRO.

The role of the IRO

5. Put shortly, the role of IRO was created following a series of Supreme court decisions – the last one in 2002 – in which it was recognised that children in care, with no adult to act on their behalf (especially after the loss of the G) may not have any effective means to initiate any challenge to decisions made regarding their welfare. A child in those circumstances needed a "critical friend".
6. The response to this concern is now to be found in s.25A(1) CA 1989 which provides that "if a LA are looking after a child, they must appoint an individual as the independent reviewing officer for that child's case"
7. Since the introduction of the role it has been refined. Most significantly, the Children and Young Persons Act 2008 (the 2008 Act) extended the IRO's responsibilities from monitoring the performance by the local authority of their functions in relation to a child's review to monitoring the performance by the local authority of their functions in relation to a child's case (see sections 25A-25C of the 1989 Act, inserted by section 10 of the 2008 Act).
8. The applicable regulations are The Care Planning, Placement and Case Review (England) Regulations 2010. Taken together, the Children Act 1989 (as amended by the 2008 Act) and the Regulations specify:

a. the duties of the local authority to appoint an IRO;

b. the circumstances in which the local authority must consult with the IRO;

c. the functions of the IRO both in relation to the reviewing and monitoring of each child's case; and

d. the actions that the IRO must take if the local authority is failing to comply with the Regulations or is in breach of its duties to the child in any material way, including making a referral to Cafcass.

9. The intention was that these changes would enable the IRO to have an effective independent oversight of the child's case and ensure that the child's interests are protected throughout the care planning process.
10. In practice - "The IRO's primary focus is to quality assure the care planning and review process for each child and to ensure that his/her current wishes and feelings are given full consideration." - see IRO Handbook which provides statutory guidance for IROs and LAs under the 2008 Act and in accordance with s.7 Local Authority Social Services Act 1970. As I have said – the IRO is the child's "critical friend".
11. Nothing I have to say in this Judgment should be taken as a criticism of the IRO role – whether here or generally. The IRO is crucial to the effective protection of the rights of looked after children. I rely upon IRO's to flag concerns regarding looked after children and the care planning for them – particularly after the case has left the court room. They are especially important in the effective review of contact post proceedings. It is essential that they should be consulted and their views sought as to changes in care plans. Let me return now to the facts of the case.

Essential background

12. Proceedings in this case were precipitated by the following events. On 08.02.2016 the mother left AK with a person referred to as "Rama" for 4 days saying she was travelling on family business. Just over 2 weeks later the mother had not returned. She made contact with AK's godmother (GM) asking her to take AK into her care explaining that the place where she left AK was unsuitable due to people using drugs. The mother told GM she was in prison in Belgium having been arrested on Human Trafficking charges.
13. GM contacted the local authority on 25.02.2016 advising that AK was in her care and again on 29.02.2016, this time advising she was no longer able to care for AK due to work commitments abroad. She had contacted various family members who were unable to help. AK was placed in foster care where she has remained as there were no family members to care for her and she had effectively been abandoned by her mother.
14. This was not the first time that the LA has had involvement with this family. AK was brought to the UK by her mother in September 2011. Mother insists that she was fleeing from domestic violence from AK's father.
15. In October 2012 the London Ambulance service was called to the home of the mother and AK. AK was extremely unwell and the ambulance service reported concerns that the mother had not attended to AK's significant health needs soon enough. AK has serious health problems to which I shall return. The home conditions were observed to be dirty and unhygienic. AK was diagnosed with epilepsy.
16. In August 2013 AK was found home alone aged 3. AK was placed in foster care under a s.20 agreement. During her time in foster care she was admitted to hospital with a bowel obstruction and diagnosed with Hirshprung's disease and malrotation (twisting) of the intestines or bowel. She spent a year in foster care before being returned to the care of her mother following a parenting assessment in 24^th November 2014. The recommendation for return was made on the basis that the mother was able to care for AK with her new partner, a Mr K, who would be the child's primary carer.
17. During 2015 the family moved around frequently and it is unclear as to when Mr K disappeared from the household, but he did. In February 2016 the mother left for Belgium and as I have already set out did not return.
18. The LA issued proceedings the second time around in April 2016. This delay was in part as a result of its inability to properly communicate with the mother in Belgium to find out what her plans were. The case was allocated to me because of the potential international issues and the possibility that an Article 15 BIIR transfer might be indicated. I made an ICO on 3^rd May 2016.
19. The mother was represented by Ms Garvey who has worked very hard to seek her instructions and maintain some form of contact whilst her client has been in a Belgian prison. In any event, the mother was convicted of offences of human trafficking in late May 2016, and following the completion of her sentence was deported from Brussels back to Lithuania on the 24^th August 2016. From Lithuania she returned to the UK on the 30the August 2016 requesting to see AK and for her to be rehabilitated to her care just at the point at which the proceedings were about to be listed for final hearing.
20. During the proceedings AK's father was located in a Lithuanian prison. For a moment a paternal uncle looked to be interested in having AK live with him. He did not progress his application, however. In the result there have been no members of the extended maternal or paternal family available to care for AK.
21. On her return the mother put herself forward but then acknowledged that this was unlikely to be a realistic option for the reasons that I will set out in due course.
22. The LA considered adoption. Then Ms G came forward seeking to be assessed for a SGO and was positively approved. Acknowledging the strength of relationship that had developed between AK and her foster carer, and in spite of concerns regarding her age and lack of cultural match the LA decided that this was the better outcome for AK.
23. Accordingly on 14^th November when the matter was listed before me for what was expected to be a final hearing all parties were in agreement as to the direction of travel, subject, of course, to my approval.
24. On that day the case had to be adjourned for two reasons:

a. The LA had failed to put together a SG package upon which the SG would have been able to take legal advice.

b. On the evening before the hearing, at 10.50pm the G received a "Level 3" alert from the IRO with a complaint that the plan for a SGO was one on which he had not been consulted and further that the plan itself was not something that he could support as being in AK's best interests.

25. I was concerned that the IRO might have had information that we did not because in his level 3 complaint he raised the suggestion that the SGO was less than committed to the child, and that the SGO assessment was of poor quality. Accordingly, I invited the IRO to file a statement setting out his position on the plan, made directions for the immediate filing of the SGO package, for the SG to receive proper legal advice and file a statement in response.
26. The Guidance anticipates that in circumstances in which an IRO has escalated a matter to local dispute resolution (Level 1 or 2) or to CAFCASS (Level 3) as here then the LA should make independent legal advice available for the IRO. The IRO here has attended the hearing and been seen by the duty solicitor to whom I am grateful. I have given him the opportunity through his representative to address me about his concerns. He has had the opportunity to read the Guardian's report but confirms that he stands by his views, including his comments regarding Ms G. I am told that he has nothing that he can add to the information already set out in his statement.

Threshold and welfare


27. I found the threshold crossed in this case at an earlier hearing and essentially on the basis of the facts outlined above. I need say no more about that. I turn then to welfare.
28. At this point the child's welfare is my paramount consideration. Any order I make must be in her best interests. I am guided in my assessment of her best interests by the welfare checklist to which I now turn in order to gather together the remainder of the evidence and deal with the concerns raised by the IRO.

AK – her age, gender, circumstances and her wishes and feelings

29. AK is a white Lithuanian child. Both her parents are Lithuanian. AK had regular contact with her father in Lithuania until January this year. The Guardian describes AK as "very friendly and keen to interact". She describes how when she visited, AK "showed me her toys and told me of her interest in Frozen the movie and she enjoys singing the songs from the movie." She noted that AK's vocabulary had improved significantly since the first time they met in April.
30. AK is currently in good health but it is worth remembering that she was diagnosed with Hirschsprung disease in December 2013 and had corrective surgery as a result. The Hirschsprung disease, which was untreated whilst in her mother's care, resulted in chronic constipation and epilepsy. AK has been free of epilepsy for the last year and her constipation is monitored. If she gets diarrhoea or becomes constipated she needs to be taken to A&E straight away because these are signs that there are issues with her chronic condition.
31. When AK was first placed in foster care, she displayed concerning behaviour at school. She was confrontational with other pupils and physically aggressive. The Guardian considers it possible that this behaviour was as a result of her not having attended nursery or reception and thus being behind her peers and delayed in her emotional and behavioural development. She may also have been missing her mother and confused about where she was and when she was likely to see her again.
32. AK has told the Guardian she likes living with her foster carer and that she wished to stay with Nanny "forever and ever". She was however clear that she wants to continue to see her mother for contact visits.

Needs

33. AK needs stability and security in her life and crucially permanence. She needs to know that the place that she is living and the person with whom she is living will be a constant in her life and committed to her throughout her life. Commitment then is a crucial factor in the case.
34. AK is of Lithuanian heritage and needs to continue to have access to that heritage by whatever means.
35. AK has quite considerable health needs. She has a chronic condition that can become acute and very serious if not carefully monitored.

Capability of her mother

36. The independent social work assessment in respect of the mother, completed in 2014, advised that the mother would "struggle to care for [AK] and sustain long term good enough parenting of [AK] as a primary/sole carer". This was because of the mother's lack of responsibility for and insight into the Local Authority's concerns and her attitude towards the manageability of AK's health needs. The assessment only supported AK remaining with her mother with the support of Mr K, her now estranged husband. The author said that with parent training the mother's parenting ability might improve and she might in time be able to take on a more active role in caring for AK in the future. We know that within a short time she did take on a sole caring role and within a relatively short time after that she had abandoned AK into the care of strangers whilst she embarked upon activities which resulted in her arrest.
37. The mother's behaviour subsequent to the return of her daughter to her care demonstrates very clearly that she has continued to be unable to prioritise the needs of her child. This is not limited to the threshold events. The mother told the Guardian that she could not understand the connection between her human trafficking charges and her care of AK. The Guardian considers that this demonstrates the mother's continuing lack of insight into the effect that the poor decisions she has made has had on her daughter. I agree. Whatever her views she does not actively challenge the plan for her daughter.

Capability of the foster carer

38. Ms G is a black British lady of Caribbean heritage. She is single, aged 60, I believe, has grown-up children of her own and has a good extended family support network. Ms G is an experienced foster carer who has been caring for AK since Feb. She has the skills to care for her long term and has demonstrated herself very capable in the monitoring and control of her chronic health problems.
39. Ms G is well aware of the necessity to ensure that she remains fit and healthy in order to care for AK long term and has been realistic in considering changes that she might have to make to care for her long term, including monitoring her own health. She understands the issue of diversity and the necessity to support AK in an understanding and knowledge of her Lithuanian heritage. In the opinion of the ISW, the allocated SW and the Guardian, she loves and is utterly committed to AK and shows a strong desire to provide a place of safety and security for her now and in the long term.
40. The IRO challenges the thoroughness of the assessment of Ms G and raises his own concerns regarding Ms G. He questions the commitment of the foster carer citing his concern that she offers herself as a carer not wanting AK to end up in an institution in Lithuania having had experience of losing some Hungarian foster children to an orphanage in Hungary. He also suggests that in those circumstances it was unfair of the Guardian to ask Ms G if she would be a permanent carer for AK and that she would almost certainly not have refused. Finally he questions why she has only ever sought to be a short term foster carer in the past. In my Judgment this is an unduly harsh assessment of this lady and has no basis in evidence.
41. I am quite satisfied that the assessment of Ms G was a thorough one. The ISW flags all of the concerns about age and ill matching ethnicity weighing them carefully in the balance against the positives to which the IRO seems blind. Ms G is a capable, sensitive and highly attuned carer who has proven herself extremely capable of meeting all of AKs needs including her health and emotional needs.
42. Having considered this matter carefully, including reading the evidence from the IRO and from Ms G in response, I consider that the IRO's assessment of Ms G's motivation and commitment could not be more wrong. He has no evidence that would support his questioning of this lady's commitment and nothing that suggests that the assessment of the ISW is wrong about her. The mere fact that Ms G has expressed a concern that AK might end up placed in a Lithuanian orphanage does not suggest that she is inappropriately motivated or somehow less committed to AK. In fact, she knows and has known for some time, that the option of return to care in Lithuania was not an option as the local authority was considering a UK adoption for AK. Nor do I consider there to be any evidence to suggest that she has felt pressurised into volunteering to care for her. In my view she is entirely and appropriately committed to this child because she loves her and wants to provide her with a permanent home.
43. Finally, the fact that she has not in the past applied to be a long term foster carer is likewise not evidence that she is not predisposed, willing or interested in caring for a child long term. In fact it lends support for her commitment to this child that it has not been until she had AK in her care that she has felt motivated to seek to care for a child long term.

Harm suffered

44. AK's life story to date has been of a child frequently left in the care of others. In 2012 she was left with her mother's boyfriend whilst her mother went to work and then when the boyfriend needed to be elsewhere she was simply left home alone. More recently she was left by her mother in a home in which she knew there was drug use having been told no doubt by her mother that she would return within days. Her mother never returned and she was passed to her GM who within weeks abandoned her to foster care. It is significant in my view that this child has a clear history of inconsistent care and a lack of commitment from a multitude of people. All, that is, except her current carer. That sense of being passed from pillar to post must remain with her.

Impact on her of any change in her circumstances

45. For the reasons already set out, a return to the care of the mother here would put AK at risk of further significant harm.
46. In my judgment a move from her foster carer will cause AK yet more disruption and confusion. If she was to be placed with alternative carers they will have to be prepared for her behaviour to deteriorate as she will almost certainly push the boundaries to see if these carers are likely to pass her on like everyone else has. She will come to an adoptive placement with a clear recollection and knowledge of her mother with whom she wishes to maintain contact. There is in my view an obvious risk of breakdown in any placement subsequent to this one for these reasons.
47. Leaving AK with her carer under an SGO will change the nature of the placement. He will cease to be a looked after child and will come to understand that she has been "claimed" by Ms G.

Discussion and analysis

48. There is only one realistic option put before me and that is for AK to remain in her current placement with her "Nanny" under a SGO. The ISW recommendation is that Ms G should be supported to apply for a SGO. She balanced this against the other options – including adoption – recognising that that a SGO with a lady of Ms G's age might not classically provide the level of permanence that adoption would. Still on balance she preferred the SGO option. That position is supported wholeheartedly by the Guardian.
49. Placement with her mother is not proposed by anyone but even if it was it would not be the right outcome for this little girl for the reasons that I set out under my assessment of the mother's capabilities as a carer.
50. I reject any suggestion that Ms G is not capable of providing care for AK or is unsuitable through a lack of commitment for the reasons I have already set out. I accept that her age means that when AK is a teenager Ms G will be quite elderly. However, I note that she has a good support network around her, is in relatively good health and appears to have thought through the need to keep healthy and make contingency plans for her care of AK in later years. I accept, however, that this means that the placement comes with some risks.
51. The IRO in this case considers that adoption is the only outcome that can provide AK with permanence. I do not have a placement application before me but in considering the arrangements urged upon me I am entitled, it seems to me, to consider how they measure up against adoption. If I considered the risks were too great for AK I would be entitled to refuse to make the order asked.
52. I recognise that without more, for a child even of AK's age, adoption can often offer the best chance of permanence. It would involve matching her with a family who would claim her as their own and who would give her a permanent, secure and stable setting from which she would be able to reach her potential. There is no guarantee that she would be matched with Lithuanian adopters although I appreciate that any adopters would probably be white. Given her history I consider that such a placement would not be without its own risks of breakdown for the reasons set out above but let me assume for a moment that the outcomes would be good. Does adoption offer so much more in terms of permanence as to persuade me, as the IRO has persuaded himself, that the SGO is positively not in her interests?
53. The answer to that is that I am not persuaded that only adoption can offer AK permanence. There is no doubt that the decision is finely balanced. I consider that the IRO has fallen into error in his assessment of the situation by not perhaps seeing the permanency offered in the SGO. As the Guardian has observed AK is already experiencing stability in her current placement – stability of the sort that can be offered in adoption. Special Guardianship can be a permanent option and what is offered here is permanence in the sense of long term care – care throughout minority.
54. This is not a long term fostering arrangement. Support for that it to be found in the realistic proposals made by Ms G as to the necessary reduction in the frequency of contact in order to support her as the primary carer
55. There are other positives for AK in this outcome as identified by the Guardian:

"The positive outcome of [AK] remaining in her current placement is that she will continue to have a direct link to her birth family, life story and heritage. [AK] will not have to make a further placement move and form attachments to new carers."

56. For all of those reasons I am quite satisfied that making a SGO to Ms G is the best outcome for AK and that it what I intend to do.

Contact

57. If AK is to remain in the care of her current carer, the local authority recommend that contact with her mother is reduced to four times per year. The Guardian supports this. Ms G suggests that 4-6 times a year is the appropriate level, expressing concern as to the mother's tendency to miss contact due to her work commitments.
58. The ISW suggested a frequency of every 4-6 weeks but in my view that level will be too much for AK to cope with emotionally. Contact at such a high frequency will also not allow AK to settle within her long term placement and could undermine the stability of the placement. Her stability will suffer further if the mother fails to attend contact and it seems to me that the higher the frequency the more likely that will be.
59. Contact of between 4-6 times per year in my view will allow AK to settle within her placement without any intruding anxiety about returning to her mother's care whilst still allowing her to maintain a relationship with her mother.
60. The Guardian points out that AK's father is currently in prison and it is unclear when he will be released. Should he seek contact with AK in the future, the G suggests that the local authority would need to assess his suitability for such. I agree with this. I am told that the LA will be involved in overseeing AK's contact with her mother for the first two years of the SGO, something else I welcome and endorse and comment therefore that should the father surface then assessing him should not be too difficult for the LA.
61. A copy of this Judgment must be kept on AK's file, given to Ms G and also the IRO.