England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: W (A CHILD)

		Coverdale House 13-15 East Parade Leeds LS1 2BH
		3rd May 2017

JUDGMENT

HIS HONOUR JUDGE BARTFIELD:

1. On 11^th April 2017, I indicated that I would allow the local authority's appeal against the decision of District Judge Prest QC, delivered on 14^th February 2017. On that occasion, he made a care order in respect of W, who was born [in] 2016, so by the time of that hearing she was aged around [X] months. There are two bases to the local authority's appeal, upon which I shall enlarge later: First of all, that the care order was disproportionate and unnecessary, other less intrusive orders should have been considered and, in respect of one of them, followed, namely a special guardianship order in favour of the maternal uncle and his partner. Secondly, that he gave insufficient reasons for his decision.
2. The application by the local authority is also supported by the local authority area in which the child lives, which is [in the South of England]. The current carers for the child, that is to say the maternal uncle and his partner, also support the appeal. The children's guardian's stance has been, on balance, to support the judgment. The first and second respondents to the application, the natural parents of W, have played no part in the proceedings at all.
3. Leave had originally been sought from Her Honour Judge Lynch. She refused leave on the basis that there were no arguable grounds for an appeal, but reserved the right to an oral hearing. That oral hearing took place before me and I proceeded to hear the appeal and determined it.
4. Therefore, I begin with the background. W's mother is A. She was, unhappily, unable to parent W. Her partner also was not in a position so to do. In previous proceedings, children had already been removed from her care. The mother and father of W both live in the Wakefield area. Shortly after her birth, having regard to that inability, W was made the subject of an interim care order.
5. A's brother is K1. He is in a committed relationship with his partner, K2. They live in [the South]. In late 2015/early 2016, they were assessed as foster parents for a teenage boy, L, now 14, who lives happily with them. Shortly after W's birth, they put themselves forward as full time carers for her. The local authority assessed them, as they wished to be so assessed, for consideration of a special guardianship order. There was a positive assessment by Emma Harvey, social worker, on behalf of the local authority in November of 2016 and W went to live with the Ks following this positive assessment on 29^th December 2016. There she remained up until the hearing before District Judge Prest QC.
6. In January, a further assessment was undertaken by Emma Harvey and I have been impressed by the level of care with which that assessment was conducted, as I had been with the previous one. It was in every respect a positive one, although at an early stage the Ks had shown some dissatisfaction with the need for this assessment at all. However, by the time W came to live with them, they had come to understand the need for it and, although initially reluctant, the need for contact with the birth parents. This had been proposed at three times per annum. It is right to observe that the birth parents, prior to W's move to [the South], had showed little or no interest in contact with her. The assessment in November of 2016 was somewhat guarded and concluded that the Ks, on balance, would be suitable to parent W, but only on balance. It was the further assessment in January where W had moved to the Ks' home that made the balance in favour of a special guardianship order in Emma Harvey's view more clear.
7. I turn next to the parties' positions at the hearing on 14^th February of 2017 and immediately before it. Wakefield local authority proposed that there should be a special guardianship order in favour of the Ks, with a supervision order to E County Council. E County Council supported their position, as did the Ks. The children's guardian at paragraph 7 of her position statement put the proposal succinctly and it was this:

"It is felt that an extension of eight weeks is proportionate and constructive in circumstances in which the final care plan is in sight. The end result is close, but we are not quite there."

Therefore, the parties moved to the hearing before District Judge Prest QC.

8. The parties elected to seek an indication of his view from him before the hearing. I do not have a transcript of what he said at that indication, but it is agreed that he told the parties that he would be minded to make a full care order. This I am told by the current advocates at the appeal came as something as a surprise to them. They all reiterated the stance adopted in their position statements, save that the children's guardian appeared to have somewhat shifted to a view that she supported the judge's indication. I remind myself that there is of course no obligation on the judge to follow any particular position, but to do what is right for the child.
9. Following that indication, the hearing proceeded in the form of a series of exchanges between the district judge and counsel. Each of the advocates had their say. This is a highly experienced district judge and it was apparent that he was addressing, as he went through the various stages with the advocates, the welfare checklist considerations. He finally delivered a short judgment, as was indeed entirely proper, in which he set out the decision that he had to make. What he said was this:

"The essential decision I am asked to make is to choose between:

(1) making a special guardianship order to the Ks with whom W has been living for, I am told, six weeks four days, coupled with a supervision order for six months, although originally the suggestion was twelve. This would leave parental responsibility shared between the birth parents and the Ks but with an enhanced parental responsibility given to the Ks, or

(2) making a care order, when parental responsibility would also continue to be held by the parents but instead shared with an enhanced parental responsibility of the local authority rather than the Ks with whom W would still continue to live (it is common ground that in the circumstances the local authority would be Wakefield)."

I note that, but he did not make any reference to that third proposal of an adjournment of, say, two months that had originally been suggested by the children's guardian and I suspect would not have been seriously resisted by the other parties.

10. He went on to conclude that, the best framework for W's future with the Ks would be a full care order. He made particular reference to the analysis of the children's guardian and the independent reviewing officer, Mark Duffy. Mr Duffy raised a number of issues as to the operation of a special guardianship order and his doubts about them, which were as follows. Firstly, W had only been placed by them for some six weeks so that the placement was not to be regarded as fully tested. As he put it and indeed the judge adopted these words, "it was just too soon." Secondly, the contact arrangements, which were apparently agreed, were not fully supported by either the Ks, who entertained doubt about them, or the parents, who were lukewarm about exercising it. That he thought could best be dealt with by a care order. That is to say Mr Duffy. Thirdly, the Ks' proposal to change W's surname to confirm with their own suggested a lack of understanding of the need for a gradual process.
11. The district judge felt that the local authority's position would amount to absolving them of a responsibility for the child, not least because of the practical difficulties of distance between Yorkshire and [the South]. The proposal to reduce the time of the supervision from twelve to six months was, he thought, an indication of this abnegation of responsibility. The ultimate outcome of the case, he thought, if things went well, would involve the making of a full care order with a view in six to 18 months' time, so he expressed, of consideration, then, if all turned out positive, to a move to a special guardianship order in favour of the Ks and so he imposed the order. The district judge refused the local authority's application for permission to appeal and so the appeal was brought.
12. I turn next to the grounds of appeal. They fall into five separate categories, although some of them overlap. The appellant local authority has to satisfy me that the decision was wrong. Nuances of language about whether it was wholly wrong, demonstrably wrong or anything of that kind strikes me as a poor expenditure of time. The question for me is whether I consider the decision was wrong and I have done, but the grounds are as follows. First of all, the district judge did not give sufficient consideration to the welfare checklist. Secondly, he failed to enunciate his reasons adequately. Thirdly, the order was disproportionate in terms of what it sought to achieve and in its consequences for placement with the Ks. If it was too early to make a decision about permanence, then an adjournment of two to three months should have been the way forward. Fourthly, concern as to contact could have been addressed by a specific order, supported if need be by a supervision order. Finally, the primary carers for the child, the Ks, with whom she would live, would have no parental rights, no security, such as would be likely to decrease their confidence and motivation, which at present had been excellent. The submissions were advanced with discretion and clarity by Mr Feehan QC and Mr Davies for the local authority.
13. Dealing with the first of those grounds, namely that he did not take into account the welfare checklist, it seems to me that, taken in the context of the various exchanges during argument with counsel, he plainly had in mind the welfare checklist. Second, I consider that he made plain his reasons for imposing the care order. The issue for me really relates to the final three points that are made and so I turn to those. First of all, the issue of disproportionality. This was not a case in which any significant ground for doubt was being put forward as to the abilities of the Ks to care for this little child. There had been some initial disagreements between the Ks and the social workers, but that strikes me as only natural and understandable. The imposition of the order would, of course, have resource implications for the local authority. If it is the right order, of course, that has to be faced.
14. The district judge though felt that it may be that, within six to 18 months, the position could be reviewed if all went well. A care order is intended to bring permanence to the child rather than any kind of holding position, as the district judge's view would envisage. It must be the case that he felt that an adjournment of the hearing insofar as he considered it of two to three months would be insufficient to resolve the matter. I disagree with him. On the information before him, the Ks had already had W for something in the region of six weeks. If he adjourned for a further two to three months, that would bring the position up to around the four month mark. I pause there to observe that from the time that W went to the Ks when she had just passed the three-month mark, the Ks would be entering probably one of the most difficult phases in this baby's life where she is coming to terms with the world. Sleep patterns, the beginnings of nourishment strike me as the most difficult period for carers to face and if the report at the end of that extended period was a positive one then it would strike me as an entirely safe basis, insofar as anything ever can be safe, to proceed with a special guardianship order.
15. The second issue as to the extent to which it is appropriate to seek to facilitate contact by means of a care order, I cannot see why a special guardianship order with a condition of contact, supported as it would be by a supervision order, would not achieve that goal. It struck me that the learned district judge was overly cautious about the local authority's failure to enforce it. On the other side of the coin, all that goes with a care order, including the reviews, the sharing of responsibility and so forth, strikes me as having an element of a sledgehammer to crack a nut. That is probably putting it too bluntly and it is certainly not intended to reduce in any way, shape or form the importance of contact, but I do think it is disproportionate. I also observe that, if the parents were unwilling to attend contact, there is an element here of seeking to drag a horse to water and I am not sure how much value that has.
16. Thirdly, by the time of the hearing, there had been, taking together the two assessments, a very full review of where the Ks were and it was entirely positive. The Ks, it was plain, would be dismayed by a care order as they would see it demonstrating a lack of confidence in their ability or commitment. It would of course require consultation over any significant decision in W's life. It would leave the spectre of one or more of the parents suddenly deciding to have a change of heart and seeking a further assessment to which they would be entitled. I do not think, with great respect to him, the learned district judge gave sufficient weight to these considerations.
17. I wholly admire the district judge's decision to stand out from the crowd in making his own order for the future of this child but, in the end, I disagree in this case with the need for it. In my judgment, he should have adjourned the case for a further two to three months for what would be a final assessment of the Ks. Therefore, I allow the appeal and overturn the care order.
18. However, had the judge taken the route that I have decided should have been taken then he would have reached the position that I am in today, which is that there would have been a further assessment with a reconsideration of the case at the beginning of May 2017. Therefore, I propose to substitute my own order.
[Judgment ends]