England and Wales Family Court Decisions (other Judges)

i)                    Give a clear example of the enormity of the task that now befalls that team.

ii)                  Signal how important it is that the new leadership team is offered every support and assistance in putting right the things that have been going wrong before its time. I have met with the new leadership team and intend to continue to do so in order to offer any assistance I can. I do hope that others will also support the interim team as much as they can.

iii)                Demonstrate the local need for a better understanding of what should and should not be done where there is a care plan for a child to be placed with a parent under a care order. I have offered my help with achieving this better understanding by attending lectures, conferences and other workshop events when I can.

i)                    The care order was made by the court, having considered the evidence and the representations of the parties. The court considered that the care order was appropriate on the basis of the care plan. Once the order was made by the court it was the duty of the Local Authority to put it into effect. If it doubted the legality of its own actions the solution lay in either: a) remedying its own illegality by taking the steps required by the regulations or b) returning the case to the court. The remedy did not lie in removing the child in contravention of its own care plan and without proper notice to the parents.

ii)                  On making the care order, the court had the benefit of a report from the child’s guardian as well as a large amount of other evidence, including the evidence of an experienced psychologist. The Local Authority had been involved with this family for a long time, knew it well and had carried out extensive parenting and other assessments – they are detailed in the court bundle at C10. The mother and child underwent a long period of observation in a mother and child foster placement. The Local Authority would never have promoted the care plan that was made if it had not carried out sufficient assessment to do so.

iii)                All relevant parties were represented upon the making of the original care order. They each supported the making of the order. Thus the Local Authority itself sought the order that was made on the basis of its own care plan.

i)               ‘The independent reviewing officer now takes the view that [the child] should not have been removed from the mother’s care. That decision was taken because the Local Authority was relying on the concerns collated by the previous social worker. These have now been reviewed and the Local Authority is of the opinion that some of the views expressed by the previous social worker were biased and the single assessment that she undertook was inaccurate. In particular, the health visitor has raised concerns that she was misrepresented within that assessment. The independent reviewing officer has scrutinised the revised care plan and the schedule of expectations for both parents and is now of the view that the child should be returned to the mother’s care [immediately] with the support package agreed. She also endorses the father’s contact being supervised for the time being….

ii)             The project manager had raised concerns with her department from the moment that [the child] had been removed from the mother’s care. She had been present in the building at the time. Her view was that this was a knee-jerk response and that the department’s concerns for the child in the mother’s care could have been addressed within the mother’s home. She raised the matter with the independent reviewing officer and escalated her concerns to the director of Children’s Services. In particular, the project manager criticised the department’s lack of support around the mother’s transition to the community and the negativity towards the mother that the social worker at that time displayed. The project manager’s argument was that the mother deserved a fair opportunity to parent the child with the right support in place….

iii)           The guardian is deeply saddened by the behaviour of this Local Authority towards the child and towards this vulnerable young mother. Unnecessarily separating this child from the mother will have caused the child emotional and psychological harm and will have disrupted what appears to have been a secure attachment to the primary carer. Moreover no thought was given to the fact that the child was still being breast-fed when removed from the mother’s care, potentially causing the child physical harm. It is the guardian’s view that the Local Authority breached the child’s human rights (Article 8; right to respect for private and family life).

i)                    The author, a social worker, purports to comment on the quality of a psychological report that was prepared for the care proceedings and to compare, in a negative way, that report with a much earlier report by another psychologist [C27].

ii)                  The author went so far as to say that the evidence before the court at the time of the making of the care order suggested that the mother could not work with the Local Authority ‘and [meaning or] other professionals’ and prioritised her own needs [C27]. Manifestly that was not the view of the social work team at the time of the order and, if C27 had been right, the care plan would have been very different. At C7 of the court bundle there is a statement from the social worker involved at the time of the care order which states that the mother co-operated with parenting assessments, had demonstrated a positive improvement in her parenting, had worked closely with the health visitor to address parenting needs and demonstrated a good understanding of the child’s needs. C7 is entirely inconsistent with C27.

iii)                The chronology of events that follows in the assessment at C28-32 certainly is expressed in terms that appear to be strongly negative.

iv)                The analysis section of the assessment at C37-39 contains the passage that suggests that the approval under the 2010 Regulations would never have been given if it had been sought. It once again refers to the 2013 psychological report and ‘concurs’ with it in preference to the report of the other psychologist who reported in 2016 [C37]. Again it is expressed in strongly negative terms.

i)                    It was plainly wrong to act with that degree of subterfuge and immediacy.

ii)                  As the guardian says, the fact that the mother was still breast feeding the child appears not to have been taken into account to any adequate degree.

iii)                Nowhere have I seen any consideration of any arrangements being considered that might have kept the mother and child together if further assessment was to take place – for instance a return to a mother and baby foster placement.

a)       To avoid the problems that have arisen in this case, the following measures should be taken in future cases.

(1)   In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2)   Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process

(3)   In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4)   When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5)   On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6)   On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home.

b)      The guidance set out in the preceding paragraph has been seen and approved by the President of the Family Division.

c)       Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

i)                    If a Local Authority acts in breach of the guidance in Re DE, it acts in breach of case law and Convention rights (i.e. Articles 6 and 8 of the European Convention on Human Rights).

ii)                  If the Local Authority has any doubt about whether it has acted or is about to act in breach of those legal provisions it could make an application to the court for the court’s direction.

iii)                Part 18 of The Family Procedure Rules 2010 provides the procedure by which this could be done. I accept that Part 19 is unlikely to be applicable since that relates to cases where the court’s decision ‘is unlikely to involve a substantial dispute of fact’.  Part 18 applies where an application is made ‘a) in the course of existing proceedings; b) to start proceedings except where some other Part of these rules prescribes the procedure to start proceedings; or c) in connection with proceedings which have been concluded’.

‘The email from the Local Authority’s legal department, in the context of making clear the Local Authority’s position that there will be no further assessment of the parents, made the same points: ‘No further assessments will be conducted…there had also been an escalation of concerns by the IRO around the same time which was not resolved until the end of May. The IRO had the same concerns on multiple occasions due to the parents’ behaviour’’.

HHJ Stephen Wildblood QC

27^th July 2017