England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
Sitting at Oxford

		Heard on: 3 November 2022

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives.

Introduction

1. C is fifteen years old.
2. C lived with his mum until he was two years old, when, following concerns that he had been hurt by his mum's partner, he moved to live with his dad. He returned to live with his mum in December 2018, when he was eleven. C was reported to be showing aggressive behaviours at his dad's house, and was expressing a wish to go back to his mum's.
3. His mum struggled to manage the levels of violence and aggression shown by C towards members of his family, and after a year and four months, it was agreed that C should be cared for by the local authority.
4. He moved to [placement A] on 20 April 2020. C's mum gave her consent to the local authority to accommodate C, under section 20 of the Children Act 1989.
5. It is not C's fault that both his mum and dad struggled to cope. He has complex emotional and behavioural needs, for which he needs a lot of support. C can become overwhelmed, and in the past has used self-harm to cope with difficult emotions. He has had feelings of wanting to end his life. Other times, C can struggle to manage his emotions, and as at home, at [placement name redacted] he was at times aggressive and violent towards other young people in the placement, and to staff. He could act impulsively and would sometimes go missing from the placement.
6. After a year, the placement at [placement A] came to an end, as they no longer felt able to keep C safe. C then experienced three more placement moves in under a year, as follows:

a. 1 April 2021 – 23 April 2021: Temporary holiday accommodation.

b. 23 April 2021 – 23 September 2021: [placement B].

c. 23 September 2021 – 1 February 2022: [placement C].

7. In September 2021 after [placement B] had given notice, there was confusion and uncertainty about where C was going to be placed. C's mother was understandably frustrated that plans were delayed, and was very concerned for C's well-being. She says she was receiving messages from C, with graphic details about plans he had to end his life. [C's mother] withdrew her section 20 consent to the local authority accommodating C at all, and said that she would collect him that evening. In her witness statement, [C's mother] describes this as 'a moment of desperation', arising from her deep concern for C, and feelings that no one had put anything in place to ensure C's safety. In the event, she did not collect C and he moved to [placement C].
8. The care proceedings were issued in November 2021. At that time, C's relationship with his mum was described as, 'complex and challenging for C and can be the trigger for C's negative behaviours and also impacts his mood and self-harming behaviours.' C was reported to be clear that he did not want to return to live with either of his parents, resented the control he felt his mother was having over his life, and wanted a care order to be made. In her initial evidence to the Court, C's social worker said, 'C wants to remain in the care of the Local authority but resents the legal structure and his perception of what power it provides his mother especially'.
9. Because C never settled fully in any of these placements, little progress was made in identifying the kind of therapeutic support that C and his family might need to improve his situation. His very distressed behaviours continued. His carers and his parents continued to be extremely concerned for him. The longer the proceedings went on, and the more uncertainty there was, the worse the effect on his mental health.
10. The placement at [placement C] came to an end after four months, they too felt they could not keep C safe. Unfortunately this placement ended very abruptly. C had no idea where he was going to be placed next. Many of his possessions were left behind at [placement C] including his pet hamster, laptop, and bike. Despite repeated requests, it took many months for them to be returned.
11. In February 2022 the local authority moved C to Airbnb accommodation in the community, supported by agency staff. In order to keep C safe from harming himself, significant restrictions were put in place. He was supervised by adults at all times and was not able to go out on his own. Use of his phone and access to cash was monitored and sometimes restricted. The local authority applied to the Court (as it had in April 2021) for orders which authorised the staff caring for C to interfere with C's human right to liberty in these ways, if they considered it necessary to safeguard his welfare.
12. C told me that although there were adults with him at all times, they were not taking care of him. Aged fourteen, he had to buy and prepare all his own meals while staff watched. He was not seeing other children his own age. Plans were made for C to do online school, but it was hard for him to do this in isolation, without support from a teacher sitting beside him to get the laptop set up (once it was returned to him) or to help with the lessons. All the time, he was expecting news of a move to another placement. It is a lot for anyone to cope with and he showed great strength of character during this time.
13. The local authority worked tirelessly to find a regulated placement which would meet C's needs. C's social worker could not have worked any harder. Over the course of seven long months, the parties came back to Court very regularly, to review the deprivation of liberty restrictions in place, and receive updates in respect of placements. Each time a placement had not been found. C's social worker and team manager came to every hearing. I directed the local authority's head of service to attend one hearing for the purposes of a discussion about whether the referral system was working appropriately, whether consideration should be given to a bespoke long-term placement being set up for C, or whether any other options could possibly be explored. Senior managers at the local authority held weekly meetings to review C's situation. The local authority recruited a specialist placement consultant, whose full-time job was to focus only on finding placements for C and the small number of other young people in its care who found themselves in similar situations, living in unregulated placements subject to significant infringements of their liberties, not in regular education, not seeing other young people, and awaiting news of a placement move.
14. I do not think that the local authority could have worked any harder to improve the situation for C. However, that cannot bring much comfort to C, who remained in the Airbnb for just under eight months. C is a vulnerable young person who needed and deserved to receive much better care. As well as the difficulties of day-to-day life in the placement itself, the uncertainty about where he was going to live caused very significant additional worries for C.
15. C did continue to see his mum and (less often) his dad and paternal grandmother. They have offered invaluable love and support to him at an incredibly difficult time. C's mum met up with him regularly for walks, he went home to spend time with her and his three younger brothers, she took him for trips out including to see a show at the theatre. His relationship with his mum has improved a great deal compared to how things were when he first went into care. C has also enjoyed the visits he has made to see his dad and paternal grandmother.
16. C's mum has been a powerful advocate for him. She has built a good working relationship with professionals, and there has been good communication between C, her and the local authority. She has raised a number of concerns about his care and the plans for him, and tested the need and extent for measures that deprived C of his liberty. Often her interventions have led to the local authority making changes that have improved things for C. Despite her worries about C's situation, she has not sought to undermine the placement at any time.
17. Finally the wait was over, and on 22 September 2022 C moved to [Placement D]. He has been there just over six weeks and told me he is happy there.

Questions for the Court to decide

18. It is intended that [placement D] will be C's long-term placement. All the parties in the case are agreed that the proceedings should now come to an end, with a plan that C remains looked after by the local authority at [placement D]. The plan is that he will continue to see his mum once a week and his dad every other week, supported by his paternal grandmother.
19. The only issue for me to decide is whether this placement should be secured by a care order to the local authority, or whether we should effectively return to the situation pre-proceedings of C being accommodated by the local authority with the consent of his parents given under section 20 of the Children Act 1989.
20. This issue has been live throughout the proceedings. C's mother has always maintained that there is no need for a care order. She says that she will give her section 20 consent, and it is against C's welfare interests for the local authority to share parental responsibility with her.
21. It has now also become very important to C. He accepts that he should live at [placement D], but he feels in the strongest terms that he does not want a care order. He wants his mum and dad to be the only ones with parental responsibility for him.
22. C's dad has said that he supports C in his wishes.
23. C's guardian initially supported the making of a care order, but more recently has been persuaded that the Court should make no order, and C should be accommodated pursuant to section 20.
24. The local authority seeks a care order.
25. I am grateful to all legal representatives for their clear and helpful analysis of the facts and law, and the arguments for and against the two positions set out in written and oral submissions to the Court at an IRH, at which C was also present. As I had a number of other cases to deal with on that day, and I wanted to set out my decision in writing for C, I reserved judgment.

The Court's power to make a care order

26. I have got power to make a care order if that is what I consider is required to meet C's welfare needs. That is because the test set out at section 31 of the Children Act 1989 has been passed. At the time that the local authority first took steps to protect C (so back in April 2020 when he moved to [placement A]), C was beyond parental control, and as a result had suffered or was at risk of suffering significant harm.
27. The agreed threshold findings are set out as an Annex to this judgment.

What are the main differences between a care order or being accommodated under section 20?

28. A parent who has given consent for their child to be accommodated under section 20 of the Children Act 1989 agrees to the local authority providing a home for their child, but the local authority does not assume parental responsibility for that child.
29. A parent with parental responsibility (both parents in C's case) can object at any time to their child remaining accommodated by the local authority, provided they are willing and able either to provide accommodation for him themselves, or arrange for accommodation to be provided by someone else. Once an objection is made, the local authority cannot stop the parent removing the child from its care.
30. Under a care order, the local authority becomes the child's 'corporate parent', sharing its parental responsibility with the child's parents. The care order only comes to an end by the child attaining the age of eighteen or the Court granting an order for discharge.
31. The local authority has some basic duties and responsibilities towards children in their care, whether they are placed with them under section 20 or under a care order. In either case, as under the current interim care order, C has an Independent Reviewing Officer (IRO) who makes sure that the local authority's care plan is reviewed regularly and properly implemented. There are regular review meetings at which C's parents are invited to attend. There are general duties upon the local authority to share information, consult about important decisions, and to ensure that a child in their care has contact with their parents and other important members of the family.
32. There are some differences about decision making.
33. Under section 20, the parents are the only ones with parental responsibility. They would make the significant decisions for C.
34. However, the local authority would not have to refer every decision to them. Section 3(5) of the Children Act 1989 provides that a person who has care of the child but does not have parental responsibility, may, 'do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare.'
35. The staff at [placement D] could make decisions for C on a day-to-day basis. For example, they wouldn't need to ask C's parents to approve what C is given for breakfast, what he wears, how he decorates his room, or what time he goes to bed. If C needed emergency medical treatment it is likely to be reasonable in all the circumstances for them to take decisions that would immediately safeguard his welfare, which may include authorising medical treatment to be given. But bigger decisions, such as what school C attended, went on a school residential trips, had non-urgent medical treatment, or had a piercing, would be left for the parents.
36. What is 'reasonable in all the circumstances' may not always be clear.
37. This means that in practice, there will need to be regular sharing of information, and discussions between those caring for C and his parents. At the 'children we care for' reviews, the IRO would be looking at this, and should be making sure that the local authority has not been over-stepping the boundaries of the parents' parental responsibility.
38. Section 33 of the Children Act 1989 sets out the effect of making a care order. Parental responsibility is shared.
39. Section 33(5) provides that the local authority may do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare. So, on a day-to-day basis the effect of section 20 and a care order would be the same, there would still be regular updates and conversations with the parents about C's daily life, and all this would still be subject to regular monitoring and review by the IRO at meetings.
40. The difference is with more significant decisions. Under section 20 the local authority steps back. With a care order, section 33(3)(b) provides that the local authority has 'the power ... to determine the extent to which a parent may meet his parental responsibility for him.' The local authority can only exercise this power to override the wishes of the child's parents if it is, 'satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.'
41. The local authority is required to consult with the parents about bigger decisions such as vaccinations, schooling, school trips, or contact arrangements. The local authority must obtain their views, and to take them into account in their decision making. So there would be a similar level of discussion and consultation. However, the difference is that in the event of a dispute, the local authority would have the power from section 33(3)(b) to override the parents if satisfied it was necessary to do so.
42. There is a level of decision beyond that, such as changing name, authorising serious medical procedures, moving to another country or placing a child for adoption, which the local authority could not make without first obtaining the consent of the parents or an order from the Court.

Analysis: care order or section 20?

43. To make this decision, I have considered all the circumstances of the case, with C's welfare being my paramount consideration (section 1(1) of the Children Act 1989). I have had regard to each of the factors on the welfare checklist that is set out at section 1(3) of the Children Act 1989.
44. C and his parents' human rights are also relevant to my decision. Their right to a family life must be protected, and any interference with that by the state (in the form of the local authority) should only happen where it is necessary to safeguard C's welfare. The level of interference should only be to the extent required; it should be proportionate to the risk of harm.

Arguments in favour of section 20

45. C's wishes and feelings are very important. C is a thoughtful, intelligent and articulate young person, who is very clear about what he wants.
46. He is a vulnerable young person who understandably wants his wishes heard, understood, and responded to. There is a risk that instead of bringing security, certainty and stability, the making of a care order could have the opposite effect for C. This issue has taken on central importance for him, and he is likely to feel destabilised and worried about the consequences of having a care order.
47. This is the main reason that the guardian, his mum and dad all support there being no order.
48. C's mum thinks it is very important that C continues to feel part of the family, and is treated the same as his younger brothers, none of whom are subject to local authority involvement.
49. Because of his experiences over the past two and a half years in the care of the local authority, neither C or his mum trust the local authority to make the best decisions for C.
50. C is particularly concerned to be allowed to make some decisions for himself, and to have his voice heard. He feels that his mum will generally be more supportive of him than the local authority.
51. Making no order and leaving the arrangements to the parents to give their consent represents the lowest form of intervention from the state. It is argued that this is all that is needed to secure C's placement, because his parents are very clear that they support him remaining in the care of the local authority. They do not intend to change their mind.
52. Although C's mum did withdraw her consent back in September 2021, the circumstances in which she did were on any view very difficult. It is understandable that she felt desperate, conflicted and unsure about how best to support C. In the end she didn't remove him from the local authority's care. Despite very real concerns about C's welfare in the past year, she hasn't ever threatened to withdraw her consent and has never done anything to undermine the placements. The risk that she might change her mind in the future is low. The risk of C's dad objecting to C staying in care is likely to be even lower.

Arguments in favour of a care order

53. I accept that both C's parents fully intend to give their consent and not to withdraw it. However, their intentions are based on the circumstances today, and this is a case in which there have been a lot of changes in circumstances.
54. I accept that the risk is low, but the risk does still exist. I hope that this placement will last, but given the history, the risk of breakdown does still exist. In that event, either parent may well feel conflicted or under pressure to accommodate C, and withdraw their consent. His parents love him and his relationship with them is incredibly important. But both parents have struggled to manage the relationship when C is living in the household. They have not been able to meet his needs, and as a result he and others in the household have suffered, or been at risk of, significant harm. Should he return to the care of either of his parents at a time of placement breakdown, those risks would still be there. This risk of harm would still exist if section 20 were withdrawn at any other time.
55. A care order provides more security and stability for C because it does not have that element of uncertainty with it. The stability of his placement under section 20 depends on both parents continuing to give their consent. But if a care order is made for C now, it will last until at least his eighteenth birthday, and it cannot be discharged except by an order of the Court.
56. That does not mean a care order is irreversible. If a time comes when C could safely return to the care of one or the other of his parents, or move to live independently, that can still happen under the care order, but that should be an organised and planned process. An application for discharge of the care order could be made if needed. By contrast, a change brought about by withdrawal of section 20 consent can happen in a sudden and unplanned way which is likely to bring with it disruption and confusion. I appreciate that C's experience under the interim care order has also included times where placements have come suddenly to an end, causing significant disruption, distress and uncertainty. The difference is that the local authority would still have a duty to manage the situation for C and find an alternative placement if there were a care order, but may not be the same if there were no order.
57. C's situation under section 20 would become more uncertain as he got older. If section 20 consent is withdrawn at some point in the future, that may mean that C then loses the chance to be supported by the local authority again after that. If C left the placement and there was no care order in place, the opportunities for the local authority to find an alternative setting that would meet his needs would be very limited or, depending on his age, may be lost completely.
58. If C was still fifteen or sixteen, the local authority could apply for an interim care order or emergency protection order, but it is highly unlikely to be in C's best interests to be the subject of urgent legal proceedings. If C is older, the local authority could not apply to the Court for orders that would enable them to provide support to him.
59. Once a care order is made, C is guaranteed to receive the full range of leaving care benefits.
60. That entitlement might apply if C remained in the care of the local authority under section 20 past the age of sixteen, but if he went home to either of his parents before his sixteenth birthday, then he would not be entitled to that support. [He would not be an "eligible child", "relevant child" or "former relevant child" for the purposes of ss23A – 23CA / Sch 2 Para 19B CA1989.]
61. A care order therefore has the advantage of guaranteeing the highest level of practical, financial, educational support and advice to C now and in the future as a care-leaver. That is not the case if no order is made.
62. A care order gives the local authority more powers to safeguard C if he were to abscond from his accommodation in the future (this was one of the risks that led to the declarations authorising C's deprivation of liberty in the past). If there is a care order in place, then the Local Authority can obtain a recovery order under section 50 of the Children Act 1989. It would not be able to do that if C were accommodated under section 20 (see section 50(4) Children Act 1989).

Exercise of parental responsibility

63. On a day-by-day basis, there will not be much difference for C in the way that decisions are made and communicated to him. He is fifteen, well able to communicate his wishes and feelings to those about him, and to explain the reasons behind the choices he wishes to be allowed to make. Under a care order or with section 20, those responsible for looking after him can make all decisions for him that promote or safeguard his welfare.
64. For more significant decisions the local authority will be consulting with his parents whether there is a care order in place or not.
65. If they don't agree, then the question is whether or not it would be better for the local authority to have the power to override C's parents.
66. On balance, I consider it would be in C's welfare interests for the local authority to have that power. My reasons are as follows:

(i) C's parents have not always got on well. They do not have a history of making decisions for C successfully together. If they do not agree about a decision about C's care this is likely to cause delay, confusion and upset for C as he waits for them to find a way to resolve it. The local authority will have limited or no powers to step in to help under a section 20 arrangement;

(ii) The local authority will be looking after him day to day and have better information about his wishes and feelings, about what is going on for him at that time, which will make it better placed to make decisions for him.

(iii) C's mum wants what is best for him and I believe she would only try to make decisions in his best interests. She has very good understanding of his needs. However, she and C have not always had an easy relationship. In the past there have been times when she has said hurtful things to C, or she has placed blame on him for her decisions. She has a partner and three other children, whose needs sometimes conflict with C's. This has in the past, and could in the future, make it difficult for her to make decisions that would put C's welfare first. There is a real risk that their relationship would be put under pressure if she did not make decisions in line with C's expectations;

(iv) The local authority is in a better position to put C's needs first when making decisions, where C's mother might find herself in a much more difficult situation due to the nature of her relationship with C, and her need to balance the needs of her partner and other children;

(v) the local authority can be trusted to make good decisions in C's interest. Although C has had an exceptionally difficult time, this is not because of fault on the part of the local authority. C's social workers have built trusting and good working relationships with C and the family. There has been good communication. C formed a very good relationship with his key worker at [placement D]. The local authority has shown that it can listen to C's wishes and be respectful of his views.

67. I accept the local authority's assurances that it will share information, consult with C's parents, and listen to their views. The law requires it to do so. The way in which the local authority has communicated with the parents throughout these proceedings also gives me confidence. The local authority can only override the parents' wishes if it is necessary to do so in order to safeguard or promote C's welfare. The IRO is there to make sure the local authority exercises this power appropriately.

Contact

68. I consider C's parents have under-estimated the difficulties that are likely to arise if the local authority is not able to take the lead in respect of contact arrangements. There have not been too many issues around contact over the last two and a half years but that is in large part because the case has been in proceedings and the local authority has been involved. The relationship between the parents is complex and difficult.
69. C's mum has accused C's dad of not following professional advice, of upsetting C by not being consistent about contact, of drinking alcohol during contact. She considers contact between C and his dad should always be supervised. C's dad does not agree. I think it unlikely that the parents will easily be able to resolve any disputes that may arise about this in the future. If there is a care order, the local authority will have a positive obligation to C and to the parents to facilitate reasonable contact for C and both his mum and his dad, to listen to ongoing concerns and to take steps to address them.
70. The local authority will be best placed to understand and respond flexibly to C's wishes and feelings around contact. There have been times during these proceedings where the local authority has had to step in in order to manage difficulties that have arisen so as to safeguard C's welfare. For example, when C was at [placement C], the carers contacted the local authority to ask them to intervene to ask C's mother not to contact C after 9pm and not to reply to texts when C was heightened as it made it harder to calm C. In June 2022 there was a violent incident involving C and his seven year old brother. Mother's husband then requested all contact to stop, without apparently speaking to C's mother first. The local authority needed to step in to support the family through this and re-establish contact safely.
71. Under a section 20 arrangement the Local Authority would have no power to support C by restricting, facilitating or regulating contact between C and either of his parents. This is not in C's best interests.

Conclusions

72. Having regard to all the circumstances, the welfare checklist factors, and the Article 8 rights of C and his parents to a family life, I am satisfied that a care order is required to secure C's welfare. I do not consider that no order and a section 20 arrangement would be sufficient to guarantee the stability and security that he needs. C needs to be settled into his permanent placement, so that he can receive the support required to enable him to manage his emotions in a safe way, to process his past experiences and start to recover from them, to build meaningful relationships with friends and family, benefit from education, and look to a future that will be much brighter and rewarding for him than the past few years have been.
73. I am of course mindful that this decision is against C's clearly expressed wishes, and that both his parents and the guardian felt his wishes should be acted upon. However, while the message that an order might send, or the feelings it might give rise to, are of course important, I must focus on all the circumstances of the case. C's wishes and feelings are a very important factor, but there are other factors to weigh in the balance.
74. The guardian is worried that making an order against C's wishes could lead to a deterioration in his mental health. I do take this seriously and of course I would not wish to do anything that might worsen C's situation for him. However, C is a vulnerable young person with a range of complex needs. He is going to continue to need a high level of support with his mental health whatever order is made. Again, this factor weighs in the balance, but ultimately it is outweighed by all the other factors which point me away from a section 20 arrangement and towards a care order.
75. When I consider all the circumstances, I am satisfied that the benefits of a care order substantially outweigh the perceived benefits of no order and section 20 consent. A care order will offer greater protection to C, and will provide him with the level of support, stability and security that he needs.
76. By contrast, there are significant disadvantages to C of there being no order.
77. Even though I appreciate this will come as a great disappointment to C, I have decided that I should make a care order to the local authority. I approve the care plan for him to remain at [placement D]. I approve the arrangements for contact. I am sorry to act against C's clearly expressed wishes, but I hope that this judgment will go some way to explain how I have come to form a different view. C has shown maturity and insight into his situation, and I hope that he feels some pride in the progress that he has made over the past months, despite the enormous challenges he has faced.
78. I would like to wish C and his family all the best for the future.

HHJ Joanna Vincent

Family Court, Oxford

Draft sent to parties: 4 November 2022

Approved judgment handed down: 9 November 2022


 


THE FAMILY COURT SITTING AT OXFORD

CASE NO: OX21C50029

IN THE MATTER OF C AND IN THE MATTER OF THE CHILDREN ACT 1989

B E T W E E N :-

OXFORDSHIRE COUNTY COUNCIL

Applicant

-and- A MOTHER First Respondent -and- A FATHER

Second Respondent

-and- C (through the Children's Guardian)

Third Respondent

AGREED FINAL THRESHOLD

The Local Authority contends that the Threshold Criteria under Section 31 of the Children Act 1989 is satisfied on the basis that at the relevant date, being 29 April 2020, C was beyond the control of his parents as they could not offer him the specialist care he required, and consequently he was suffering significant harm or was likely to suffer significant harm.

The threshold criteria is met on the following basis:

79. C has high and complex emotional needs, due to his early years' experiences which have caused him difficulties in managing and regulating his emotions. Unfortunately, neither [his mother or father] were able to provide C with the care he required, as it is specialised. Without specialist care C will exhibit behaviours that cause himself and those around him, emotional and physical harm. These behaviours have previously included:

a. Threats and attempts to take his own life

b. Self-harm through cutting

c. Been argumentative and aggressive towards his mother

d. Been aggressive towards his young siblings

80. There has been inconsistent contact between C and his father which was the result of a number of factors. This has caused C emotional distress and upset, and increased self-harming behaviours.
81. C's emotional welfare was harmed by the conduct of his Mother. On or around 28 July 2021, [she] sent messages to C including:

a. "I'm really looking forward to care proceedings for a 3^rd time because it didn't nearly break me enough the 2 previous times x"

b. "No I know you don't care, that's pretty obvious.

c. "But I hope that you remember that YOU chose this and I won't keep taking your anger and hatred and blame on me for it."

d. "When you are told by a social worker that you're not allowed to visit or come and see us, not allowed to join us on holidays, not allowed to do whatever……you chose this"

e. "15 months ago you went to try and make things better and because you can't stand having any parental boundaries, because you refuse to engage in any therapeutic help, you're never coming home. You are 13 years old and will have to live with this choice x"

f. "But you don't understand do you. Clearly. Because you still think you'll see your family as and when it suits you and that's not going to happen x."

82. C's inability to trust adults to provide for his needs, is likely to cause him to put himself in risky situations, and/or break down his family relationships, such that his physical, mental and psychological wellbeing is at risk. Unfortunately, at this time, [mother and father] cannot provide C with the specialist care that he requires.

Oxfordshire County Council

27 October 2022