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England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Cheshire East Borough Council v M & Ors [2025] EWFC 177 (B) (04 April 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/177.html
Cite as: [2025] EWFC 177 (B)

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Neutral Citation Number: [2025] EWFC 177 (B)
Case No: LV24C50766

IN THE FAMILY COURT
Sitting at Chester

Courtroom No. 1
Trident House
Little St John Street
Chester
CH1 1SN
4th April 2025

B e f o r e :

HIS HONOUR JUDGE PATES
____________________

CHESHIRE EAST BOROUGH COUNCIL

- and -

M

and

F

and

G

____________________

Transcript of a recording by Acolad UK Ltd
291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
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____________________

MS HENSHAW appeared on behalf of the Applicant
MS SWINSCOE appeared on behalf of the Respondent Mother
MS EDWARDS appeared on behalf of the Respondent Father
MR BROOK appeared on behalf of the children through their Guardian

____________________

HTML VERSION OF JUDGMENT (APPROVED FOR PUBLICATION)
____________________

Crown Copyright ©

    This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.


     

    HHJ PATES:

  1. The Court is concerned with the well-being of two children: A and B.
  2. The burden of this judgment will largely relate to A because he is the subject of much of the discussion during the hearing today. I do not neglect to consider B. I note that she remains placed with a family member under a community-based direction for further assessment, where she has been since March 2024.
  3. A was placed with the same family member in March 2024 and remained there until 7 March 2025.
  4. His interests, and those of B, are represented within these proceedings by their Children's Guardian. They are represented today by their counsel, Mr Brook.
  5. The Local Authority who brought care proceedings in relation to both children are Cheshire East Borough Council, represented by their counsel, Ms Henshaw. The allocated social worker is a locum social worker and has been allocated since 21 March 2025.
  6. The children's mother is M. She is [age redacted] represented by her counsel, Ms Swinscoe.
  7. The father of A is F. He has been a party in the proceedings since issue, has parental responsibility, but has not engaged in the proceedings at any point and, without opposition from the parties, I have discharged him as a party from the proceedings. He has clearly chosen not to engage and there is no utility in the court taking into account his participation or continuing to send him orders in circumstances where he has demonstrated no intention to be able to play any role within it.
  8. The father of B is G, represented by his counsel, Ms Edwards.
  9. I am not the allocated judge. The allocated judge is DJ Nassar. She has dealt with these proceedings from their issue in October 2024 at a case management hearing on 20 November 2024; at a further case management hearing on 12 December 2024; at a yet further case management hearing on 19 December 2024; at a further case management hearing on 9 January 2025, and at an application hearing on 20 March 2025.
  10. Pursuant to her order, the Local Authority's application in form C2 set out at B60 of the bundle dated 10 March 2025, was adjourned for hearing before me. It was suggested in the order by DJ Nassar that I should hear it sitting section 9. No inquiry was made with regard to authorising me to sit section 9 and accordingly upon receipt of the order, I sought authorisation and permission to sit section 9 as a judge of High Court level in the Family Court which was granted by Keehan, J.
  11. The Court at the first hearing had approved a plan of placement of both children in foster care, but it was understood that that would be only for so long as it took the Local Authority to find a suitable foster care placement. Curiously, the Local Authority, despite pre-proceedings and having issued the current application for a Care or Supervision Order, had not been able to locate a foster care placement despite that being their plan. It is unclear to me the extent of their searches, whether they went beyond the quantity of Local Authority approved foster carers to agency foster carers, whether they looked at foster carers for both children or for the individual children or what was the cause of that delay.
  12. The result of that was a further issue which was raised at a further case management hearing on 12 December 2024 as to whether the children would move to what were described as respite placements. That was specifically limited to a period of time over the Christmas holidays. The order which resulted at B40 in somewhat unusual terms directed that the Court "agrees A's respite care pursuant to 38(6)". That at least should have flagged up to the Local Authority that if they were seeking to change placement, irrespective of whether it was described as respite or not, then some form of direction would need to be made, which in that case appears to have been a section 38(6) direction mandating a community assessment with family members in another part of the United Kingdom.
  13. It is not clear to me whether any party turned their attention to the precise nature of that respite placement, whether it truly was a section 38(6) "respite placement" or whether it was a period of contact which could be authorised. Certainly, the failure to grapple with the underlying legality of it and whether it needed sanction and whether it could be properly sanctioned as a community-based assessment was seemingly not dealt with by the Court or the parties. In my judgment that was a failure to understand and to properly articulate the nature of that period of time whereby they were going to spend time with family members as part and parcel of a period of contact.
  14. It is not clear to me why a period of contact would have been authorised as a community-based assessment under section 38(6) if it was otherwise regarded as being appropriate in the circumstances, unless the existence of the section 38(6) assessment with a family member within Cheshire was recognised as requiring to be varied in order to effect this move. The Christmas plans were approved and A, in particular, returned to the care of a family member within Cheshire around 27 December 2024.
  15. By this point DJ Nassar had already directed an IRH on 31 March 2025. By 9 January 2025, she had already moved the IRH to 8 April 2025. During that period, in accordance with the statement prepared by the Local Authority at page B68, there was a developing problem. This involved A going missing; fixed term exclusions from school; two weeks prior to 7 March 2025 an incident of self-harming, which appears not to have prompted the Local Authority to undertake any investigation of that; a further incident of self-harming, which was followed up on 7 March 2025 in the context of somewhat troubling and problematic responses by adults to Athan within the home; observations made on that day that his physical appearance was a matter of concern, including that he was in "desperate need of a haircut" and informed the social worker that he had resorted to cutting his own hair. The social worker noted his one pair of school trousers were damaged and had not until that date been seen to be replaced by his carer. It is said that it is "known that A eats very little every day".
  16. It is entirely unclear from the chronology what the Local Authority were aware of, when they were aware of it and what they did to ensure that A's basic needs and the obvious deterioration in his presentation was addressed before 7 March 2025. It does not appear to me on a superficial analysis, and without the benefit of a more detailed statement to set out the chronology of involvement, why it was only on 7 March 2025 that the Local Authority realised how matters had been deteriorating. It is not clear when the school shared the update with the Local Authority. An update set out at B73 paragraph 211 would only have added to the concerns of the Local Authority.
  17. The legal position at that stage was that the Court had continued its section 38(6) direction for a community-based assessment with a family member within Cheshire. The Local Authority were fully aware of it. They had still by 7 March 2025, despite them issuing proceedings in October 2024, not obtained a foster care placement. It is a matter of incredulity to the Court that their position had pertained for that length of time. The situation had deteriorated, potentially without the Local Authority realising it, although it would have been obvious had inquiry been made, and no foster care placement had been located for either child.
  18. What then transitioned was the description of A going for a period of "respite care". The reality was he moved from school. He moved from the existing arrangements for contact. He moved from his social environment, and he moved to live with family members in another part of the United Kingdom without any limit of time, without any immediate plan for his return because the Local Authority decided that that was better than being forced to provide accommodation in the local area at short notice.
  19. There may well have been positive welfare advantages for that decision because he had an existing relationship with those family members, but it would require justification. It would require clarity as to how long. It would require the Local Authority to address the impact upon his education, the impact upon him in terms of contact, the impact upon him in terms of ability to monitor his deteriorating position and to support the family carers. It required the Court to be aware of the move and to scrutinise the quality of the interim care plan and the basis upon which the Local Authority regarded this as an option which they could regulate.
  20. For reasons which are not clear the Local Authority made no application on 7 March 2025. They made no attempt if it was late on 7 March 2025 to approach the out-of-hours service to seek an out-of-hours authorisation to discharge the section 38(6) direction to legally secure the placement in another part of the United Kingdom. They took no step to put the matter before the Court before moving A or providing the constituents of their plan and the way in which they were proposing to regulate it so the Court could scrutinise their care plan and understand what they were going to do and for how long, if it was to be an open-ended interim placement.
  21. Having effected the move, the Local Authority did apply on 10 March 2025 by C2 for "interim removal" as they put it. At the first hearing of that application before DJ Nassar, who was confronted with issues as to what this placement was, the Local Authority continued to articulate the notion that it was a respite placement and presumably suggested that this description may have a significance legally; the Guardian being concerned that if it was a placement requiring to be authorised under paragraph 19 of schedule 2 of the Children Act 1989, then it would require the relevant factors in paragraph 19(2), including A's consent to be met or if he did not have sufficient maturity for the Court to dispense with his consent. As a child of [age redacted], it is not clear whether or not he would have had sufficient maturity, but that issue would have been addressed.
  22. I have not detected any evidence that the Local Authority promptly informed the Local Authority in another part of the United Kingdom that he had moved into the home of the carers on an open-ended basis with no clear dates in circumstances where there may well have been a requirement to deal with crisis needs and/or therapeutic needs. It appears that there was reference to that Local Authority but that was perhaps up to two weeks after he had moved.
  23. The interim care plan was not filed with the application, it was not filed on 20 March 2025 but has been filed today without, so far as I am aware, any direction for it to be filed today.
  24. The position has significantly changed in that the Local Authority have now located a suitable foster placement and A will move to that placement in accordance with a transition plan which has already begun on this Sunday. That, therefore, will be a regulated placement. It is not clear how the Local Authority proposed to regulate the placement but the logic appears to me to be this: the section 38(6) direction for community assessment in respect of A with the family member within Cheshire must be discharged immediately, in other words forthwith and to the extent that he is with family members in another part of the United Kingdom only until Sunday that is regulated as a period of contact.
  25. In addition, the Local Authority, under their interim care order, will arrange for him to move from the place where he is having contact with a family member to his placement with foster carers on Sunday. Unless there are any observations to the contrary that is the legal framework under which he will now live or stay or spend time with family members in another part of the United Kingdom until he returns to his placement on Sunday.
  26. Finally, I have sympathy for the Local Authority whenever they have to respond to an urgent situation involving child welfare. I do not criticise them in the circumstances for the welfare decision for A to move to the care of other family members if there was a genuine urgency in terms of the circumstances of 7 March 2025. Whether there was a genuine urgency, which required a move on 7 March 2025, remains an open question because the combination of events did not begin on 7 March 2025 and were clearly obvious and apparent if inquiry had been made well before then.
  27. Secondly, I deprecate the failure of the Local Authority to recognise there was a section 38(6) direction which they needed to respect as a matter of law, and they were not entitled to move A on 7 March without addressing the existence of that direction. Further, if this were a case in extremis then even a short delay on the day in moving him with a prompt application either that day or out of hours if it was so urgent to regularise the position would have been better than waiting till Monday, at which point there had still been a failure to understand the true legal character of the placement and to produce any kind of interim care plan which demonstrated what they were going to do, for how long and when they would seek to provide answers if they could not provide answers then for critical questions, such as why a placement in another area of the United Kingdom was in his best interests if it meant he would not be educated, he would lose connection with friends, he would not continue to have contact and it was anything other than a short defined period of time limited by days?
  28. The planning for A to that extent after 7 March 2025 failed A. The Local Authority failed to comply, in my judgment, with the requirements placed upon them to put before the Court a proper plan for it to scrutinise in circumstances where they were seeking to place him in another area of the United Kingdom far removed from access to all of those resources, including therapeutic support and the ability of a social worker readily to visit, to see and support the family. Essentially, the Local Authority rather than discharge their responsibility to find a suitable foster care placement took the option - which appeared better than the as yet unknown possibility of a placement in the locality - of placing him with family in another area of the United Kingdom and then he has stayed there.
  29. During the period of time he has stayed there the situation has not improved for A. He has enjoyed the company of his family, but he desperately misses the security of his friendships and his school. Contact with B has ended. Contact with his mother has been indirect only through the medium of telephone calls and texts. They themselves have had their own difficulties. He has self-harmed within the home.
  30. I do not know in retrospect whether if the Local Authority had sought separate foster care placements early on with sufficient energy and focus, whether they would have found one, because the reality is B has stayed with family within Cheshire and that placement does not appear to be under any threat in terms of stability. The situation for A was always more difficult because as an older child he had experienced a longer period of dysfunction.
  31. Consequently, whilst acknowledging the difficult situation the Local Authority faced, in my judgment, they can and must be criticised for the way in which they have managed this case from issue in terms of providing the necessary support and placement for A; in terms of gauging and assessing the deterioration; in determining that a move to another area of the United Kingdom would be appropriate without any opportunity for that issue to be placed before the Court or an interim care plan to be scrutinised, or the other parties to have any opportunity to convey their submissions as to whether, in accordance with the relevant statutory criteria in section 22 CA 1989, this really was the appropriate placement to make; in failing to recognise that this was an interim placement from the start, because it was never defined by a clear scope for a short-term holiday but was an open-ended emergency interim placement in circumstances where the Local Authority viewed the placement with family within Cheshire as having broken down.
  32. The failure to file an interim care plan by 20 March 2025 was a significant failure, which should have addressed all of the substantive welfare issues which were arising because of the placement in another area of the United Kingdom. The failure to do so until this morning is unacceptable. Consequently, going forward, I expect the Local Authority to ensure that both from the social care and legal departments, they adopt sufficient rigour to make sure the needs of these children are not neglected whilst in their care, and they develop promptly plans for their placement and their therapeutic needs consequent upon that placement and contact which will enable them to move forward and to progress and to recover where possible from the harm that has already been sustained.
  33. I expect this judgment to be considered by a Head of Service within the Local Authority who may wish to reflect upon the circumstances and ensure that there is clarity around these issues. Consequently, I approve the making of an interim care order to continue on the basis of the regulated placement of A with foster carers. I approve the Local Authority to set about promoting contact between the children and their parents and each other in accordance with a plan leading to a contact planning meeting, which must be set out in terms of a date within the order, so we know there is a focus for the development of those arrangements.
  34. I will approve the timetable, save that the parents will respond to their final evidence by seven days after 29 May. Accordingly, there will be an earlier IRH listed before DJ Nassar, which I intend to deal with at the conclusion of this hearing. Subject to any other matters, those are the terms of my ex tempore judgment.
  35. End of Judgment
     
    This transcript has been approved by the judge.

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