NEWCASTLE UPON TYNE DISTRICT REGISTRY
ON APPEAL FROM THE NORTH TYNESIDE FAMILY PROCEEDINGS COURT
Newcastle Upon Tyne NE1 3LA
B e f o r e :
| In the matter of K (dob 20.02.03)
THE COUNCIL OF THE BOROUGH OF NORTH TYNESIDE
|- and -
(3) K (by her Children's Guardian KW)
Miss Angela Giovannini (instructed by David Gray Solicitors) for the first respondent (mother)
Mr Frazer McDermott (instructed by Hindle Campbell) for the second respondent (sister)
Miss Elizabeth Lugg (instructed by Tait Farrier Graham) for the third respondent (child)
Hearing date: 13 February 2007
Crown Copyright ©
Mr Justice Munby :
"Both the local authority and the guardian believe that the psychological evidence means that mother presents an unacceptable risk to [K] and that she cannot safely return to mother's full time care even on a trial basis. Sadly, we too believe that the potential risk to [K], if she were to be returned to her mother's full time care is not acceptable even for a trial period … We recognise the risks posed by [mother] if [K] were to return to her full time care even on a trial basis … The evidence is very strong that those risks are too great."
There is no challenge to that.
"we are not convinced that the local authority have really explored the issue of direct contact … we are of the opinion that sufficient attention or focus has not been given to the potential for an open adoption. It is simply not good enough to say, leave it up to the Adoption Panel or it is for another day. We have to scrutinise the care plan and approve of everything in it if we are to make a final care order. It must be very clear in our reasons by now that we are not satisfied that it is in this little girl's best interests to terminate direct contact post adoption to her mother and half sisters.
… We are not prepared to leave anything to the discretion of the Adoption Panel, it would be an abrogation of our duty not to consider the question of contact closely now."
"I agree with [SS's] assessment that there should be indirect contact only. My agreement is based on the present situation … My view is that direct contact is an issue that should be considered at the adoption stage rather than at the placement stage … I recommend that direct contact should be further considered at the adoption order stage."
"Having considered all of this fresh evidence together with our previous reasons, we continue to place [K]'s welfare as our paramount consideration. Her longer term emotional development is crucial and this is why we have spent so much time looking at the issue of direct contact. We continue to state that this is an unusual case and that we are aware of the theory of adoption as presented to us. However we have weighed up all of the evidence and we are not prepared to approve the final care plan. We know that it is exceptional for a Court to go against a Guardian's recommendations but we have given our reasons for so doing and given our reasons why we cannot place great weight on [SS]'s evidence. We realise the implications of us not approving the care plan because it means we must dismiss the case. This would mean that the only person with parental responsibility is mother and we have given full reasons as to our concerns about mother's capabilities in caring for [K]. However we are not prepared to approve a care plan which we do not think promotes [K]'s longer term emotional development. We have given an opportunity for everyone to readdress the issue of direct contact and we are not satisfied with the evidence given to us about direct contact. We do not think that people have applied adoption theory to [K]'s individual circumstances.
Therefore we dismiss the application."
The Justices' order dated 16 January 2007 provided accordingly that the application was dismissed.
"carefully to scrutinise the care plan prepared by the local authority and to satisfy itself that the care plan is in the child's interests."
"if the court is not satisfied the care plan is in the best interests of the child, the court may refuse to make a care order."
"a rare case in which the court's dissatisfaction with the ultimate care plan will be such as to prevent adjudication in a case where the court is satisfied both as to the threshold criteria and that a care order is in the interests of the child."
The same point was made by Nourse LJ in Re T (A Minor) (Care Order: Conditions)  2 FLR 423 at page 429:
"it is the duty of any court hearing an application for a care order carefully to scrutinise the local authority's care plan. If it does not agree with the care plan, it can refuse to make a care order … The cases in which it is appropriate to take such a course will no doubt be rare."
That was repeated by Butler-Sloss LJ in Re L (Sexual Abuse: Standard of Proof)  1 FLR 116 at page 126.
"It is elementary that the only power of the court under Part IV is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say."
Nor (see at para ) does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority's care plan, must achieve its objective by persuasion rather than by compulsion.
"The point at which the court withdraws from further control over the child and passes the responsibility to the local authority is a matter of the exercise of discretion by the court and will vary with each set of circumstances. But at some point, if a care order is made by the court, it must hand over the future arrangements for the child to the local authority. That is not abdication of responsibility by the court; it is acting in accordance with the intention of the legislation. The Children Act provides for many of the most important decisions, including whether to place a child for adoption, to be made by the local authority and therefore there is nothing untoward in the judge leaving the ultimate decision in the hands of the local authority with whom the child is placed."
She went on to observe in Re L (Sexual Abuse: Standard of Proof)  1 FLR 116 at page 125 that:
"An interim care order is to be used for its intended purpose and not to be extended to providing a continuing control over the actions of the local authority."
"Only in the rare case where the court and the local authority remain at odds over the overall objective of the plan should it be necessary for the court to decline to make the care order and to retain control of the case by means of a series of interim care orders."
"if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children's best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent."
Balcombe LJ continued:
"It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him … then that is the unfortunate position he has to face.
… It is an unhappy position, where there is a dispute between all those whose professional duty it is to have the best interests of the children at heart, if they cannot reach agreement. But in those particular circumstances, as I see it, the judge really has no alternative. He has to choose what he believes to be the lesser of two evils. That may be making a care order with the knowledge that the care plan is one which he does not approve, or it may be making no order with the consequences to which I have already adverted."
"If there had been a realistic alternative to the care plan, the judge was of course entitled to urge the local authority to look carefully at it … the judge is not a rubber stamp. But if the threshold criteria have been met and there is no realistic alternative to a care order and to the specific plans proposed by the local authority, the court is likely to find itself in the position of being obliged to hand the responsibility for the future decisions about the child to the local authority. In this case … [t]he child would have to stay in care and in my view there was no alternative to the care plan as the lesser of two evils".
"The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court)  2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court's determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it … In the normal case let there be – in the natural forum of the family court – argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child."
A recent example of the process working towards acceptance, albeit reluctant acceptance, by a local authority of the court's view as to the desirable form of care plan can be found in Re X, Barnet London Borough Council v Y and X  2 FLR 998 (see in particular at paras ,  and ).
"once a care order has been made, the court can no longer monitor the administrative arrangements for the child and has no say in those arrangements … After the care order is made, the court has no continuing role in the future welfare of the child. The local authority has parental responsibility for the child."
But this is subject to an important qualification in relation to matters of contact. As Butler-Sloss LJ expressed it in Re L (Sexual Abuse: Standard of Proof)  1 FLR 116 at page 124, explaining her earlier judgment in Re B (Minors) (Care: Contact: Local Authority's Plans)  1 FLR 543:
"The effect of the Children Act is to set aside the former powers of the court in wardship and to remove from the court any continuing control over children after the making of a care order unless or until a further application was made to the court. On the making of a further application, such as for residence or contact to the child, the powers of the court and the exercise of discretion under s 1 are restored for the duration of the application. If the care order remains in place, other than by control over contact by virtue of the provisions of s 34, the court has no further part to play in the future welfare of the child."
"The proposals of the local authority, based on their appreciation of the best interests of the child, must command the greatest respect and consideration from the court, but Parliament has given to the court, and not to the local authority, the duty to decide on contact between the child and those named in s 34(1). Consequently the court may have the task of requiring the local authority to justify their long-term plans"
though, she added,
"to the extent only that those plans exclude contact between parent and child."
"the issue of contact often depends on whether contact would frustrate long-term plans for the child in a substitute home, such as adoption where continuing contact may not be for the long-term welfare of the child. The presumption of contact, which has to be for the benefit of the child, has always to be balanced against the long-term welfare of the child and particularly where he will live in the future. Contact must not be allowed to destabilise or endanger the arrangements for the child and in many cases the plans for the child will be decisive of the contact application."
The challenge to the Justices' decision
"There has been no order allowing the local authority to terminate contact, so contact to K of some sort must be arranged by the local authority. The future contact is a matter for reconsideration by the local authority on the long-term arrangements for the child with no doubt in a case of this sort potential adopters. The mother also has a right to seek defined contact which we were informed she is likely to do at the January 1998 hearing. Unlike the judge I do rather wonder whether with the adoption of a very young child there is much prospect of successful long-term direct contact with the mother. It is not for this court to decide but in itself it is not a reason to adjourn the case."
i) the mother's very clear wish that, if she cannot return home, K should stay with her foster carers come what may, even if they are not approved as adopters; and
ii) the local authority's unequivocal confirmation, in response to a very specific question posed by Miss Giovannini (Is it the local authority's case that adoption is the only way forward for K, or is the main objective that K should stay with her foster carers?), that in its opinion adoption is the appropriate way forward for K even if that means removing her from her foster carers.
"The overall aim of this plan is to secure [K]'s needs for permanency outside of the birth family.
The local authority plan is for this to be achieved by adoption with indirect contact between [K] and her birth family. [K] was considered by North Tyneside Permanency Panel on 7 April 2006. The Panel endorsed the plan of adoption, including the plan of indirect contact post adoption.
The plan for permanency for [K] outside her birth family is now accepted by her mother … , however the nature of her permanent placement is not agreed. This will be determined at a future hearing.
… [K]'s needs would be best met by a permanent placement, whether this is with her current carers or elsewhere … In the event that [K]'s permanent placement is not to be with her current carers, the plan is for [K] to remain in her current placement until she moves to her permanent placement.
… The local authority will plan concurrently in respect of [K]'s permanent placement with her current carers and in seeking other carers for her. Such other carers will be made aware that the issue of future direct contact is still to be determined.
… In the event that [K]'s permanent placement is not with her current carers, the Local Authority will seek to match her with appropriate permanent carers without delay."
The way forward
A final point
"[Legal] advised that the local authority has appealed against the magistrates' decision to dismiss the local authority's case even though they have made a finding that mother was a risk to the child. Whether or not mother should have direct contact with [K] post adoption was an issue …
The issue of contact was discussed and Panel was advised that independent assessments of birth mother by two psychologists both made clear that direct contact between [K] and her birth mother was not recommended."
i) In the first place, it is misleading to state baldly that there was "a finding that mother was a risk to the child." Although the Justices found that the mother would pose a risk to K if she was returned to her care, they did not find that K would be at risk from contact with her mother.
ii) Secondly, it is simply wrong to say that "both [assessments] made clear that direct contact … was not recommended." The fact is that one of the two experts, RD, did not deal with the matter of direct contact at all; the other, EL, referred in her report dated 20 August 2006 to direct contact once a year as a possible option.