England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
ON APPEAL FROM THE NORTH TYNESIDE FAMILY PROCEEDINGS COURT
(In Public)

		The Law Courts Quayside Newcastle Upon Tyne NE1 3LA
		1 March 2007

Mr Justice Munby :

1. This is an appeal from the family proceedings court. It raises the question of what a court hearing care proceedings should do if it disagrees with the care plan proposed by the local authority.

The facts

2. The appeal relates to a small girl, K, who was born on 20 February 2003 and who has therefore just passed her fourth birthday. K has two older half-sisters, A, born in 1986, who is twenty years old, and N, born in 1988, who is 18 years old. With the consent of her mother (her father does not have parental responsibility and has played no part in her life) K was placed with a foster carer on 24 December 2004. She remains in her care, latterly in the joint care of the original foster carer and her partner. So K has spent well over half her short life with her foster carer. Care proceedings were commenced on 15 February 2006. (Both K's children's guardian and the Justices were properly critical of the local authority's delay in commencing the proceedings.) On 27 March 2006 A was joined as a party. On 4 August 2006 the local authority applied for a placement order. The matter came on for final hearing in the family proceedings court on 14 November 2006.
3. Consistently with a recommendation of the Permanency Panel (see below) the local authority's care plan dated 21 September 2006 was for permanency through adoption. K's contact with her mother and her siblings was to be terminated after placement. There was to be only indirect contact thereafter. The mother opposed the care plan, seeking K's rehabilitation to her care. A was no longer putting herself forward as a carer, save as someone who could support and assist the mother. The children's guardian supported the local authority's plan for adoption and in her report dated 27 October 2006 prepared for the purpose of the care proceedings recommended that a care order be made. In her report, also dated 27 October 2006, prepared for the purpose of the placement application she recommended that a placement order be made but observed that "the issue of direct contact is a difficult one and I think it does merit further exploration beyond the remit of these proceedings".
4. The Justices heard evidence over three days (14-16 November 2006) and on 16 November 2006 adjourned for written submissions to be lodged. The children's guardian was the final witness. At the very end of her evidence the Justices raised with her the question of what the Chairman referred to as open adoption. Her response was "I think I indicate in my placement report that I don't close the door on that idea absolutely. I think it's worth visiting outside of the remit of these proceedings."
5. On 8 December 2006 the Justices delivered their reasons. They found threshold established and ruled out both the mother and A as carers for K. Their findings in relation to the mother were stark:

"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.

6. The Justices approved in principle the local authority's plan for adoption and made an interim care order to last until 16 January 2007. But they were concerned about the local authority's plan that there should be no direct contact post-adoption:

"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."

7. The Justices adjourned the matter, essentially for two reasons: first, to enable the local authority to reconsider that part of its care plan which related to post-adoption contact and, secondly, to enable the local authority to adduce further evidence on the point.
8. In accordance with directions given by the Justices, the local authority filed a statement by SS, a senior social worker in the local authority's adoption team. The guardian filed a further report dated 11 January 2007 dealing with the issue of direct contact in more detail. She concluded:

"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."

9. The case came back before the Justices on 16 January 2007. The local authority declined to alter its care plan. The Justices heard further evidence, including evidence from SS and from the guardian. They were disappointed with SS's evidence, saying that "she has presented to us a theoretical argument without really applying it to [K]'s individual case."
10. The Justices decided to dismiss the local authority's application for a care order. The essential part of their reasoning was as follows:

"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.

11. The local authority immediately appealed. The notice of appeal is dated 18 January 2007. The same day, His Honour Judge Cartlidge (sitting as a Judge of the High Court) made an interim care order by consent of all parties until 6 February 2007, the date when it was anticipated that the appeal would be heard by me. In the event I had to adjourn the hearing until 13 February 2007. I extended the interim care order accordingly.
12. The notice of appeal asserts that the Justices were plainly wrong in refusing to make a care order. No fewer than sixteen discrete grounds are identified in support of this assertion. I need not go through them all in turn. The central core of the local authority's appeal, which is supported by the guardian, is that the Justices, having found that K cannot return to the care of her mother, made an order permitting this; failed to address at all how K could be kept safe if the local authority did not share parental responsibility; failed to consider that there is no realistic alternative to a care order; placed too much weight on the issue of direct contact post adoption; failed to consider that a care order would not in itself permit the termination of contact; failed to consider that contact can be considered at later stages; and failed to consider all the options available to them.

The law

13. The starting point is, of course, the fundamentally important judgment of Wall J in Re J (Minors) (Care: Care Plan) [1994] 1 FLR 254, approved by the Court of Appeal in Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423 and in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116. At page 258 Wall J spelt out the obligation of the court:

"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."

He continued:

"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."

14. At page 262 Wall J expressed the hope that it would be

"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) [1994] 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) [1996] 1 FLR 116 at page 126.

15. It is important to appreciate the limit of the court's powers. As I said in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160, at para [11]:

"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 [12]) 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.

16. One technique which, on occasions, can properly be used is to make an interim care order rather than a final care order, inviting the local authority in the meantime to re-consider matters. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
17. The general principle was explained by Butler-Sloss LJ in a passage in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116 at page 124 which she repeated in Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390 at page 399:

"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) [1996] 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."

Hale LJ made much the same point when she commented in Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, [2002] 2 FLR 582, at para [67] that:

"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."

18. That said, the court is not obliged to retreat at the first rebuff. In an appropriate case the court can properly require the local authority to reconsider its care plan more than once: see for a recent example Re X, Barnet London Borough Council v Y and X [2006] 2 FLR 998.
19. But the court may, nonetheless, find itself faced with a situation where it has to choose the lesser of two evils. As Balcombe LJ said in Re S and D (Children: Powers of Court) [1995] 2 FLR 456 at page 464, the judge may, despite all his endeavours, be faced with a dilemma:

"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."

20. Butler-Sloss LJ addressed such a situation in Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390 at page 398:

"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".

21. In practice courts are not very often faced with this dilemma. Wilson J recognised in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 at para [51] that "a damaging impasse can develop between a court which declines to approve their care plan and the authority which decline to amend it." But, as he went on to observe:

"The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court) [1995] 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 [2006] 2 FLR 998 (see in particular at paras [156], [160] and [162]).

22. All this, however, is subject to one fundamental qualification which is, as it seems to me, central to the seeming dilemma with which the Justices were faced in the present case. It is the point explained by Butler-Sloss LJ in Re B (Minors) (Care: Contact: Local Authority's Plans) [1993] 1 FLR 543 and again in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116.
23. The starting point is the general principle stated by Butler-Sloss LJ in Re B (Minors) (Care: Contact: Local Authority's Plans) [1993] 1 FLR 543 at pages 548 and 551:

"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) [1996] 1 FLR 116 at page 124, explaining her earlier judgment in Re B (Minors) (Care: Contact: Local Authority's Plans) [1993] 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."

24. It follows from this that the court, when considering issues of contact by or to a child in care, is not fettered by the care plan, even if the care plan is one that has previously been considered and approved by the court. Indeed, in Re B (Minors) (Care: Contact: Local Authority's Plans) [1993] 1 FLR 543 the court specifically rejected the local authority's submissions (see at pages 548 and 552) that the court "ought not to make a contact order if the effect was to undermine or thwart the long-term plans of the local authority" and that the court "cannot go behind the long-term plans of the local authority unless they were acting capriciously or were otherwise open to scrutiny by way of judicial review." Butler-Sloss LJ explained the true principle at page 551:

"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."

25. That is not of course to deny the very considerable weight that the local authority's plan may carry because, as Butler-Sloss LJ had just observed:

"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."

26. Moreover, section 34 assumes that, at least in the first instance, contact is a matter for the exercise of discretion by the local authority. But the principle is clear. In the final analysis it is for the court, exercising its powers under section 34, to determine questions of contact, whatever the care plan may or may not have to say on the subject. Furthermore the role of the court in relation to matters of contact is now enhanced in the light of its duties and powers under sections 26 and 27 of the Adoption and Children Act 2002.

The challenge to the Justices' decision

27. Miss Rachel Hudson on behalf of the local authority and Miss Elizabeth Lugg on behalf of the guardian make common cause. They submit that the Justices dismissed an application for a care order in circumstances where there was no one to care for the child other than an inappropriate parent. The Justices did not go on to explain how they thought these risks could be managed without any order. All they have achieved is massive uncertainty for K, who finds herself in a legal and emotional limbo. There is no realistic expectation that K can be rehabilitated to her mother, either now or within any realistic timescale. So K must, therefore, remain in care. The reality, they submit, is, as the Justices themselves recognised, that only a care order and a permanent substitute family can provide K with what she needs. By dismissing the application for a care order the Justices have in fact permitted the very thing they ruled out, thus contradicting themselves and without explaining, let alone suggesting any route out of, the contradiction.
28. Miss Hudson and Miss Lugg submit that there was, and is, no realistic alternative to granting the local authority the care order it was seeking. It is clear beyond peradventure, they say, that K's welfare requires that a care order be made.
29. The essential vice in the Justices' reasoning, they submit, is the Justices' failure to consider that they could at one and the same time have made both a care order and a contact order under section 34. True it is that this is not what the mother was asking them to do – she was resisting the making of the care order – but that would not have precluded them making an appropriate order of their own motion. As Miss Lugg put it in her skeleton argument, pointing to Re H (Children) [2005] EWCA Civ 318 (the latest authority on a point which goes back at least as far as Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116), the Justices should have made a final order but refused the local authority permission under section 34(4) to terminate contact. Alternatively the Justices could have made a contact order. In any event, whilst the Justices might have been approving the care plan, any contact order would have superseded any stated intention by the local authority in the care plan. This, she submits, would have been far and away the lesser of two evils. She suggests that the Justices might then have adjourned the placement application to a hearing after the position of the foster carers had been resolved.
30. Miss Angela Giovannini on behalf of the mother and Mr Frazer McDermott on behalf of A likewise make common cause in seeking to resist the appeal. They frankly acknowledge the Justices' inconsistency, having ruled out rehabilitation to the mother, in then dismissing the application for a care order, leaving the mother as the only person with parental responsibility. They accept that in the circumstances K has been left in limbo. Miss Giovannini also properly accepts that the Justices could have made both a care order and a contact order. But they submit that the Justices were nonetheless entitled to make the order they did. The Justices, they submit, were frustrated in their attempt to secure a care plan reflecting what they considered to be in K's best interests. It would, they contend, have been equally inconsistent for the Justices to have approved a care plan providing only for indirect contact when they were so strongly of the view that to terminate direct contact was not, or was not necessarily, in K's best interests.
31. Miss Giovannini points out that at one stage the local authority seems to have been submitting baldly that the question of contact, once a care order is made, is a matter for the local authority to decide, not for the court. Support for that proposition was said to be supplied by Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390, a case to which, as I understand it, the Justices were referred. Miss Giovannini submits that it is hardly surprising that in these circumstances the Justices did not want to approve a care plan that contained provision for indirect contact only – something that the Justices, she says, strongly believed was not in K's best interests.
32. I can only say that the authority relied upon provides absolutely no support at all for a proposition which, stated in these bald terms, is simply inconsistent with both Re B (Minors) (Care: Contact: Local Authority's Plans) [1993] 1 FLR 543 and Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116. (I should make it clear that Miss Hudson bears no responsibility for any of this. She did not appear before the Justices. Nor did she prepare the local authority's initial skeleton argument in support of the appeal, coming into the matter only at a very late stage.)
33. It is true that the headnote to the report of Re R (Care Proceedings: Adjournment) [1998] 2 FLR 390 summarises part of the court's holding as having been that "The question of contact, once a care order was made, was a matter for the local authority to decide, not for the court," but that statement does not appear anywhere in either of the judgments and is, with all respect to the reporter, an inaccurate and indeed misleading summary of the relevant passage in Butler-Sloss LJ's judgment at page 398.
34. What Butler-Sloss LJ actually said was this:

"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."

35. To say that contact was not in the circumstances of that case a matter for "this" court – the Court of Appeal – was one thing, and something I can readily understand, but Butler-Sloss LJ was certainly not saying that contact was not a matter for "the" court – the court at first instance – thereafter. On the contrary, as the passage I have just set out makes quite clear, Butler-Sloss LJ envisaged that the question of contact was something which the mother was entitled, and indeed likely, to bring back before the court. Moreover, she went on at page 399 to set out the very passage from her earlier judgment in Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116 at page 124, quoted at paragraph [23] above, in which she had unequivocally asserted the court's "control over contact by virtue of the provisions of s 34."
36. So it may be that the Justices were misled by the law report. Be that as it may, however, the Justices, in my judgment, quite plainly fell into error.
37. I should like to pay tribute to the Justices' reasons, which are more than usually careful, detailed and thoughtful. Their reasons demonstrate the Justices' complete mastery of the evidence and the facts and provide compelling justification for their fundamental findings (a) that threshold was established and (b) that rehabilitation to the mother's care was quite impossible, just as they explain why the Justices were – appropriately, as it seems to me – concerned that questions of future contact had not been adequately explored. But in one fundamental respect the Justices erred.
38. The Justices seem to have thought that they should not approve the care plan – on one reading of their reasons to have thought that they could not approve the care plan – unless, having scrutinised it, they approved of "everything in it" (see the passage, quoted at paragraph [6] above, where they said "We have to scrutinise the care plan and approve of everything in it if we are to make a final care order"). In saying that, and in deciding not to approve the care plan and, accordingly, not to make a care order because of their concerns about contact, the Justices, I regret to say, fell into plain error. Because the point on which they disagreed with the local authority related only to contact, albeit contact following adoption, the Justices were not, as it seems to me, faced with Balcombe LJ's choice of the lesser of two evils. Their statutory powers under section 34 of the Children Act 1989 and sections 26 and 27 of the Adoption and Children Act 2002 provided them with the escape from the dilemma which – erroneously, in my opinion – they thought they were faced with.
39. What the Justices could, and in my judgment should, have done in the circumstances was, as it were, to say, "Except in relation to contact, we approve the local authority's care plan. In relation to contact we are not prepared to approve the care plan; indeed, we reject it. But that is not a reason why we should refuse to make a care order when all the other circumstances so plainly demand that we do. On the contrary, we must make a care order, though making it explicitly clear that questions of contact will require further consideration by the court and that we are not approving the local authority's care plan so far as it relates to contact. K must remain in care. The local authority must share parental responsibility for K with her mother and must now implement its plan for permanency, a plan which, except in relation to contact, we approve."
40. The Justices could then have gone on to deal with the question of contact, either by making an order then and there, or by giving directions for the future determination of the issue, or by leaving it to the mother (or the children's guardian) to make an appropriate application. In the circumstances, they might have been well advised to adopt the course suggested to me by Miss Lugg, that is to adjourn the placement application (and with it the consideration of contact in accordance with sections 26 and 27 of the Adoption and Children Act 2002) to a hearing after the position of the foster carers had been resolved. The one thing they should not have done is the very thing which, unfortunately, they did, that is, to refuse to make a care order because, and only because, of their concerns about contact.
41. For these reasons, which are in essence the reasons put forward by Miss Hudson and Miss Lugg, the Justices were, in my judgment, plainly wrong in refusing to make a care order. The appeal must be allowed. In the circumstances there is no need for me to deal with any of the other matters raised by the local authority in its notice of appeal.

Disposal

42. The question then arises as to how I should dispose of matters. It is unthinkable that I should send the matter back for re-trial. No-one is suggesting that. There is no need for it. And the inevitable further delay would be massively prejudicial to K. Everyone agrees, and I agree, that I should deal with the matter myself.
43. There is, as I have said, no challenge – in my judgment there could be no sensible challenge – either to the Justices' finding that threshold is established or to their finding ruling out rehabilitation to the mother. Thus far I can, therefore, safely and appropriately proceed on the basis of the Justices' findings. I am content to do so, just as I am, in relation to those particular findings, entirely content to adopt as my own the Justices' very clear and persuasive reasons. But in relation to two matters I must, as it seems to me, reach my own conclusions. I must decide whether or not to approve the local authority's care plan and I must decide whether or not to make a care order. And in relation to those two matters I must, in the circumstances in which I find myself, come to my own conclusions, evaluating matters afresh in the light of all the information I now have available to me. I put it that way because in one important respect matters have developed somewhat since the Justices made their decision on 16 January 2007.
44. I need at this point to go back and briefly sketch in the involvement of the Permanency Panel. K's case was taken to Panel on 7 April 2006. The Panel recommended that K be placed for adoption. By the time of the hearing in November 2006, it was known that K's foster carers were putting themselves forward as adopters. Indeed, a report by a social worker in the local authority's adoption team dated 13 October 2006 had concluded that "there is a plethora of reasons to support [their] application to adopt [K] … Should no further critical information appear it is highly probable that the recommendation to the adoption panel will be to support the application." As the Justices put it: "We are aware that this couple have been assessed and supported as potential adopters for [K], although no formal matching has taken place … We know that if the care plan is approved in its present format [they] are supported by the local authority as adopters."
45. Although they acknowledged that "the formal final decision" had yet to be made, the Justices seem to have thought that the foster carers were likely to be approved, for at one point in their reasons they referred to the possibility that they would not be as "theoretical." On the other hand they were appropriately careful to point out that they were not assuming that the foster carers would be approved.
46. When the Justices adjourned the hearing on 8 December 2006, they anticipated that the Panel would come to a decision at a meeting which was to take place before the adjourned hearing. In the event the meeting was postponed because police checks had not been concluded. It was then anticipated that the Panel would reach a decision as to whether or not the foster carers should be approved as adopters for K at a meeting on 2 February 2007, in other words in time for the hearing of the appeal. In the event the Panel deferred a decision, taking the view that it had insufficient information relating to K to consider approval in respect of a named child "particularly as Panel was clear that this couple would not be approved as general prospective adopters."
47. I understand that the Panel is to be asked to approve the foster carers at a meeting on 2 March 2007. If the Panel does approve them I understand that, subject to ratification by the agency decision maker, the Panel, at the next meeting in April 2007, will be asked to approve a match between the prospective adopters and K. As the Panel cannot approve a match unless a placement order has been made by the court, and as a placement order may now not be made for a little while (see below), the Panel may be asked to consider the proposed match as an 'advice' item, that is, indicating its likely approach to a future match ahead of any formal decision.
48. Now when the case was before the Justices there had been no issue – contact apart – as to the detail of the local authority's plan for permanency. The mother was resisting the making of any care order and seeking K's rehabilitation to her, but, as I understand the shape of the dispute before the Justices, there was no challenge to the local authority's plan for adoption in the event of the mother being ruled out.
49. Subsequent events at Panel have made the mother and her advisers focus more closely than before on the appropriateness of the local authority's plan for permanency through adoption rather than permanency through long-term fostering or, perhaps, by means of a special guardianship order.
50. The issue has been brought into sharper focus because, in circumstances where there is perhaps slightly less confidence now than previously that K's foster carers will in fact be approved by the Panel as adopters for her, there is a stark discrepancy between:

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.

51. There is, I sense, a general feeling that the Panel may not find the foster carers' application entirely straightforward. Thus far, at least, the foster carers seem to have done a splendid job looking after K, who seems to have thrived in their care. But there are a number of matters, which there is no need for me to go into and which in the circumstances it is better that I do not, which, as Miss Giovannini concedes, will be of concern to the Panel. That is certainly my assumption.
52. As Miss Giovannini puts it, it cannot be guaranteed that the foster carers will be approved as adopters. She submits that if they are not approved both the local authority and the court will need to reconsider the options available. She points out that, if they are not approved, the foster carers may choose to invoke the statutory appeal procedure; or they may decide to apply in their own right for an adoption order, for a residence order or for a special guardianship order (in relation to which she helpfully referred me to Re S (A Child) [2007] EWCA Civ 54).
53. These submissions were the springboard for Miss Giovannini's fundamental proposition that, as matters currently stand, I cannot approve the local authority's care plan and that it is in any event, as she puts it, a "pointless" exercise to make a care order at this stage – there are simply, she says, too many uncertainties.
54. The answer to the question of what solution will best meet K's long term interests is by no means obvious.
55. On the one hand there is the fact that the foster carers have seemingly done a very good job with K. And if K were now to be removed from them she will, not least because of the length of time she has now been with them – much longer than would usually have been expected –, be more distressed than would normally be the case. In her report dated 27 October 2006 prepared for the purpose of the placement application, the guardian commented that if K's foster carers become her adoptive parents "her confusion and distress is likely to be less than if she is adopted by strangers." One of the experts, EL, in the course of her oral evidence said that it would be "extremely disruptive for her to move from what is essentially her primary attachment." In the light of this and other material Miss Giovannini suggests that it is in K's best interests to remain with her foster carers.
56. On the other hand, there is the fact, the implications of which were explored in some detail by the Justices, that the foster carers live very close to the mother in circumstances where there are almost bound to be chance meetings. Moreover there must be a question as to the extent to which the mother, despite her protestations, will actually be able to act in a way which does not undermine the placement, just as there must be a question as to why she is so keen that K should stay with her foster carers. None of this is necessarily to cast doubt on the mother's bona fides; it merely reflects the very difficult position in which the mother finds herself and the power of human emotions and the human sub-conscious to rule not merely the heart but also the head.
57. I am simply not in a position to decide here and now what precise form of permanency will best meet K's long-term needs. I have, after all, heard no evidence. And although I have read much of the material which was before the Justices I am not sufficiently steeped in it to come safely to a final conclusion as to what form of permanency is most appropriate for K. It may be that the local authority's plan for adoption, come what may, is appropriate. I am certainly not ruling it out, but I cannot be satisfied on all the materials before me that it is necessarily the best plan. It may be that, if this is the only way in which K can remain with her foster carers, some other form of permanency is appropriate. I am certainly not saying it is, but I cannot be satisfied that if the point is reached – of course it may never be – when the court is faced with the stark choice it will necessarily approve a plan for adoption by someone else.
58. The local authority, aware of my difficulties, has helpfully, and as it seems to me appropriately, reconsidered its care plan. Since the conclusion of the hearing of the appeal it has filed an amended care plan dated 15 February 2007, the material parts of which read as follows:

"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."

59. I have no hesitation in approving that care plan.
60. As I have already indicated, there can be no sensible challenge either to the Justices' finding that threshold is established or to their finding ruling out rehabilitation to the mother. I am entirely satisfied that, for the reasons given by the Justices, reasons which I am entirely content to adopt as my own, this is a case where threshold is plainly established and where the local authority's plan for permanency outside the birth family is the only possible plan. Thus far I am at one with the local authority.
61. I note that the local authority's plan remains for permanency by adoption with only indirect contact. For the reasons I have already explained this part of its plan is one which at present I can neither endorse nor reject. But I welcome the local authority's recognition that, whatever its own views, these are matters to be determined by the court at a future hearing. In these circumstances, and given that very clear caveat, I am entirely content to approve the care plan. Not merely can I approve the care plan. I think I ought to. Not merely is it an appropriate plan deserving endorsement. In the circumstances K desperately needs finality, or at the very least as much finality as is currently possible. I therefore approve the amended care plan.
62. Being content to approve the amended care plan there is no remaining obstacle to my making a final care order. K, as I have said, desperately needs finality. The local authority needs the certainty which only a final order can confer if it is to be able to plan concurrently for K's future. The mother will suffer no prejudice if I make a final care order because it will not preclude her pursuing in a judicial forum those matters which remain of concern to her.
63. I am satisfied in the light of everything I have read and heard, and despite everything pressed on me by Miss Giovannini, that nothing short of a care order will adequately protect K and meet her needs, just as I am satisfied that the time has now come when the court should make a final care order rather than extend the existing interim care order. Those matters which require further consideration by the court can appropriately be dealt with at the further hearing which I now turn to consider. Nor will any arguments that either the mother or the foster carers might wish to put forward be precluded or prejudiced by the fact that there will now be a care order in place.
64. I should add that if the local authority had not been prepared to modify its care plan, I would probably have declined to make an immediate care order. I would certainly have continued the existing interim care order. But in the circumstances as they presented themselves to me on 13 February 2007, and consistently with the principles set out above, I would probably have refused to approve the local authority's previous care plan and adjourned the matter to give the local authority an opportunity for further reflection. The local authority's wise and responsible decision has happily avoided all need for that further delay.

The way forward

65. Miss Hudson sensibly anticipated that, in these rather unusual circumstances, the court might well wish to know the position in relation to K's current placement before determining the placement application. Moreover, and recognising that the issue of placement has a potential bearing on the question of continuing direct contact with the birth family, she proposed that the question of contact should be fully investigated and determined at a further hearing, preferably at the same hearing as the court considers the local authority's application for a placement order. The guardian supports these proposals. Not surprisingly, none of this is opposed by the mother.
66. The mother does, however, have concerns about the local authority's proposal that EL should be instructed to undertake the necessary further investigations into the question of contact. Miss Hudson submits that of all the experts who have previously assisted the court EL is the best placed to deal with this issue. She is also, as Miss Hudson points out, open-minded about the question of post-adoption contact (see below). Mother's reservations, understandable in human terms, derive from EL's failure to support the mother's case on rehabilitation. But that is now all in the past and, importantly from mother's perspective, EL is open-minded on the question of contact. In all the circumstances I agree that EL should be invited to do this further work. She has now, as I understand it, indicated that she is willing and able to do it and, moreover, within a time-scale which is acceptable to the court.
67. Since the hearing, as I have already noted, things have further developed because the local authority's amended care plan recognises that the nature of K's permanent placement is to be determined by the court at a future hearing. I need also to record at this point the local authority's very proper and exceedingly helpful commitment to provide reasonable funding to enable K's foster carers to obtain legal advice in relation to the options open to them should they seek to provide permanent care for K.
68. In these circumstances it seems to me that in principle the appropriate way forward is for there to be a further hearing at which the court can consider (i) any application(s) made by K's foster carers, (ii) the local authority's application for a placement order and (iii) the question of future direct contact. The precise format of that hearing will need to be considered at a directions hearing to be listed within the near future once it is known (a) what decision(s) the Permanency Panel has come to and (b) what application(s), if any, the foster carers are proposing to make.
69. I think everyone is agreed that, given their potential ambit, these further proceedings should be transferred from the family proceedings court to the High Court. That involves no criticism of the Justices. It merely reflects the burgeoning complexities.

Interim contact

70. The local authority considers that contact should in any event be reduced at this stage in line with the plan of permanency. Hitherto, contact has been taking place weekly, having been reduced from the twice-weekly contact that had been taking place prior to the hearing before the Justices. The local authority proposes that contact should be further reduced over the forthcoming weeks to fortnightly and then monthly. Miss Hudson makes the important point that this will not merely prepare K for the future, it will also give an opportunity to assess the response of the birth family to the plan of permanency actually being put into effect. The mother, bravely and wisely, recognises the wisdom of this and does not oppose the planned reduction in contact. I agree with the local authority's proposals.

Conclusion

71. The local authority's appeal against the decision and order of the family proceedings court dated 16 January 2007 is allowed. I set aside the order of the family proceedings court. Subject to the qualification I have mentioned, I approve the local authority's amended care plan dated 15 February 2007. I make a final care order.
72. I will hear counsel further on the precise terms of the order.

A final point

73. There is one final, important, matter I must mention. The case, as I have said, came before the Permanency Panel on 2 February 2007. The corrected and approved minutes of the meeting contain these passages:

"[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."

74. Miss Giovannini on behalf of the mother asserts, and Miss Hudson on behalf of the local authority accepts, that in two, as it seems to me vitally important, respects, this account is in the one case misleading and in the other simply wrong:

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.

75. It is a matter of very great concern that the minutes should be so mis-leading, indeed wrong, on matters of such central importance. I do not know how these errors have crept in. It is, I suppose, possible that the Panel was given the wrong information by the local authority, or that Panel misunderstood what it was being told, or that the minute-taker misunderstood matters. It does not really matter. The simple fact is that the minutes mis-record vital information. So long as they stand uncorrected, the minutes are a seemingly definitive source of potentially serious misunderstanding and confusion.
76. I draw attention to this matter for two quite separate reasons. First, it is obviously vital that the Panel's seeming misunderstanding is corrected at the earliest opportunity. Otherwise there is real risk of a serious injustice being done to both K and her mother. It is properly accepted by the local authority that appropriate corrections should be spelt out in my order, a copy of which should be supplied to the Panel. I am minded to think, in the circumstances, that the Panel should also be supplied not merely with a copy of this judgment (something to which, as I understand it, no-one has any objection) but also with copies of the Justices' reasons (something which the mother would want but which the local authority does not favour). This latter point can be considered further, if need be, once everyone has had an opportunity to consider this judgment. (In the event everyone agreed that the Panel should see not merely this judgment but also the Justices' reasons.)
77. Secondly, however, I sense that there may be a systemic problem here which, if my fears are justified, requires urgent consideration. I appreciate that the Panel is independent of the local authority and that I have had only limited explanations of how the mistake seems to have been made, but it would seem that the fundamental cause of the problem is that Panel – I can only assume in accordance with its usual practice – obtained this information from what it was told by the local authority representative(s) and without the Panel itself being shown and looking at the relevant documents. (I note in passing that neither of these mistakes would probably have occurred if the Panel had been able to read the Justices' reasons. The Justices were critical of the local authority for having required all contact to be supervised, commenting that "As time progressed there was no evidence of this mother presenting a high level of risk to her daughter in the short time of an unsupervised contact visit". And the Justices' reasons also recorded, accurately, that EL's report had "contemplated [direct contact] as a possibility".)
78. This is not the first occasion that similar problems have come to my attention. I had occasion recently to comment on deficiencies in the practice adopted by a local authority's placement panel where significant problems had been caused in part by the panel's practice of reaching decisions on the basis of a largely oral presentation and without itself reading key documents: see Re X, Barnet London Borough Council v Y and X [2006] 2 FLR 998 at paras [36], [56], [101]-[103] and [114].