England and Wales High Court (Family Division) Decisions

IMPORTANT NOTICE

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.

 

IN THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION	No. UO11C0008

First Avenue House

42-49 High Holborn, WC1

Thursday, 5^th December 2013

 

 

 

 

 

Before:

 

HER HONOUR JUDGE LAURA HARRIS

(In private)

 

 

B E T W E E N :

 

                                                       LONDON BOROUGH OF BD                                        Applicant

 

 -  and  -

 

 

                                                                                                                                              (1)POA                                                      Respondents

 

                                                                                                                                              (2) FA

 

                                                                                                                                              (3) AM

_________

 

 

Transcribed by BEVERLEY F. NUNNERY & CO

Official Court Reporters and Audio Transcribers

One Quality Court, Chancery Lane, London WC2A 1HR

Tel:  020 7831 5627     Fax:  020 7831 7737

info@beverleynunnery.com

 

_________

 

 

MR. G. BAIN (instructed by the Legal Services Department) appeared on behalf of the Applicant.

 

MR. O. MILLINGTON (instructed by) appeared on behalf of the 1^st Respondent.

 

MS. R. DAFFA (instructed by) appeared on behalf of the 2^nd Respondent.

 

MS. K. CROXFORD (instructed by) appeared on behalf of the 3^rd Respondent.

 

_________

 

 

APPROVED J U D G M E N T

JUDGE LAURA HARRIS:

 

1              I am dealing today with what is effectively a part-heard hearing of the final hearing of these care order applications made by the London Borough of BD in relation to four children.  They are JA, who was born on 24^th August 2004, so that she is 9; JAA, born on 14^th March 2006, aged 7; FA, born on 10^th March 2008, aged 5; and EM, born on 9^th November 2010 and therefore aged 3.

 

2              These care proceedings have lasted for two and a half years.  I conducted a hearing over several days in July of this year and gave an extensive judgment on 1^st August.  I was not able to conclude the proceedings for a number of reasons, but I made the decision in principle that neither the mother nor FA, the father of the three older children, were in a position to provide long-term for their children.  The question of those three children’s placement in long-term foster care could not be concluded because the guardian and I both took the view that there were concerns about the suitability of the placement in which the children had been living since January of this year and there were still enquiries needed to be made to see whether the children could return to their previous foster placement with a couple, and I am going to refer to them by their first names, called T and S.  In relation to EM, whilst the care plan at the beginning of the final hearing was for him to be placed with his father, AM, under a supervision order, certain matters emerged in evidence so that the local authority, with the agreement of the guardian and with my agreement, took the view that further discussions and  investigations needed to take place before they could sanction that particular plan.  The matter has been back to court on two occasions since then.  On each of those occasions I had hoped to be able to finalise the care orders, for the three older children.  For reasons that I will describe, that was not possible.  In relation to EM, his future was always going to be decided at this particular hearing.

 

3              At the commencement of this hearing the local authority confirmed that it was, in fact, their care plan that the three older children could return to T and S.  That was very much a last-minute change of plan because the evidence right up until the day of the hearing was that the children should remain where they were.  There was a statement prepared a couple of days before the hearing by Ms. T which indicated that the children could move to T and S, but I did not see that until the day of the hearing.  I do not know when the other parties saw it.  In relation to EM, I had already formed a strong provisional view, having read the papers, that the local authority had not made out its case for a placement order with a care plan for adoption, and in that I was supported by the guardian.  The local authority was able to reconsider and yesterday morning I was told by Mr. Bain on their behalf that the agency decision maker had reviewed the position and that the local authority was supportive of EM being rehabilitated to AM, his father, with a supervision order to be held by IT.  Therefore, this hearing has not been a fully contested hearing in any way.  No evidence has been given and there are some less significant, although nevertheless important, decisions that I need to make about contact.

 

4              I indicated yesterday that I considered that there was a public interest in my judgments being published, suitably anonymised, and I made reference to the very clear view of the President that a central plank of the reforms to the family justice system was transparency.  I indicated that there is currently for discussion and comment a draft practice guidance document on transparency, which will be issued in the fullness of time, which made it clear that publication of judgments suitably anonymised will in the future be a far more common occurrence.  The guardian had already indicated that there should be, in her view, limited disclosure to relevant officers of the council and to Ofsted, but I took the view that it was appropriate to publish more widely.  The public should know what is being done in their name in these courts and should know if a local authority is responsible for poor practice, if that be the case, and what is being done about that.  In the end, very properly, Mr. Bain, on behalf of the local authority, did not oppose publication with suitable anonymisation and neither did any of the other parties.  The guardian, as I understood it, supported it.  So I am going to give a judgment summarising what I see as the course of events since 1^st August 2013 when I gave my first judgment.  It will incorporate the matters I referred to in a short ex tempore judgment that I gave on 1^st October 2013 and a number of matters the guardian raises in her very helpful final report which she considered constituted poor practice.

 

5              The care plans before me are now agreed, subject to the issue of the mother’s contact to EM, and it is agreed that BD should be the designated authority under the supervision order that required their agreement.  I accept entirely that their approach on this was child focused because, plainly, there would be delay and possible further court hearings if the London Borough of H, which is the authority where the father AM lives, were brought in, and they would have to agree the care plan and matters of that sort.  So I do take that gesture in the spirit in which it is offered as being one which is child centred, and I agree that BD should be the designated authority given the long dealings they have had with this case and their knowledge of the personalities.

 

6              I am going to deal, first of all, with the issue of contact.  The father, AM, supported by the local authority and the guardian, takes the view that contact between the mother and EM should reduce from its current level of monthly to six times a year.  That should be outside of the mother’s contact to the three other children whom she is seeing monthly, and it is proposed that monthly plan should continue.  The mother seeks that the status quo remain, that it is monthly with at least some of the visits being with all the children together, and I will deal with that issue first of all.  The local authority submits that six times a year is appropriate.  The position is that EM has spent virtually the whole of his young life in foster care.  He has never lived with his father and his father is going to be faced with a significant challenge in settling and providing stable and secure care for this young boy.  The father has not, in fact, as I understand it, ever cared for any child full time, which will add to the challenge.

 

7              The father feels that six times a year is the right level, and the local authority places great weight on his views as the prospective full-time carer.  They stress that under the supervision order contact will be reviewed in line with child in need meetings on a six-weekly basis and that greater frequency can be looked at in future if appropriate.  It refers to the very difficult and volatile background of the relationship between the mother and AM, which I refer to in my judgment as a background factor because it is right to say that in more recent times there has not been this difficulty.  The last incident was probably about 18 months ago and the parents have been able to communicate over issues of EM’s welfare.  The father’s position is that he needs to have a period of settling in for his young son and that he needs to be able to devote all his efforts to that and not be distracted by other things.  He, too, refers to the background of the volatile relationship between the parents and that how the mother will actually react when EM is in his care is something of an unknown quantity, but he, too, accepts that the position may change in the future.  The father also says that supervision will in due course be taken over by part of his support network and it is far more onerous to find someone to be able to supervise contact on a monthly basis than it is for six times a year.  The guardian supports the submissions made by others.

 

8              The mother’s position is that she has already suffered a drastic reduction in her contact with EM because prior to the 1^st August contact was three times a week.  It had been four times a week.  This was all part of a planned rehabilitation to the mother and monthly contact represented, obviously, a significant reduction, and this would be a further 50% reduction.  The mother draws attention to the fact that the contact has been positive since my decision in August - there have been no difficulties about it - and that it would be wrong in principle to treat EM differently from his other half-siblings and indeed that it would be a strange situation for children in foster care to have a higher level of contact than a child in a family placement.  Mr. Millington refers to the fact that the difficulties between the parents are now historical, that the mother has been able to support the placement with the father - indeed, she put it forward as an option in the hearing in July - that she has not undermined the foster carers of any of the children and she will not undermine the father either.

 

9              I should mention that sibling contact is proposed to be at least six times a year between EM and his half-siblings so that AM will be responsible also for facilitating that.  EM’s welfare is my paramount consideration and, in my judgment, the priority now is to effect the best possible transition from his foster carer to his father.  The father should have no distractions from what will, I consider, be a challenging task for him in getting EM settled and into a completely new way of life.  He feels comfortable and would not feel comfortable, by implication, if contact was more than he has suggested.  He is also, as I have said, going to have to facilitate meaningful contact with the siblings.  I take the view that the priority is to settle EM.  To achieve that, his father must have no distractions and must feel comfortable with the level of contact proposed.  Otherwise, the change of placement could be put under strain, which can be avoided.  I consider that six times a year would enable EM to maintain a meaningful relationship with his mother.  It is also extremely important he maintains a good and close relationship to his siblings.  It seems to me, having regard to that priority, that at least for the time being, to enable this transition to go as well as it can and to enable EM to make his attachment with his father as his primary carer, that the proposal put forward by the father and supported by the local authority and the guardian is the right one.  I take into account the points made by Mr. Millington as to distinguishing between the children, but the older children’s life course and that of EM are very different and therefore any order must reflect those differences.  This situation will be regularly reviewed and the mother can take hope in the fact that it may be further down the line that her contact can be increased.  So that is my decision in relation to contact.

 

10         Turning to the wider picture, all that I say is not to be taken as other than constructive criticism of the local authority.  I appreciate the difficulties under which social workers labour and it is not part of my intention to make their job more difficult but rather, having been heavily involved with this case, to make what I hope are constructive comments.  None of them should detract from what has been a very positive outcome at this final hearing, with there being a complete agreement on the plans for these four children.

 

11         Firstly, I am afraid that I share the views of Ms. Smith, the guardian, that despite quite trenchant criticisms made by me of the local authority’s practice in my judgment of 1^st August the practice has not improved in the period since, and I will seek to explain why I say that in this short judgment. 

 

12         The first matter I want to refer to is professional working.  In my judgment, there should be respectful and collaborative working between all child care professionals and, in particular, between the local authority and the guardian.  Inevitably, there will, on occasions, be disagreements between them, but each should respect the other’s views and the reasons for their disagreement.  I am concerned in this case that when the guardian has criticised the local authority or taken a different view her views have not been treated with the respect to which they are entitled.  Indeed, the guardian has the perception that the local authority has sought to discredit her.  I am not sure at all whether that is a deliberate intention, although I can understand why she should feel that is the case.  I said I was going to concentrate on matters post 1^st August, but there is an element of history repeating itself here because the guardian made an urgent referral to the local authority after the children made allegations of serious physical abuse to her on 1^st January of this year.  That was never followed up and the local authority was actually seeking to deny that she had made the referral.

 

13         Since the July hearing, there has been an issue about the older children’s wishes and feelings.  The guardian reported in that hearing the children’s wishes and feelings to go back to S and T in her final report prepared for that hearing.  The local authority in submissions before me on 1^st October was seeking to suggest that she had not seen the children since January of this year.  I expressed some incredulity at that submission because they only had to read her report to see that she had seen them on 13^th July during their contact with FA.  She has sought to obtain documentary proof of this since by securing the contact note for that contact with no success.  But it highlights how undermined she must have felt that when she saw the children again more recently in the middle of last month at their schools she felt obliged to have the assistant headteacher present with her, firstly, so there could be no issue as to whether she was there and, secondly, so that there could be a witness to what the children said to her.  This is plainly a wholly unacceptable state of affairs that the court appointed guardian should feel it necessary to go to those lengths.  Further, although she obtained the court’s approval to speaking to T and S over the question of financial assistance to help them with adjustments to their home to enable them to accommodate the three older children, there was a suggestion in the statement of Ms. T, the group manager who has prepared two statements before me, that S and T felt uncomfortable and that she was overstepping the boundaries, so, therefore, another  criticism of the guardian.

 

14         There has also been very poor communication with the guardian.  She was not told when the children were moved from T and S and history has repeated itself because she was not told that the older children were having to move to a respite carer in the period leading up to this final hearing.  She was, as part of her role, going to investigate alternative foster care placements suggested by the local authority when it looked like the placement with T and S could not go ahead.  She asked in an email for details of any proposed foster care placement.  Ms. R, the social worker, accepts that that information was never supplied, but to compound the error in her recent statement Ms. R says that the other alternative foster placements were not pursued because they had not been supported by the guardian.  That assertion was plainly factually incorrect because the guardian, having not been provided with the requisite information, had not been able to investigate any alternative foster placements.  Indeed, Ms. T’s statement made the same point that, because the guardian and the court did not support them, they could not be followed up.  As I have said, that is not a correct factual analysis of the situation.  Therefore, I hope that the local authority will take on board what I said at the beginning of this passage of my judgment that there must be respectful and collaborative working between the professionals, even when they do not agree with each other.  I consider  it is really a very poor show indeed that this guardian feels that she has been accused, effectively, of being less than honest, and nothing could be further from the truth.

 

15         I turn now to the question of professional practice more generally.  I made comment in my earlier judgment about the poor quality of much of the social work evidence.  That situation has not improved.  The recent statements of Ms. R prepared for this hearing, in my judgment, contain little by way of content and even less by way of analysis.  In particular, there is no B-S analysis of the pros and cons of the different courses proposed for EM, and that alone would probably have made the application for a placement order fatally flawed.  In any event, on the facts, it was plainly not an application which was, in my view, ever destined to succeed.  If Ms. R was not aware of the need for that sort of analysis, that should have been picked up by the legal department or by whomever reviews her statements.  The Court of Appeal in the case of B-S itself, reported at [2013] EWCA Civ 1146, makes it absolutely clear that the evidence put forward by a local authority in support of a placement application must be rigorous, well argued and contain a detailed forensic analysis of the pros and cons of the different options.  That point has been made by the Court of Appeal in a number of judgments which were given over the course of the summer.  Everyone should be aware of that requirement.

 

16         Further, the local authority on 1^st October made very strong representations to me that I should conclude the care proceedings for the three older children, even though the long-term plan was for them to remain in a placement, which I had considered, together with the guardian and indeed some of the court appointed experts, was a placement which did not meet their long-term needs.  The guardian also makes the point that there was no evidence before the court that the three older children had, in fact, been matched by the relevant panel within the local authority with their current carers as long-term carers and, certainly, I have seen no evidence to suggest that they had.

 

 

17         One is drawn to the conclusion that there was an element of expediency in all this at the expense of the children’s welfare, and that comes on top of a situation where I had found in my August judgment that the children, having had six foster placements, some of which were wholly unsatisfactory, had suffered further harm in the care of this local authority.  So, in a sense, one could say that it was adding insult to injury.  Indeed, I was asked in terms to give a formal judgment, but my decision was not to conclude the proceedings with a suggestion by the local authority that the matter may be taken further.

 

18           There has also been a late filing of evidence, meaning that the guardian’s report was delayed.  Despite this having been referred to on a number of occasions during the hearing in different courts, nothing has been done over these two and a half years to regularise the immigration status of the three older children. 

 

 

19         I am going on now to consider the actual contents of the evidence put before me since 1^st August in the local authority documents.  Firstly, the local authority  itself, in evidence filed before the final hearing in July, was the one that raised the question of adjustments being made to T and S’s property to enable it to accommodate the three older children.  As I have said, that was then followed up by the guardian.  The hearing on 13^th September, which was the first proposed final hearing of the older children’s case, was adjourned because the position concerning S and T’s accommodation had not been finalised and I asked for further evidence dealing with that situation.  The matter came before me on 1^st October when I had a statement from Ms. T, the group manager, before me.  That statement contained some very troubling revelations.  She indicated that the placement was not going to be feasible for a number of reasons.

 

20         When I make these observations, I need to be clear that the principal purpose of the hearing being adjourned, and indeed there is a preamble in the order of 13^th September to that effect, was so that the question of the financial arrangements with S and T to facilitate the building works could be clarified and that that was the main purpose of the adjournment.  As I have said, in her statement she puts up a number of barriers to that placement.  The first, which she said was the most significant, was that another child, NO, had been placed with T and S as a long-term foster placement.  The clear impression I was given on 1^st October was that this placement had been approved as a long-term placement.  I expressed my astonishment at this development given that the purpose of the adjournment was principally to consider whether the placement with T and S could go ahead and was now being told that the placement there of another child was the most significant obstacle to that taking place.  I indicated that I considered that was flying in the face of my court order or, at the very least, that the left hand did not know what the right hand was doing.  I received no satisfactory explanation and asked in the order I made on 1^st October for full details of when the placement was made and when the decision was taken that it should be a long-term placement.  That part of my order was never complied with and I never received any statement dealing with that issue.  In the event, the guardian tells me, having spoken to T, that it had not been confirmed as a long-term placement and that there would have to be placement for a period of time before T and S and NO could be formally matched.  So the position as represented to me was not, in any event, accurate.  That was the first matter with which I was confronted on 1^st October.

 

21         The second matter was the impact of a further move of the children.  I was told that the current placement was now a satisfactory placement, that the children were doing well across the board and that the placement had the support of the IRO, who had taken a particular interest in the case, as well as the mother.  I was told that the children had expressed to Ms. R that they were happy to stay in the placement, although they also expressed a desire to go to T and S.  In effect, they were saying that they would be content with either placement.  That was investigated further. It turned out that the IRO had never spoken to the children about their wishes and feelings.  She had simply received information from others and when she did speak to them and quite unusually filed a statement, it was made clear to her that the children did wish to go and live with S and T.

 

22         Further, the guardian in her investigations raised further issues of concern about the ability of the current foster carers to meet the emotional needs of the children.  I am not going to go into the matters in her report.  They are clearly set out there.  When the children spoke to anyone other than the social worker, namely, to the guardian and to the IRO, they made it abundantly clear they wished to move to S and T. The guardian expressed her concern as to whether it was to support the local authority’s current care plan that the children’s views were being put across in that way.  I cannot say and would not say that Ms. R has distorted the children’s views, but it does remain of a concern that when they had spoken to anyone outside of the social worker they have expressed a clear wish, and in the guardian’s case a wholly consistent wish over many months, to return to S and T.  So much for their wishes and feelings.

 

23         Then Ms. T raised the issue of impact on the A children of sharing a permanent placement with S and T’s own daughter.  She said that S and T had historically not wanted to offer a long-term placement to FA because of the  proximity  in age to their own daughter.  When the guardian spoke to T at the end of October, she made it clear that that was not the case.  She said that she had been told initially that the plan for FA was adoption, and that is factually correct, and that once she had become aware that all three children were potentially to be placed with her she had never expressed any opposition.  The guardian, in her report, states that this is a misstatement from an earlier social work report which has somehow become fact.

 

24         Then the next obstacle put forward was the length of time before the children could move to T and S given that no building work had been commissioned and that a move could take up to a further six months.  The guardian makes the trenchant point that if the local authority had dealt with this matter properly and expeditiously from the off that the works would already have been completed and the children could have been in placement already and, further, that the six months seems to be a gross overestimate.  Then it was suggested that this would set a dangerous precedent for the local authority in terms of other foster carers seeking similar assistance.  The short answer to that point is, if that was a concern, why on earth was the local authority proposing this particular course of action back in July?

 

25         The final obstacle put forward was that the financial arrangements which would need to be set in place to provide financial support for the adjustments would be unprecedented for the local authority, would require numerous bureaucratic steps and would not necessarily even be approved.  The point I raised at that hearing was the obvious one.  If there were those complications, then why on earth were they not raised when this issue of financial assistance was first mooted by the local authority itself in July of this year?  In the event, despite what was said there, financial arrangements have now been approved without particular delay, and I have not been told of any enormous complications.  So I am afraid that the view with which I am left is that the local authority was tailoring its case to meet the outcome it wanted, namely, that the children were to remain in their current placement.  Given, as I have said, the harm that they have suffered in previous foster placements, together with the evidence I received about the unsuitability of this placement, that really was a very poor state of affairs.

 

26         Fortunately for these children, they have had the benefit of a guardian who has been both tenacious and child focused.  In the earlier judgment that I gave, I made the point that she was the only professional who had kept her eye on the ball throughout and who had and has continued to have these children’s welfare as her primary focus.  If it were not for this guardian and her tenacity in pursuing her view and indeed my view of the children’s best interests, these difficulties may never have been able to be resolved, and I have to applaud this guardian for the work she has done, work not made easier by the matters to which I have referred earlier in this judgment.

 

27         I am told that the local authority do take my concerns extremely seriously and, in response to a direction I gave that I wanted to have a report from the director responding to the concerns I raised in my judgment in August, that a senior barrister has been engaged to report on my observations, to make recommendations where appropriate and to advise the local authority on better practice.  I have been provided with the interim conclusions of that assessor and I accept that the local authority is taking my concerns seriously and, indeed, is obtaining this report at some financial cost to itself.  Part of the reason, although not the major reason, for giving this further judgment is so that the assessor can consider also all the events which have occurred since 1^st August, where, as I have said, my clear view is that practice has not improved despite all that I have said in my judgment in August.  I have, I hope, set out as fully as I can the reasons why I have formed that conclusion.  I hope for the sake of other children that the sort of practice which has been a feature of this case will not occur in the future.

 

28         I am delighted that these children, two and a half years down the road, have finally got to a destination where the court considers that the care plans are the ones which are in their best interests.  I wish the father,  AM, all success in bringing up his young son.  I consider, despite the difficulties along the way and some unwise statements by him, that he has shown great commitment to his son, and I hope and believe that that commitment will continue for the many years that he has looking after EM before him.  I also applaud the commitment of the mother and FA, who have maintained contact to their children over a long period.  I consider that they too, plainly, have an important ongoing role to play in the lives of their three children.

 

29         As I have said, I give permission for this judgment to be published.  I will ask the local authority when they have obtained a transcript to anonymise it suitably and then for it to be passed to me for my approval and, similarly, to anonymise the judgment of 1^st August.  I consider, for completeness’ sake, although the judgment of 1^st October was given very much off the hoof as I was requested in strong terms to give a judgment, that that should also be published, and again I will ask the local authority to anonymise it and to provide it for my approval.  I will ask the local authority to bear the costs of transcription of this judgment.

 

30         So I make a residence order in favour of AM.  I make a supervision order for one year to the local authority.  I make final care orders in relation to the three older children, JA, JAA and FA.  I do not need to make any contact order.

__________