NS-H v Kingston Upon Hull City Council & Anor

This unusual case demonstrates that it will occasionally be proper for the court to grant a parent leave to apply to revoke a placement order under s.24(2)(a) of the Adoption and Children Act 2002 (“the Act”) notwithstanding the absence at present of any real prospect that a court would find it to be in the interests of the child to return to live with the parent.

The child is a boy, T, who was born on 7 April 2004 and so is now aged four. He failed to thrive in the home of his parents. When in June 2006, i.e. at age two years and two months, he was removed from their home and taken into foster care, he weighed 8.84kg (19lb 7oz). He has remained in foster care to date. But, at the time of the hearing before His Honour Judge Jack, sitting as a Judge of the Family Division in Hull, on 28 February 2008, i.e. when T was aged three years and 11 months, he weighed only 10kg (22lb). During his 21 months in foster care his highest weight, recorded in November 2007, was only 10.4kg (22lb 14oz). I need say no more in order to explain the grave concern in relation to T which exists on the part of Hull City Council (“Hull”), of his parents, of his foster carers, of the doctors who have sought to treat him, of Judge Jack and of the members of this court.

On 3 October 2007 Judge Jack had granted to Hull, who hold a full care order in relation to T, a placement order authorising them to place him for adoption. The first of the mother’s two applications before the judge on 28 February 2008 was under s.24(2)(a) of the Act for leave to apply for revocation of the placement order. The father, who lives with the mother, supported the application. Hull opposed it. By a reserved written judgment handed down at a hearing on 5 March 2008, the judge refused the mother’s first application.

The mother’s second application was that the judge should make T a ward of the court or otherwise exercise the High Court’s inherent jurisdiction by directing that further, specified medical examinations and appraisals of him be undertaken as a matter of urgency. Again the father supported it and Hull opposed it. By the same judgment, the judge also refused the mother’s second application.

Unusually but in the circumstances very properly, the judge granted permission to the mother to appeal. On 2 May 2008 we heard the appeal. It was supported by the father but opposed by Hull. Miss Parker QC on behalf of the mother conceded at the outset that her appeal against the refusal of the second application raised difficult issues of principle. In response to our enquiry she also stated that, were she to succeed in her appeal against the refusal of the first application, she would have no need to press the appeal against the refusal of the second application. So we shelved the latter and heard argument from all sides on the former. We thereupon decided that the judge had erred in not giving leave to the mother to apply for revocation of the placement order and thus that we should allow the appeal in that respect and give her leave. Although we considered that our judgments on the point would be better if they were reserved and written, we were so conscious of the urgency of T’s situation that we announced our decision at the end of the hearing. Upon the mother’s undertaking to us forthwith to issue the application for revocation for which we were giving leave, we also arranged that a hearing for directions in relation to it be conducted by Charles J. (who was returning to sit in the Family Division, Principal Registry) on 9 May 2008.

I will therefore explain why I, for my part, concluded that the judge should have given the mother leave to apply for revocation of the placement order. Although we did not hear oral argument on the appeal against the refusal of the second application, we read the excellent skeleton arguments upon it filed on behalf of all three parties. In a postscript to this judgment I will append brief comments, for what they are worth, about that part of the appeal.

The parents, who live together, have three children. They are two girls, aged 7 and 5, and T. The girls live with the parents under a supervision order; and Hull have no plans to seek to remove them. The parents are not married but the father has parental responsibility for all three children.

By January 2005, when he was only nine months old, T’s condition was causing professional concern. He had been feeding poorly and suffering chest infections so he was then admitted to hospital for several days, was fed by a naso-gastric tube and gained in weight. Later that year there were two further admissions which gave rise to similar, albeit temporary, gain. In December 2005 T was referred to a Failure to Thrive Clinic in Leeds administered by Dr Hobbs, a consultant paediatrician. In May 2006 Dr Hobbs took the drastic step of discharging T, not because he was better but because Dr Hobbs considered that the mother was refusing to cooperate in his plan for T’s treatment. Dr Hobbs may well thereby have precipitated Hull’s application for a care order. It was issued on 2 June 2006, led to T’s removal from home under an interim care order on 9 June 2006 and came to be heard by Judge Jack on a substantive basis in May 2007. By the beginning of that hearing Hull’s care plan had become that T should be adopted. The hearing proceeded for eight days, whereupon the parents withdrew their opposition to Hull’s application. Thus, on 15 May 2007, the judge approved the care plan and, by consent, made the care order.

During the eleven months between the issue of the application for a care order and the substantive hearing a mass of evidence, including professional evidence, both paediatric, psychiatric and psychological, had been assembled in furtherance of the complex enquiry into why T had so seriously failed to thrive in the home of the parents; and no doubt the enquiry required attention to be given to his continuing failure to thrive in foster care. During the eight days of hearing for which the application remained contested the judge read all the written evidence and heard substantial oral evidence. In the event, however, there was no need for him to give judgment. At the hearing of the appeal Mr Cobb QC on behalf of Hull observed that it would have been of value for us to have had some summary of that evidence by the judge. When, as a judge of the Division, I found myself in such circumstances, I usually gave a short judgment in which I described the stage which the proceedings had reached and how they had reached it and in which, while taking care to say nothing still controversial, I briefly referred to some of the important evidence which seemed to demonstrate the suitability for the child of the agreed terms.

What is clear, however, is that a strenuous attempt on the part of the parents in the care proceedings to establish that T’s failure to thrive in their home had had, or might well have had, an organic cause failed to collect professional support, even from their own paediatric expert. Dr Hobbs gave damning evidence that T had no organic problem and that the conjunction of the mother’s own past eating disorder and of her defective attachment to T had led to her gross mishandling of his feeding. There was also substantial evidence that she had not cooperated with professional attempts to address the problem. Indeed Mr Cobb told us that all the experts agreed that T had suffered profound psychological maltreatment at the hands of the mother. In his judgment dated 5 March 2008 the judge recalled that in his oral evidence in May 2007 Dr Hobbs had observed that T’s behaviour patterns in relation to feeding were very entrenched and, no doubt in the light of the grave continuation of the problems until that date, that the suitability of the second short-term foster home, to which T had moved in October 2006, might need review. Such was the gist of the evidence which, on the eighth day of the hearing, led the mother, in her revised written response to Hull’s threshold document, to accept that T had “suffered significant physical and emotional harm and neglect evidenced by his psychosocial failure to thrive and his significant attachment difficulties with [her]”.

The care plan provided that the parents and the girls should continue to have supervised contact with T once a month until he was placed for adoption. In that he has not been so placed, contact has continued to date; and it has been satisfactory.

At the hearing before us no one could remember whether the parents actively consented to the placement order made by the judge on 3 October 2007. But, even if they did not give their consent, they did not actively oppose Hull’s request that the judge should dispense with it.

By the summer 2007, however, Hull had become increasingly worried about T’s continuing failure to thrive, starkly demonstrated by the absence of gain in his weight. In July 2007 Dr Hobbs had measured his weight as below the 0.4 centile and his height as between the 0.4 and the 2.0 centiles. By letter to Hull dated 8 October 2007 he wrote that:

“[T] presents as a very thin, severely underweight, very worrying child. He has now almost been in this foster home for a year and sadly has not made very much progress in terms of his growth and nutrition. I think it would be appropriate to review this placement.”

At first Hull seem to have been persuaded to look urgently for an alternative foster home. Such was the recommendation of their Looked After Child review on 18 October 2007. At a professionals’ meeting on 25 October 2007 the allocated worker pointed out that the care plan, endorsed again by the judge days earlier when making the placement order, was for an adoptive placement. Importantly for present purposes, however, the area manager of the permanence team responded, in the words of the minutes, that:

“due to the lack of prognosis in terms of [T’s] health, it will be very difficult to find such a placement.”

Equally important is a conversation between the parents and the allocated social worker on 2 November 2007 in which, according to the latter’s note, she informed them that:

“no plan of adoption would be pursued until [T] is thriving and no one knows how long that would be.”

The note records the father’s enquiry whether, were the mother to undertake psychotherapy, Hull might consider returning T to them. The parents contend, not inconsistently with the social worker’s note, that in response she gave the impression that Hull would consider all options, including his return to them.

On 6 November 2007 six of Hull’s social workers went to Leeds in order to discuss T with Dr Hobbs. They reported to him that there was an important critic of his advice to move T urgently from his foster home, namely a psychologist at CAMHS who had been working with T and the foster mother for four months. Again importantly, they reiterated to Dr Hobbs that, in the words of the minutes:

“the plan of adoption for [T] is no longer being pursued until he can thrive, as it would be unfair to any prospective adopters, [T] being placed with them and then being told that the placement is not the right one.”

A new idea was suggested, namely that a home might be found for T with foster parents who, if all went well, might in due course be prepared to adopt him. Such quickly became Hull’s plan. As a result of the meeting with the social worker on 2 November 2007, the mother had become so concerned about T and the uncertainty surrounding his future that she had re-instructed her solicitors, Williamsons, who began, by letters, to make pertinent enquiries of Hull. By their first letter in response, dated 19 November 2007, Hull told them that their plan was to identify a fostering placement with a view to adoption. Unfortunately four further letters from Williamsons between 22 November and 18 December 2007 went unanswered by Hull until 7 January 2008. Such was an unacceptable delay; and Hull’s Legal Services Department needs to review its procedures for responding to letters.

At a professionals’ meeting on 27 November 2007 Hull firmly endorsed the plan to find a foster placement for T with a view to adoption. The psychologist at CAMHS expressed surprise that Dr Hobbs was not intervening medically in order to achieve a gain in T’s weight. Four days earlier Dr Hobbs had seen T, had assessed his weight as below the 0.4 centile and his height as upon that centile and had stressed the need for him to be moved. In December 2007 Hull explained to Dr Hobbs by letter that they proposed to leave T with his present foster carers until a foster placement with a view to adoption had been found and they enquired why he was disinclined to intervene medically. Dr Hobbs responded by letter that a new placement was urgent and that he had no enthusiasm for medical intervention, whether for example by admitting T to hospital or even by prescribing food supplements.

Dr Hobbs saw T again on 18 January 2008. T had lost 0.1kg (4oz) in weight since 23 November 2007. By letter dated 21 January 2008, Dr Hobbs wrote to Hull in no doubt deliberately startling terms, as follows:

“[T] … looks an emaciated … pale, grey, little boy and I remain extremely concerned about him.

I remain very concerned that the Local Authority has left him in his current placement, where he is clearly not thriving and has not thrived for the past 15 months. I do feel that [T] needs to be moved to a more appropriate home, who can better meet his needs.

I understand from the social worker that this is the plan but I think a greater degree of urgency needs to be injected into the situation. I do not think there is anything else that we can offer with the current carer and I have decided, therefore, not to offer any further appointments at the present time.

[T], however, does remain a patient under my care in terms of his failure to thrive and I would be happy to see him again if the situation regarding his current care changes …”

The mother issued her application for leave to revoke the placement order on 15 January 2008 and her application to the High Court to make T a ward and otherwise under its inherent jurisdiction on 5 February 2008.

In retrospect there must be doubt whether Hull’s plan to seek a foster home for T with a view to adoption was apt to the seriousness of his situation. It would have been hard enough to find a foster home equipped to meet the unusual demands which his condition made; but to add to such a specification a requirement that the foster parents, for many of whom their care of children on behalf of local authorities is an important part of their livelihood, should in principle be amenable to adoption was surely to reduce the pool of candidates much further. At all events in mid-February 2008, after three months, the plan was replaced by one which provided for T’s move to a foster home on the basis that, if his failure to thrive could there be remedied, he would then be moved to an adoptive home; and an appropriate foster home was then found. Unfortunately the judge does not seem to have realised that the plan had thus changed; it was certainly not clearly explained in the skeleton argument with which Hull had furnished him. Like the psychologist at CAMHS, the parents are strongly opposed to T’s move to another foster placement, at any rate until after fresh medical appraisals of his problems have been undertaken; but Hull respond that T’s condition requires such a move at once. Pending the judge’s hearing of the mother’s applications and then pending her appeal Hull acceded to her request not to effect the move. Whether they will now seek to effect it and, if so, whether the parents can do anything to prevent it both remain to be seen. Since the proposed placement is not for adoption, s.24(5) of the Act does not preclude Hull from effecting it without leave pending determination of the application for revocation which we have enabled the mother to make.

Hull say that they are agreeable to a fresh medical appraisal of T. But, according to the parents, their proposal is inadequate. Hull propose submission of the relevant documents to another local consultant paediatrician on the basis that, were she to wish to examine T, they would arrange for her to do so. The parents seek a much wider enquiry. They argue that a consultant geneticist in London, a paediatric gastroenterologist and nutritionist in Birmingham and a consultant paediatrician each be instructed to examine T and to evaluate the cause or causes of his failure to thrive and the optimum way of addressing it. It is understandable that, as Miss Parker explained to us, the parents should now question whether Dr Hobbs and the other experts who gave evidence in the care proceedings were right to have excluded an organic explanation for T’s problems and whether they themselves were right ultimately to have conceded that the explanation was psychosocial. Nevertheless, whatever the aetiology of the condition, the volume of evidence then given as to the damage which, perhaps coupled with other factors, it caused to the relationship between the mother and T was such that one cannot at present discern a real prospect that a court would find it to be in T’s interests to return to live with the parents.

The threshold to the discretionary grant of leave to apply for revocation of a placement order, set by s.24(3) of the Act, is a change in circumstances since the placement order was made; and the judge found that there had been such a change. Mr Cobb told us that Hull actively considered whether to challenge his finding in this court; but they did not do so. In any event the finding was in my view fully justified. Hull had wisely withdrawn their original submission to the judge that the requisite change had to relate to the circumstances of the applicant rather than to those of the child. Although only five months had elapsed since the making of the placement order, the facts were that during them T’s very low weight had actually declined by 0.1kg (4oz); that a serious professional disagreement had emerged as to the optimum way forward for T; that Hull had concluded that, as things stood, T was not susceptible to direct placement for adoption; and that Dr Hobbs had declined to intervene medically and had even suspended his monitoring of him.

But the judge held that his resultant discretion whether to grant leave should be exercised against doing so. He correctly reminded himself that, in exercising the discretion and in thus surveying all relevant circumstances, he should weigh both whether the mother had a real prospect of success in securing revocation and the interests of T and that the direction indicated by the two factors was usually coincident: see the decision of this court in Re M (children) (placement order) [2007] EWCA Civ 1084, [2007] 3 FCR 681, in particular at [29]. No doubt he also had in mind the comment in that case, at [27], that it was not written in stone that the prospect of success had to be real.

The judge explained the reasons for his discretionary refusal of leave in eleven subparagraphs. The heading of the whole paragraph was “The Parents’ Prospect of Success in an Application to Revoke the Care Order”. The judge should of course have referred to the placement order rather than to the care order. At first I thought that he had made a slip but, with Miss Parker’s encouragement, I began to wonder otherwise. In the end I still regard it as a slip – but as a freudian one. For the judge devoted his first four subparagraphs to the consequences of any revocation of the care order, namely the right of the parents to require that T be returned to their care, and to his correct assessment that it was unrealistic to consider that T’s return to them would be in his interests.

The judge began his fifth subparagraph with a question, namely “if there is no realistic prospect of rehabilitation, what would be the purpose of revoking the placement order?” Although he never expressly answered his question, the clear implication of the remaining subparagraphs is that his answer was “none”.

It was at this stage that, with respect, the judge’s reasoning went wrong. He said:

“I have to ask myself whether the local authority is failing to act as a reasonable parent. What could they be doing that they are not doing to promote [T’s] welfare?”

The judge’s answer was that:

Even had he posed to himself the right question, the judge’s answer to it attracts question-marks. It is clearly unfortunate that, perhaps through no fault of his own, the judge misunderstood the nature of the alternative placement which by then Hull proposed. Irrespective however of that misunderstanding, I fail to see how the judge could have “found” that Hull’s current approach to T’s future care was in his best interests. He was conducting only a preliminary paper exercise into the appropriateness of further proceedings. T’s condition, including his susceptibility to infection, was very serious and, despite Hull’s efforts, was becoming even worse. Experts had been in conflict and, in the light of it, perhaps not surprisingly, Hull had dithered. The judge acknowledged that it was reasonable to obtain a second medical opinion in order to help to chart the right way forward. Surely his benign verdict was, at best, premature.

But the more important point is that in my view the judge asked himself the wrong question. The question was not whether Hull were acting as a reasonable parent but whether in all the circumstances, including the mother’s prospect of success in securing revocation of the placement order and T’s interests, leave should be given. Had the judge asked himself this question, then, although he was right to identify the prospect of delay as a potentially negative factor, I consider that he could have reached only one answer, namely that leave should be given.

In my view the mother has a real prospect of success in securing revocation of the placement order. A local authority will apply for a placement order in relation to a child who is subject to a care order “if they are satisfied that the child ought to be placed for adoption”: s.22(2) of the Act. The placement order will be made if the court is satisfied that the child’s placement for adoption would serve his welfare: s.1(1) and (2) of the Act. On 3 October 2007, in making the placement order, the judge was so satisfied. But what has happened since then? T’s placement for adoption has not just been delayed: it has been shelved. In the words of Hull’s own letter to Dr Hobbs, quoted at [15] above, the plan for his adoption is no longer being pursued until he can thrive; and, as the social worker added in her discussion with the parents referred to at [14] above, “no one knows how long that would be”. Even the plan for a foster placement with a view to adoption has been abandoned. In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all.

In this regard the recent decision of this court in Re T (children: placement order), [2008] EWCA Civ 542, [2008] 1 FCR 633, is relevant. Two small boys were so damaged that, although, if achievable, adoption was the best solution for them, it was accepted to be necessary for them to move into a specialist therapeutic foster home for at least six months before their placement for adoption could realistically be considered. This court set aside placement orders made in such circumstances. Having accepted that the prospect that a child would prove difficult to place for adoption was no reason for declining to make a placement order, Hughes L.J. continued as follows:

“18.

But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the Guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys’ best interests, because their needs could better be met by the kind of substitute family found only in long term fostering. The generalised consideration that adoption would ideally be best does not, on these unusual facts, lead automatically to the conclusion that it was yet possible to say whether it was in the best interests of these boys. In those circumstances I am persuaded that the finding that adoption was in their best interests, and thus that a placement order should follow, was premature.”

In my view it is also in T’s interests that leave should be given. It is in his interests that the apparent change in his current suitability for adoption be examined by the court. For in particular such an examination would precipitate enquiry into all the options available for him, indeed an enquiry informed by such fresh, expert appraisals of his problems as the court might direct. The gravity of T’s condition, of which the judge was well aware but which in the crucial subparagraphs he did not stress; the prolonged deterioration in his condition since he had moved into Hull’s care; the professional conflict; Dr Hobbs’ refusal to continue even to monitor T for the time being; Hull’s dithering; and, as is clearer to us than it was to the judge, their vain pursuit of what Mr Cobb conceded to be an over-ambitious plan to find a foster home with a view to adoption: all these six features should have driven a conclusion that T’s case should come back into court and that, for his sake, the court should get a grip of it. In my view an application for revocation of the placement order, far from being a contrivance, was an entirely appropriate vehicle in which the court could so act.

It will now be clear why I reject Mr Cobb’s central submission. It was that, in that the mother’s proposed application for revocation was not based on any real prospect of T’s return to live in her home, it was a contrivance; that she was aspiring to misuse an application for revocation in order to interfere with the manner of Hull’s discharge of their functions in respect of T pursuant both to their parental responsibility for him under s.25(2) of the Act and to his status as a child “looked after” by them under s.18(3) of the Act; and, specifically, that her real aim was to obstruct the removal of T from his present foster carers and to secure the instruction of the experts favoured by herself rather than the expert favoured by Hull. No doubt the court must, by refusal of leave, guard against an opportunistic attempt to use an application for revocation for improper, collateral purposes. But, in the light of the clear question-mark against the continued appropriateness of the placement order and, as part of that question, the urgent need to identify the programme for T which is most likely to halt his apparently inexorable decline, the mother’s proposed application is not of that character.

Section 100(2)(c) of the Children Act 1989 provides that no court shall exercise the High Court’s inherent jurisdiction with respect to children “so as to make a child who is the subject of a care order a ward of court”. The mother’s attempt to make T a ward of court was founded on the proposition that, as a child presently subject to a placement order, T was not “the subject of a care order”. Such was said on her behalf to be the effect of s.29(1) of the Act of 2002, which provides as follows:

“Where a placement order is made in respect of a child and either –

(a)

the child is subject to a care order, or

(b)

the court at the same time makes a care order in respect of the child,

the care order does not have effect at any time when the placement order is in force.”

My preliminary view is that the judge was correct to hold that, even though a care order referable to a child does not have effect while a placement order is in force in relation to him, he nevertheless remains “the subject of a care order” and so cannot be made a ward of court. In my view Parliament’s contemplation, expressed in (b) of the subsection, that a care order might be made at the same time as a placement order and the fact that, were the placement order to be revoked, the effect of the care order would, without the need for any fresh order, revive (or begin, as the case may be) both militate in favour of an analysis that the care order continues in existence, albeit that its effect is suspended, during the subsistence of a placement order; and that the child remains the subject of it. Nor can I discern any reason of policy which might have led Parliament not to intend that the exclusion of children in care from the reach of wardship, being a core element of the structure of the Act of 1989, should not apply to children in relation to whom placement orders have been made.

What, then, of the other aspect of the mother’s unsuccessful attempt to invoke the inherent jurisdiction of the High Court with respect to children? We know that, with leave granted under s.100(3) of the Act of 1989, local authorities not infrequently invoke the inherent jurisdiction of the High Court, other than in wardship, in order to confer maximum efficacy upon part of their programme for the protection, or otherwise for the welfare, of children. Is this jurisdiction (asked Miss Parker) not to be available in any circumstances to the parents of a child who is subject to care and placement orders? This aspect of the mother’s case was not (wrote Miss Parker) to secure by another route the general monitoring of Hull’s management of their functions under the orders relating to T which would have flowed from making him, had such been permissible, a ward of court. It was (she contended) a focussed attempt, not properly addressed by the judge in judgment, to persuade him to intervene only in one discrete respect, namely to direct instruction of specified further experts in order to help to inform the optimum programme for T’s future. These parents continue to have parental responsibility for T; and his condition is dangerous. Is the High Court required to sit idly by, however critical the situation of a child in care may become? As in the present case, there will usually be a statutory vehicle properly available for judicial intervention in such circumstances. But otherwise these important questions, vividly posed, must await proceedings in which answers to them are compulsory.

I agree.

I also agree.