M (A Child: Long-Term Foster Care)

This is an appeal against a decision of Mr Recorder Harvey in proceedings relating to young girl, L, who was born in December 2010 and is now 3 ¾ years old.

On 16 June 2014, the Recorder granted a care order in relation to L in favour of the local authority (LA) but refused LA’s application for a placement order. There has been no appeal against the care order but LA appeal against the refusal of a placement order. L’s guardian supports the appeal. M opposes it.

F has played no part in the appeal proceedings. At the commencement of the appeal hearing, we established that he had been served with the notice of appeal through his solicitors in August. Subsequently, they appear to have received no further instructions from F and they requested that LA send any further correspondence directly to him, although it was not entirely clear whether they formally came off the record. We were told that F was aware of the date of the appeal hearing and that that information was reinforced when he was visited by a social worker on the Monday preceding the appeal hearing. He is said to have responded by making an appointment to see his solicitors but then failed to attend it. This erratic engagement with the process is consistent with his behaviour during the hearing before the Recorder.

The Recorder gave his main reasons for his decision in his judgment of 16 June 2014 (“the first judgment”). He supplemented that with an addendum dated 6 July 2014 (“the second judgment”). He also gave a short further judgment on 7 July 2014 when he refused LA’s application for permission to appeal (“the permission judgment”). An important component in LA’s grounds of appeal is their assertion that the judgments are inconsistent with each other. They also argue that the Recorder went wrong in his evaluation of the substance of the case, in particular in his approach to the therapy that M needs before she could care for L, in respect of the advantages and disadvantages of adoption and fostering, and in his conclusions about the importance of L continuing to have contact with M and F.

As presented on paper, LA’s case was that if the appeal were to be allowed, this court should make the placement order that the Recorder refused. This was not abandoned in oral argument but as the hearing before us progressed, LA acknowledged that alternatively the case might have to be remitted for hearing before a different judge.

From birth until September 2013, L lived primarily with M. F had limited contact with L prior to the commencement of the care proceedings but has had contact whilst she has been in interim care, as has M. M’s contact was four times a week until the hearing before the Recorder; since his decision it has been reduced to once a week. F’s contact was set at once a week prior to the Recorder’s decision; we were not told what has happened thereafter.

L was removed from M’s care under police protection powers on 8 September 2013. The sequence of events which led to this began on 22 July 2013 when M and L were reported missing by the maternal family. When the police investigated and made contact with M, she refused to say where she was. Her evidence at the hearing before the Recorder was that she had left home to escape threats of violence that were being made against her by criminals who were angry that she would not allow her home to be used for growing cannabis (§42 first judgment).

LA set out their case as to the threshold, in so far as it related to M, under the following headings: police involvement, risk of physical harm, emotional harm, M’s behaviour, neglect and failure to engage with professionals.

The threshold was not conceded by M so it was necessary for the Recorder to make findings about it. Considerably more detail about the history can be found in his judgment but for present purposes, I need only concentrate on the central matters. The Recorder’s findings included that:

The Recorder also found that M had made a number of other remarks to her sister about her treatment of L and her feelings towards her. Amongst these remarks was the assertion that she had hit L and slapped her. Although he was satisfied M said this, the Recorder found it impossible to say whether it actually happened (§45 and §47). As to M’s comment that she sat L in front of a wall for 3 hours as a disciplinary measure, the Recorder found that that method of disciplining L had been used although the period of time given may not have been accurate (§53).

For his part, F accepted that he had a history of criminal behaviour, that he regularly used cannabis for years, that he had suffered from anxiety and depression, and that he failed to protect L from harm and the risk of harm in M’s care. The Recorder considered that F’s admissions sufficed for threshold purposes.

Amongst the material available to the Recorder was a Community Based Assessment Service assessment of each of the parents and a psychological assessment of M by Dr Penny, as well as input from social workers and the guardian.

Dr Penny’s evidence was of particular importance. He diagnosed M as suffering with “a Cluster C personality disorder”. Cluster C is a group of disorders which includes Avoidant Personality Disorder and Dependent Personality Disorder. Dr Penny’s view was that M suffers from both of these disorders, which would have become established early in her life. He said in his report that “the prognosis for meaningful engagement [in treatment] and sustained, durable change is regarded as poor” (E12). He gave the view, at §138 of the report, that personality pathologies are very difficult to treat and treatments are long and likely to take between 18 and 24 months. In oral evidence, Dr Penny explained that therapy for 6 months would be needed to establish whether M had the emotional strength to carry treatment through. At that point, it might be possible to determine whether further treatment would take 12 or 18 months, hence the reference to 18 months to 24 months overall. He said that even after that period, the prospects of success were only 50% because M’s personality pathology was extremely deeply embedded. He said that therapy could fail at any stage. He said that rehabilitation could only be contemplated in the last 6 to 9 months of successful therapy. Accordingly it would not occur until somewhere between March and December 2015, assuming appropriate therapy had commenced immediately following the Recorder’s decision.

The Recorder found that L would be at risk if she returned to M’s care before M had successful therapy and, indeed, M herself accepted that she needed therapy before she could care for L. Her case was that there should be an adjournment of the proceedings for 6 months on the basis that at the end of that period, the court would be better informed as to the prognosis. F similarly accepted that he needed counselling and he too sought an adjournment for 6 months. The Recorder rejected the option of an adjournment and proceeded instead to decide the applications before him.

LA’s first and second grounds of appeal are that the Recorder’s reasoning was inconsistent as between his first judgment and subsequent judgments and that the contradictions vitiated his decision. The core point is that the Recorder accepted in his first judgment that L could not wait in “temporary” foster care to see whether M could, through therapy, put herself in a position to care for her because that would be “outside the timetable” for her (§76), yet appeared elsewhere to be making provision for precisely that. Counsel for LA, Mr MacDonald QC and Mr Forbes, submitted that this could be seen from the attention given repeatedly by the Recorder, in his second judgment and his permission judgment, to the possibility of L returning to M’s care following successful therapy.

Grounds 3 to 8 attack the substance of the Recorder’s decision on the basis that his approach to fundamental aspects of the case was wrong, particularly in respect of matters such as the prospects for a successful therapeutic outcome for M, the importance of L having contact with her parents, the implications of delay in achieving a permanent placement for L, and the advantages and disadvantages of adoption and long-term fostering. It was submitted that what led to the mistaken approach was that the Recorder failed to have regard to L’s welfare throughout her life as opposed to simply in the present. Had he looked at the case from this angle, he would have concluded that L’s welfare requires adoption.

Ground 9 makes a procedural complaint, namely that the Recorder failed to draw his thinking as to the possibility of long-term foster care to the attention of the parties during the hearing so that they could address the issues that arose as a result. It was incumbent on him to do this, LA argued, because long-term foster care was not part of anyone’s case and the evidence and submissions did not therefore cover the matters which were material to a consideration of it.

For M, Ms O’Reilly supported the Recorder’s reasoning which she did not accept was inconsistent. In her submission, he drew a distinction between temporary foster care and long-term foster care, which he saw in a different light. In long-term foster care, he saw benefits for L, including a continuation of her relationship with her parents. That led him, rightly in Ms O’Reilly’s submission, to the view that it had not been established that only adoption would do.

She underlined what she submitted was a gap in the evidence before the Recorder, namely as to whether M would succeed, through therapy, in putting herself in a position to care for L. This gap meant, she said, that he could not reach the conclusion that there were no options open other than adoption. She blamed the gap upon LA because they had been unwilling to fund therapy for M in the run up to the hearing. She particularly invited attention to the positive indicators for M’s therapy, although she had to concede that the prospect of ultimate success could not be elevated above 50%.

She drew out the importance that the Recorder had placed upon continuing contact between L and the parents. Her submission was that the Recorder relied upon this as a free-standing reason for long-term foster care being in L’s best interests, rather than adoption. Long-term fostering with continuing contact was his “baseline”, she submitted; if a return home to live with M was ultimately possible, that would be a bonus. The good relationship between the parents and L in contact was in any event, she submitted, a factor that the Recorder was entitled to place in the balance when determining whether the case for adoption was made out, together with the fact that L had adapted to foster care and was thriving in it, and the possibility of a successful rehabilitation.

The Recorder’s three judgments do not sit easily together and nor does his thinking emerge clearly from them. There are, on the face of it, inconsistencies in what he says. I am not entirely sure whether this is because he was inconsistent in his thinking or because, in so far as his true reasoning emerged, it only did so gradually over the course of the three judgments.

I can illustrate what I mean by contrasting the end of the permission judgment with the earlier judgments. Concluding the permission judgment, the Recorder expressed himself in a way which suggested that he saw foster care as catering for the next two years or so, until the possibility of L returning to live with M had been fully explored. In the earlier judgments, in contrast, there was, at times, a sense that he contemplated that L would remain in foster care for the rest of her childhood, probably reflecting a different strand of his thinking which was about the importance of continuing the relationship between L and her parents through contact. The end of the permission judgment reads:

“This is a case where it will become apparent in 2 years or perhaps less whether M will be able to care for her daughter, when it is established if she will respond to therapy/treatment. If therapy and treatment is successful, M will be able to apply to discharge the care order. If, as foreseen by Dr Penny, there is a possibility, if not a strong possibility, that therapy fails (sic)…. LA can then make a fresh application for a placement order.”

The first judgment, in contrast, included passages such as those which I have set out below, which I think show that the Recorder was considering long-term foster care with contact as an option in its own right which would potentially endure throughout L’s childhood, albeit that there are some allusions suggesting that he may also have had in mind the possibility of a return to M’s care following therapy (see for example, §64 and the end of §74). The first two passages show the importance that the Recorder attached to continuing contact and the final one appears to be contemplating indefinite long-term foster care in order to maintain that contact:

“I find that the particular needs of L for the present are for her to be cared for in a ‘secure, warm and loving family that is able to meet all her needs’ and, crucially, for continuing the existing and loving relationships with her birth parents by way of direct contact.” (§72, my emphasis)

“I am also concerned that L will interpret being cut off from M as being a ‘punishment’ for having behaved wrongly…. “(§73)

“I do not think that this analysis [the guardian’s analysis of the shortcomings of long term foster care] places sufficient weight on the importance of maintaining direct contact with her parents. It is an evaluation which does not explain why long term foster care ‘will not do’, to paraphrase, slightly, the words of Baroness Hale in a number of cases. I accept that foster placements may not be as stable or secure as adoption orders, but some succeed, just as some adoptions fail. There is no reason for the local authority to be unnecessarily intrusive in a long term fostering placement. She should be able to enjoy a relatively normal childhood, save that she would be seeing her birth parents during contact, rather than living with one or other of them.” (§78)

In the second judgment, which the Recorder expressly did not intend to affect his conclusions in his first judgment (§81), there are passages which seem to merge the idea of long-term foster care as a freestanding option and foster care as a way of preserving the possibility of a return to M. This can be seen, for example, in §88 where the Recorder commented that the social worker had not considered what L’s wishes would have been if she had been offered the option of “long term foster care with direct contact continuing and her mother receiving treatment and the possibility of return to her mother’s care if the treatment was successful”. It can also be seen in §93 where the judge comments on the Statement of Facts as follows:

“Again, there is no analysis of the option of long term foster care, with its benefits of continuing the strong bond between M and L and the possibility of return to her care if she successfully undergoes the therapy and other interventions.”

The passages that I have quoted so far leave the reader unclear as to the design that the Recorder had for long-term foster care, whether it was to be a vehicle for preserving contact or the means of providing an opportunity for a return to M if her therapy succeeded or both, but it would probably be inappropriate to describe them as inconsistent. However, I agree with LA that the Recorder’s rejection of temporary foster care as inappropriate for L at §76 is difficult to reconcile with the order that he made which, on one view, provided for just that, certainly if events were going to develop as the Recorder contemplated at the end of the permission judgment.

I agree with Ms O’Reilly (as did Mr MacDonald) that the Recorder seems to have perceived a difference between short- and long-term foster care, believing long-term foster care to be a more settled concept. Of course, he was correct in perceiving a difference in the sense that local authorities tend to designate foster parents as either short- or long-term foster parents and children are placed in one or the other type of home depending on their circumstances. However, foster care of either type has its insecurities and disadvantages, see Re V (Long term Fostering or Adoption) [2014] 1 FLR 1009 @ §96 where I compared foster care and adoption. Furthermore, on the facts of this case, as Mr MacDonald submitted, the distinction between short- and long-term foster care was a distinction without a difference because a move was probably on the cards for L at some future date, even if she was placed in long-term foster care (see the conclusion of the permission judgment).

In the course of argument, Mr MacDonald submitted persuasively that the difficulties in the course taken by the Recorder were demonstrated in practical terms by the problem for LA in deciding what type of foster care should be chosen for L if his order were to be upheld. He had created, it was submitted, an undesirable half-way house between true long-term foster and short-term foster care which was the worst of all worlds for L. There is force in that submission. The Recorder’s plan for L had built into it uncertainty and insecurity. It also incorporated delay for a period potentially extending to 2 years. Delay, on the evidence before the Recorder (which was in familiar terms), was likely to harm L’s chances of a successful adoption placement if, ultimately, that was the proper outcome for her. Indeed, he himself accepted that a decision about whether adoption was appropriate needed to be made as soon as possible because a successful adoptive placement was more likely now than later (§72).

To justify a decision such as this would require the clearest of reasoning, particularly in the face of the very guarded prognosis for M’s therapy. I am afraid that this is absent from the Recorder’s judgments. I cannot reliably tell whether he proceeded as he did in order to leave open the possibility of L going home to one of her parents if therapy were to prove successful or because he considered that her relationship with them was such as to require preservation through contact, notwithstanding the disadvantages for L of the long-term foster care which would be the inevitable corollary of that. Furthermore, I am not confident that he gave weight to the guarded prognosis for successful therapy, or took into account the advantages for a child of her age of adoption and the disadvantages of long-term foster care, or bore in mind the advice that he had accepted at §72 (see below) as to the need to deal with the adoption question sooner rather than later. He seems to have been inclined to minimise the disadvantages of foster care, on the basis that long-term foster care would be better than short-term foster care and that LA would not be “unnecessarily intrusive in a long-term fostering placement” and L could have “a relatively normal childhood” in that context (§78). In this regard, he was, in my view, overly optimistic, not least because, with the best will in the world, LA would not be able to avoid involvement in L’s life because of their statutory duties to protect her as a looked after child.

The Recorder was, rightly, anxious to respect the guidance given in Re B-S (Adoption: Application of Section 47(5)) [2013] EWCA Civ 1146. However, his interpretation of the recent jurisprudence may have led him astray. He said:

“72.

I agree with the guardian that [L’s] particular needs involve a decision being made as soon as possible as to whether adoption is appropriate, because her age, at 3 ½, makes it more likely that transfer to an adoptive placement would be more likely to be successful now, rather than later. With respect, this starts to suggest an approach which would contrary, however, to the guidance given in Re B-S and the earlier, recent authorities referred to above (sic). The temptation in every case, where no-one from the birth families will be able to care for a child of 3 ½ in the relatively near future, will be to disregard alternatives to adoption because it is easier to find adoptive parents for younger, rather than older, children…..”

The “recent authorities referred to above” are Re B (a child) [2013] UKSC 33 and Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965. What is said in these authorities about the need to consider all the options and to sanction adoption only if nothing else will do must be interpreted with a careful eye to the realities of a child’s life. Delay is one of factors that always has to be taken into account in determining any question with regard to a child’s welfare, see section 1(3) Adoption and Children Act 2002 (ACA 2002) and section 1(2) Children Act 1989 (CA 1989). But whether an individual child’s welfare requires adoption depends on many other factors besides delay. A vital starting point for what those factors might be in a given case is the list in section 1(4) ACA 2002 (and its equivalent for Children Act proceedings in section 1(3) CA 1989) but these are not of course exhaustive lists. It is to be noted that the child’s age features in both of them.

The fact that speedy action will improve the prospects of a successful adoption for a particular child of a particular age must take its place in the overall appraisal of the case. Sometimes when considered with all the other factors, it will dictate that the court approves a plan for adoption of the child, even when full weight is given to the important reminders in recent cases, starting of course with Re B, that steps are only to be taken down the path towards adoption if it is necessary.

What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests.” (my emphasis)

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.

Accordingly, if, as it appears may have been the case, the Recorder’s reading of the recent authorities led him to put to one side the guardian’s view (which he had accepted) that at L’s age, a transfer to an adoptive placement would be more likely to be successful now than later, he was mistaken. I accept the submission of Mr MacDonald that the potential impact of delay on L goes beyond simply making it harder to find adopters for her, and includes, for instance, the possibility that it will make it harder for her to form secure bonds with her new carers. All the possible consequences of delaying in making a decision about her future should have been considered along with all the other material factors in the case.

These various problems with the Recorder’s judgments lead me to a clear conclusion that there is no alternative but to allow the appeal and overturn the Recorder’s decision. A more difficult question, to my mind, is what order we should make in its place.

This court could do as LA seek and make the placement order that the Recorder refused, see Re V (Long-term Fostering or Adoption) [2014] 1 FLR 1009. Here, however, I do not consider that we should do so. I can see why it was suggested. The options presented to the Recorder were only twofold: either a temporary solution whilst M attempted to put herself in a position to care for L, or adoption. Long-term foster care was not recommended by LA and the guardian and the parents did not attempt to put it on the agenda for the Recorder. He observed at §90 in the second judgment that the social worker was not cross-examined about the relative merits of long-term foster care as against adoption and described this as “unsurprising”, “perhaps inevitable from the cases being advanced by M, F and the guardian”. Now that the temporary solution has been rejected without challenge in this court, why is it not appropriate, it may be asked, to impose the other option?

In my view, however, the Recorder’s judgments have changed the complexion of the case by virtue of his serious consideration of a third option, namely long-term foster care with contact. Ms O’Reilly, not surprisingly, was intent upon breathing further life into this option in her submissions.

The evidence so far has not been directed to the question of whether it would be in L’s best interests to remain in foster care so that she can keep her links with her parents through contact. I noted earlier that one of LA’s grounds of appeal is that the Recorder had not drawn his thinking about this to the attention of the parties so that they could address the issue further and I have just referred to §90 of the second judgment where the Recorder himself remarked upon an example of the gap in the evidence on this topic.

As matters now stand, in my view, we cannot summarily dismiss the idea of long-term foster care without the benefit of further investigation, which this court is in no position to carry out. Mr MacDonald was, appropriately, not prepared to advance the proposition that continuing contact would never outweigh the disadvantages of long-term foster care as opposed to adoption for a child of 3 ½ years old; it all depends on the circumstances.

L spent the first years of her life in the care of M. She is no longer an infant and will have an awareness of her circumstances. There is no dispute that there is a warm and loving relationship between her and M and that most of the contact between them has been positive. She has settled well in her foster placement notwithstanding contact taking place, prior to the Recorder’s determination, 4 times a week. No doubt additional factors would also be urged by M in favour of continuing contact if the question were to be considered again and F would be likely to advance arguments based upon the merits of continuing contact with him as well.

Against that, if thinking remained as it was at the time of the hearing before the Recorder and before us, LA and the guardian could be anticipated to argue, amongst other things, that it is important not to put a disproportionate premium on contact for a child of this age as against the need for long-term security and stability and bearing in mind the well-recognised disadvantages of foster care as opposed to adoption.

In summary, in my judgment, there is no alternative but to allow the appeal and to remit the case for rehearing. In the light of this, I do not wish to say anything that may be taken as an indication of a view as to what the result should be. I will not, therefore, engage further in a consideration of the factors that will be relevant to the court’s decision at the new hearing. That decision will, of course, have to be taken in the light of the facts as they now stand, as they may have changed since the Recorder heard evidence. I do not think that it is possible in all the circumstances to return the matter to him so it will have to be another judge who takes charge. I hope that that can be done as soon as possible. I contemplate that a directions hearing will be held in the Family Court as a matter of urgency.

I agree.

I also agree.