Re T (A Child)

This appeal concerns the powers and duties of local authorities and the family court when considering an application for a placement order. Where the court decides that a child could live with a family member, but only if there is support and monitoring from the local authority, and the local authority declines to provide that support and monitoring, how should the court respond?

This unusual situation arose in the case of a little boy, now 18 months old, whom I will call Alan. On 21 November 2017, Her Honour Judge Dowding made a care order and a placement order allowing Birmingham City Council to place him for adoption. That had been opposed by Alan’s parents, but by the time the judge made her order, they accepted that neither of them could look after him themselves. Instead, they supported his living with his paternal grandmother. She was a party to the proceedings, and she now appeals to this court. Her appeal is supported by both parents, opposed by the local authority and not supported by Alan’s children’s guardian.

The ultimate question was whether an order leading to Alan’s adoption was shown to be necessary. Having heard all the evidence, the judge found on a narrow balance that the best outcome would be for him to be placed with his grandmother under a care order. However, that could not happen because the local authority had refused the grandmother’s application for approval as a foster carer. The judge asked it to reconsider. It did reconsider, but maintained its position. The judge then made a placement order. On 17 January 2018, I granted permission to appeal.

On 13 March, we heard argument from the parties, at the end of which we announced that the appeal would be allowed and that the grandmother’s claim must be reheard. This judgment contains my reasons for agreeing with that decision.

Alan’s family history is complex. His paternal grandmother, who is 46, has five children: A, the father, J, M(15) and M(13). The older two children share the same father, while the younger three have different fathers, none of whom has played an ongoing role in the children’s lives. The grandmother is to some extent estranged from M(15), who has lived with his grandparents since the age of 13, but M(13) lives with her in her three-bedroom house. So, the grandmother is an experienced parent who has not experienced any local authority intervention in relation to her own children. However, the position of those children is mixed. A is well-established in life. M(13) lives at home and there are no concerns about her care. But M(15) is living with his own grandmother, while J and Alan’s father have both had difficulties, particularly with drugs.

Alan’s father, the grandmother’s second child, also has significant mental health problems associated with cannabis use. He has two older children, aged 6 and 4, who live with their mother and with whom he is allowed only supervised contact. The grandmother is one of the supervisors.

Alan’s mother had a very unfortunate childhood, coming into local authority care after both her parents were imprisoned. She has two older children, who were adopted at a young age. She has unaddressed therapeutic needs as a result of these experiences.

The parents’ relationship began in late 2015 and the mother almost immediately became pregnant. Alan was born prematurely in the summer of 2016, and was placed in foster care as soon as he was fit for discharge from hospital. Against the family background, assessments were obviously necessary, but it is very concerning that it has taken so long for his future to be decided.

These are the milestones in the proceedings:

9.9.16

Application for care order

16.9.16

Interim care order

20.10.16

Assessment of grandmother by Miss B, identifying concerns but agreeing to progress special guardianship assessment

25.1.17

Special guardianship assessment of grandmother by Mrs C – a number of positives, but on balance negative

16.2.17

Addendum special guardianship assessment – negative

28.2.17

Fostering panel refuses to approve grandmother as a family and friends foster carer

28.3.17

Application for placement order

20.4.17

Grandmother granted party status

19.6.17

Final hearing – evidence taken over 5 days from local authority witnesses and mother, adjourned part heard

8.17

Family plan started by family group conference team but not completed

28.8.17

Hearing resumes, evidence taken over two days from father, grandmother, guardian and others; during this hearing, the parents’ case changed to supporting the grandmother; the case was adjourned for written submissions

2.11.17

Main judgment handed down

6.11.17

Second fostering panel refuses to recommend approval of grandmother

9.11.17

Agency Decision Maker accepts panel recommendation

13.11.17

Hearing resumed for oral submissions

21.11.17

Second judgment handed down and orders made

Into this chronology can be added the fact that in January 2017, there was a working agreement between the local authority, the parents and the grandmother about the arrangements for contact between the father and his older children. This issue was explored during the second part of the hearing, with the judge hearing from those children’s mother, and from the father’s brother. At all events, the judge was mindful of the need to consider the extent to which the parents would be able to respect the grandmother’s authority if she became Alan’s primary carer.

The position of the other parties in response to the local authority’s application evolved during the hearing. By the end, the parents were supporting the grandmother, while the guardian advised that Alan should be placed in his grandmother’s care under a care order. Accordingly, she recommended that a final order should not be made until the local authority had had an opportunity to reconsider its care plan.

For its part, the local authority had filed an alternative care plan for the court to consider in the event that Alan were to be placed with his grandmother, but the document spent more time emphasising that this was not the local authority’s preferred course than indicating what support services might be made available. In reality it was no more than an empty shell.

The first judgment is lengthy and thorough. Having described the background, the course of the hearing, and the law, the judge then summarised the evidence of the nine witnesses from whom she had heard. Much of their evidence related to the question of whether Alan could live with his parents, but there was a significant amount relating to the grandmother’s position:

•

Miss B, the allocated social worker and author of the Schedule 4 assessment, identified a number of positives in the grandmother’s potential as a carer and her willingness to accept support to improve her parenting skills. However, Miss B was concerned about aspects of the family situation that might cause emotional harm to Alan if he was placed within the family. She referred to the unhelpful influence of the grandmother’s own mother. She was also concerned about the grandmother’s ability to maintain boundaries and stop the father from seeing Alan whenever he wanted.

•

Mrs C, the special guardianship assessor, also expressed views of this kind. She was not concerned about the grandmother’s parenting skills, but about her conflict management and what she described as “entrenched family dynamics”. She noted problems in the relationship between the grandmother and her own mother and between the grandmother and her other sons. She considered the fact that M(15) had moved away from home to live with his grandmother at the age of 13 to be a serious issue. She also expressed serious reservations about the grandmother’s ability to manage contact, although she was supporting her son’s contact with his older children, making the point that the current good relationship between mother and son may not last. Mrs C was also concerned about the grandmother’s relationship history. It was not the number of relationships, but the speed at which they developed and the involvement of the children with her partners, with one partner moving into the home some years ago within four months of the relationship beginning. The grandmother’s most recent relationship ended in September 2015.

•

The mother expressed positive views about the grandmother, but the judge noted that, though a pleasant young woman, she was capable of moments of aggression which might cause discord in their future relationship.

•

The father said that he would fully support Alan’s placement with his mother. The judge noted that the father’s mental health issues meant that she had to consider whether he would be likely to comply with restrictions upon his contact with Alan. She concluded that he was a young man who likes his own way.

•

The grandmother described family relationships as being good at the present, except as regards her own mother. She described her involvement in the supervision of the father’s contact with his older children as working well. The judge described the grandmother as a very warm-hearted and protective person, but not always truthful and more complex than the straightforward, down-to-earth impression she seeks to present.

•

The grandmother’s eldest son, A, gave evidence about the family situation. He was considered by the judge to be a thoroughly decent young man who was doing his best to help his family but had little or no insight into the “enormity” of the task his mother was proposing to take on.

•

The father’s former partner, mother of his two older children, was called by the family and gave evidence about past incidents, some of which the judge accepted.

•

The guardian described the case as finely balanced. She considered that placement with the grandmother under a care order would be supportive and provide for monitoring, support and coordination of services. She recommended that a final decision be adjourned until the local authority had the opportunity to reconsider its refusal to approve the grandmother as a kinship foster carer. She would not be drawn on her final recommendation in the event that such approval was not provided, saying that she would wish to consider the reasons for continuing to withhold approval. In that event, updated evidence would be required. The judge considered that the guardian minimised many of the concerns about the family dynamics and was in a number of respects overly optimistic.

The judge then set out her analysis and findings. She began by identifying that there were only two realistic options: placement with the grandmother or placement for adoption. The local authority’s case rested on the grandmother’s social media activity (she had inappropriately taken to Facebook in 2014 to protest about the way in which the father’s elder children were being treated by their parents and the local authority’s refusal to intervene); the level of conflict within the family and its likely impact on Alan; the grandmother’s questionable ability to place Alan’s needs before those of his parents; the limitations in her support network; her variable ability to work with professionals; her lack of insight into her son’s mental health difficulties; and her “serial relationships” and the implications of that for Alan’s care. The family members described the situation much more positively, emphasising that there was a capable family member willing to care for Alan.

Having in this way set up the decision that needed to be taken, the judge moved to her conclusion over the course of five substantial paragraphs. The first sets out what she described as her central findings of fact. The second contains her analysis of the factors in the welfare checklists. The third is a table comparing the benefits and risks of a family placement and adoption. The remaining paragraphs state the judge’s conclusions.

The main findings of fact include these:

•

Alan is a much loved and cherished boy whose family members are desperate to keep him within the family.

•

The father has mental health problems, but shows no will to address them; until he does, this unpredictability must be taken seriously in determining issues relating to the safety of his children.

•

The reasons for the family’s change in position have to be considered. It is more likely than not that the parents will expect a great deal of contact if Alan lives with the grandmother. Her ability to manage that expectation appropriately must be considered.

•

Neither parent understands why the contact should be restricted and this risks ongoing conflict within the family.

•

The grandmother’s use of social media to ventilate concern about her older grandchildren was extraordinary and immature.

•

An incident of unauthorised contact between the parents and the father’s older children at the grandmother’s home flags up the family’s capacity for deception.

•

The father does not accept that there is anything amiss in his parenting, and there are grave reservations about his willingness to accept any restrictions upon his contact with Alan.

•

The family has a very poor record of conflict management. There are lengthy estrangements going well beyond routine disagreements. The departure of M(15) is particularly troubling.

•

The grandmother is a very sociable lady who is likely to enter into one or more further relationships without reflecting on the disadvantages that might follow for the children.

•

The grandmother is a kind-hearted woman who genuinely wants what is best for her grandson and will fight tenaciously to achieve that. However, good intentions are not sufficient, and what must be considered is whether she is able to identify any risks and address them. Are the risks of such magnitude that Alan cannot safely be committed to her care?

The judge noted the threshold was crossed on the basis of risk of harm, rather than actual harm. Her consideration of the welfare checklists included these observations:

•

In dealing with the issues of age, sex and background, she considered it important to recognise that Alan is a very young baby who is still within the optimum age range for successful adoption, but will not be for very much longer.

•

Alan needs good-enough parenting, and no more, in order to fulfil his developmental potential.

•

As to the grandmother’s parenting capacity, there is no suggestion that this is impaired by abuse of drugs or alcohol, and she is looking after her youngest child to an appropriate standard.

The judge then tabulated what she saw as the benefits and risks of the two realistic options. She considered that there were benefits in both, but that the potential risks associated with a placement with grandmother outweighed in large measure the risks associated with adoption. However, she rightly did not regard that as an end of the matter because of the importance attaching to family life. She stated her conclusion thus:

“It seems to me that the risks could be managed – just – if Alan were to be placed with his grandmother under the auspices of a care order, but with a higher than usual number of statutory visits, including unannounced visits, in order to… keep the grandmother ‘on her toes’. However, I find that it would be optimistic in the extreme to assume that any care order would be of only 12 months duration: in my judgment, an order is likely to be required for some years to come, whilst the various family members gain in maturity and learn, it is to be hoped, more appropriate methods of conflict resolution.

I am satisfied that there are far too many risks to Alan to justify placing him with his grandmother under any regime less protective than that of a care order… I am thus satisfied that the making of a care order is an essential and proportionate prerequisite to any placement of Alan with his grandmother, and thus I am prepared to take the unusual step of deferring my final decision long enough for the grandmother to be re-presented to the Panel with disclosure of this judgment. I acknowledge, however, that I have no power within these proceedings to compel the local authority to approve the grandmother as a foster-carer and, notwithstanding the absence of a definitive final recommendation from the Guardian in that eventuality, I am satisfied that if the grandmother is not able to care for Alan under a care order, then the only realistic option is likely to be placement for adoption.”

On 6 November 2017, the case was again placed before the local authority’s Permanence Panel, consisting of six independent members, two of whom had been on the panel that had sat in February 2017. In attendance were three social workers, being Miss B and two team managers, and the grandmother.

The minutes, which run to 19 pages, show the detailed discussion that took place. These are features:

•

At the outset, in the presence of the panel members alone, the adviser explained that the judge’s recommendation that the case be reheard is very unusual and has “no remit under Fostering Regulations”. The grandmother would have no appeal process following the meeting.

•

The paperwork before the panel consisted of the January 2017 negative assessment that had been considered at the first panel, along with the judgment and a few other papers. The grandmother was given an opportunity to address the concerns raised in the previous panel decision. She said that she would welcome the local authority’s involvement and support.

•

In response, the social workers strongly argued their case, as appears from this passage in the minutes, which is the only point at which the panel engaged with the court’s judgment:

1.54

[A panel member] highlighted point 96 in the court judgment which stated the risks could be managed if [Alan] was placed under the auspices of a care order for 12 months and in the judgement of the court is likely to be required for some years and a higher than usual number of statutory visits and unannounced visits required in order to keep [the grandmother] ‘on her toes’. [Another panel member] said from what [team manager M] was saying the Local Authority could not or would not commit to this.

1.55

[Ms B, the social worker] said such intrusion would not be fair on Alan in the long term, given his young age.

1.56

[Team manager M] said it was not in the best interest of any child to be on a care order for the 12 months without permanence.

1.57

…

1.58

… [A panel member] said this was not a great starting point for a Connected Persons placement if it needed to be crowded with additional support and supervision.”

•

The panel then continued in the absence of the social workers and grandmother. The adviser said it was important to note that Alan had already had a difficult start in life and that his needs in the future may be higher than normal. She also made a negative comment about the grandmother’s approach to relationships and about her inability to verbalise and provide detail about her regrets about past mistakes. The panel members made contributions that were on the whole critical of the grandmother’s application. They considered that she would not meet seven of the twelve National Minimum Standards for Fostering.

•

The adviser then reminded the panel members that they were being asked to consider the January 2017 assessment conclusion that a positive assessment cannot be made.

•

The panel members noted that the judgment had given further insight into the case and that some of them were new to it. They did not however discuss the contents of the judgment or its conclusion in any greater detail.

•

The panel unanimously resolved not to recommend the grandmother as a connected foster carer. They gave these reasons, which I again quote verbatim:

“(1)

The risks and vulnerabilities outweigh strengths to the application.

(2)

It is likely that Alan’s needs for emotional stability, sense of positive role modelling of internal family dynamics, safeguarding of contact and sense of identity will be compromised.

(3)

Panel members felt the likely risk to Alan’s safety around contact with birth parents and the grandmother’s ability to manage this over the long term.

(4)

The grandmother’s lack of insight into the impact of her relationships and family dynamics and discord has on children in her care and her ability to manage this.

(5)

The grandmother’s inability to grasp the emotional needs of Alan given his traumatic start to life and future uncertainties.

(6)

Concern that the grandmother may not work in partnership with professionals in an open and honest way.

(7)

That the following National Minimum Standards for fostering are not met:” [quoting seven of the twelve standards to the same effect as above].

It can be seen that the social workers did not advance the court’s assessment at the panel but instead contested it and gave the panel to understand that they “could not or would not commit to” a care order, which they described as an intrusion.

On 9 November, the Agency Decision Maker made a decision accepting the panel’s recommendation. She did so by signing the minutes against the pre-entered word ‘Agreed’. Her signature appears at the foot of a box entitled ‘Decision’, which was left empty. The parties received the decision on 10 November, which was a Friday.

On Monday 13 November, the court reconvened for oral submissions. No further evidence was heard. Of the five parties, only two (the mother and the grandmother) were represented by their trial advocates. The parties had had very little time to consider their response to the local authority’s position, and it is right to say that the judge, faced with an abnormal legal situation, did not have as much help as we have had in analysing the available options.

Rather, the judge faced an application made on behalf of the mother, and supported by the grandmother but not by the other parties, for her to recuse herself on the grounds that she had prejudged the matter in the event that the panel refused to approve the grandmother, an application that she rightly rejected.

As to the substance of the matter, the local authority argued for the making of care and placement orders, an outcome that was by now supported by the guardian on the basis that there was no alternative. The grandmother, supported by the parents, argued that the court should consider making a special guardianship order or a section 8 order supported by a supervision order. Alternatively, Miss Seddon argued that the court should make an interim care order or a care order, but not a placement order, as a means of putting further pressure on the local authority to change its plan.

Following this hearing, the judge handed down her further judgment in draft, the perfected version being dated 21 November. She firmly rejected the possibility of Alan remaining in foster care in the long term, noting that nobody had argued for this at the main hearing. She also rejected Mrs Seddon’s suggestion that the court should continue the interim care order in a further attempt to make the local authority change its mind, describing this as an unrealistic and unacceptable delay-creating strategy. On the question of whether or not a placement order should be made, she said this:

“5.

In concluding my substantive judgment, I noted that if Alan could not be placed with his grandmother under a care order, then the only realistic option was likely (my emphasis) to be placement for adoption, but in the unusual circumstances of the case, I indicated that it was only right that the parties had the opportunity to make further submissions once the outcome of the panel was known.

…

10.

I should firstly make it clear that my findings rule out any placement of Alan with the grandmother, unless such placement could be bolstered not just by a care order, but by increased local authority vigilance. The main, but not only, reason why such increased vigilance is required is to ensure that the grandmother was equipped to withstand demands by the parents for unauthorised contact.… I specifically found that I was persuaded that the various risks identified within my substantive judgement could be managed – just – under the auspices of a care order, but that there are far too many risks to justify placing Alan with the grandmother under any regime less protective than a care order. The local authority declines to approve the grandmother as a kinship foster carer and I have absolutely no power to compel them so to do. The Guardian for her part, no longer supports placement of Alan with his grandmother.… It follows that it would expose Alan to very significant risk of harm if I placed him with the grandmother under a private law and order, even if supported by the limited utility of a supervision order. It would be wholly inappropriate to make a care order on the basis of what would effectively be an inchoate care plan prompted by unjustified optimism that the local authority would then change its mind in the face of the court’s refusal to back down and would then approve the grandmother after all.

11.

Mrs Seddon disputes whether I have conducted a balancing act as to which of the two identified realistic options would be best. My evaluation is set out, in particular, at paragraph 95 [the tabular evaluation]….

12.

Having concluded, as I must, that Alan cannot be placed with the grandmother, then it does indeed follow, on the basis of the options put forward throughout the course of these proceedings and at final hearing… that the only possibility is placement for adoption. However, now that long-term fostering has been mooted, it is right that I evaluate that side-by-side with the application for a placement order.… [The judge then balanced long-term fostering against adoption and rejected it as an option.]

…

14.

Balancing as I must the competing options of foster-care, placement with the grandmother or placement for adoption, I am driven to the conclusion that adoption is the only outcome which will safeguard and promote Alan’s needs, both now and in the future, and that his welfare throughout his life requires placement for adoption. Accordingly, I dispense with the consent of each of his parents to adoption on the grounds that Alan’s welfare so requires, and make care and placement orders.… I acknowledge that the orders made compromise the Article 8 rights of the parents and of the grandmother, but I am satisfied that such interference is both necessary and proportionate in order to protect and safeguard the child.”

The judge concluded by staying the placement order for four weeks to allow the grandmother time to make an application for judicial review of the panel’s decision. The grandmother issued a notice of appeal on 14 December. We were informed that judicial review proceedings have also been issued but not yet heard.

As originally drafted, there were six grounds of appeal, to which Miss Seddon now seeks to add three more.

The original six grounds are largely a quarrel with the weight that the judge gave to positive and negative aspects of the grandmother’s parenting capacity. They do not in themselves warrant permission to appeal.

When granting permission to appeal, I did so on the single basis that it was arguable that the test for adoption had not been met in the circumstances that had arisen.

Miss Seddon’s proposed further grounds of appeal, amplified orally, focus more closely on the submissions that she made to the judge. She contends that adoption is, on the court’s own assessment after seven days of evidence, not necessary for Alan, and that as the local authority had not appealed that conclusion, the judge should have insisted upon it. She should not have allowed the local authority to thwart her judgment by relying on a decision of an Agency Decision Maker who had not engaged with the real issue but had instead accepted the recommendation of a panel that had itself effectively ignored the court’s assessment. The judge had carried out a balancing exercise before the case returned to panel, but not afterwards. She could not have concluded that “nothing else will do” and she should therefore have “thought of something else” – adjournment for evidence to be taken from the decision-maker, private law and supervision orders, injunctions against the father, even wardship.

On behalf of the mother, Mrs Hendry supports these submissions. She points out that the judgment did not record the fact that the Independent Reviewing Officer did not agree with the local authority plan, but had considered that Alan could be placed with his grandmother under a care order, something not made known to the panel. Mrs Hendry further submits that it was not open to the panel or the local authority to disagree with the court’s assessment of risk, and that the panel should consequently have approved the grandmother as a carer; alternatively, the decision maker should have departed from the panel’s recommendation. For her part, the judge should have proactively confronted the local authority with the fact that the proposed plan would likely breach the Convention rights of the child and the grandmother. Citing the decision in Hofstetter (see below) Mrs Hendry argues that the judge should have taken the local authority to task for deficits in the approval process that showed little or no attention had been paid to the court’s judgment. If, despite that, the judge found that her hands were tied, she should have carried out a fresh evaluation of the remaining options. Alternatively, she could have transferred the case to the High Court so that the local authority’s decision-making process could be challenged within the proceedings.

On behalf of the father, Mr Messling submits that the judge took a linear approach in accepting that there must be a placement order because there could not be a care order on any other basis. He suggests a number of steps that she might have taken: directing the attendance of the decision-maker to ensure that the court’s conclusion had been properly understood, and to see whether there was scope for a different outcome in relation to fostering approval; considering the use of wardship, as happened in Re W and X (see below); directing the local authority to produce a statement setting out how it could provide the necessary support and vigilance under wardship; directing an up-to-date analysis of the new situation by the guardian. Having taken those steps, the judge should then have reconsidered all the available options.

On behalf of the local authority, we have had written submissions by Mr Foster supplemented by oral submissions from Ms Fottrell QC. Mr Foster submits that the local authority was unable to lawfully place the child with the grandmother under a care order because the regulations had not been fulfilled. The judge did not allow the decision of the panel to overrule her finding that the child could be brought up by the grandmother under a care order; instead, she had proper regard to the different functions of the local authority and the court:

“Nor was this a case where the local authority and the Judge disagreed in relation to whether the child should be placed in the care of the grandmother. Instead, it was a case where the court recognised that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court.”

Ms Fottrell emphasises that this was a principled disagreement. The two judgments read together show that the judge did not take a linear approach. Her rejection of placement with the grandmother under anything short of a care order can be carried forward into the second judgment. Nor was she wrong to conclude that the decision of the panel was a lawful impediment to the option of placement with the grandmother. The position that arose in this case is different from that in Re W (see below), in that this local authority was unable to act without taking a further distinct step (fostering approval), a situation not addressed in Re W.

The guardian’s position on the appeal is puzzling. Like the judge, she considered that the best outcome for the child was placement with grandmother under a care order. That remains her position if a way can be found around the impasse. However, she had in the end supported the making of a placement order. Ms Bache submits that some judges might have pursued the matter further with the Agency Decision Maker, but this judge cannot be said to have been wrong not to do so. There is nonetheless a feeling of unease at the idea that a local authority can effectively override what the court has decided on a welfare basis having heard and evaluated the evidence. This court should consider whether the judge should have done more to persuade the local authority to change its position, and whether, if that failed, the judge was entitled to conclude that adoption was necessary. However (despite not knowing this court’s answers to those questions) the guardian’s position is that she does not support the appeal.

An application for a placement order fundamentally engages the State’s obligation under Article 8 ECHR to uphold the right to respect for family life. The nature of the obligation is concisely described by Sir James Munby P in Re B-S (Children)(Adoption: Leave to Oppose) [2014] 1 WLR 563 at [18]:

“The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B [2001] 1 FLR 611, para 34:

‘Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.’

To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:

‘family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.’”

Both the local authority and the court are public bodies and these well-known obligations apply to them both. This common purpose means that in the great majority of cases the local authority will acknowledge the court’s welfare decision and, if necessary, amend its care plan to accommodate it; where that does not happen, the remedy of judicial review is available: Re C (Religious Observance) [2002] 1 FLR 1119 per Wilson J at [51]. However, there are also divisions of responsibility. The court cannot dictate to the local authority what its care plan should be: Re S and D (Children: Powers of Court) [1995] 2 FLR 456.  Nor can it maintain supervision or control after a final order has been made: Re S (Minors)(Care Order: Implementation of Care Plan) [2002] UKHL 10.

Anyone familiar with care proceedings will know that the intense process of testing that a local authority’s case will receive can often lead it to refine or even completely revise its care plan. This can be at the local authority’s own initiative or at the suggestion of another party or at the suggestion of the court. That is as it should be. It results in better outcomes for children. This is as true now as it was over 20 years ago, when Thorpe LJ encouraged judges to “[use] the litigation process to its maximum effect”: Re CH (Care or Interim Care Order) [1998] 1 FLR 402 at 410. Here is his observation in that case on the relationship between the court and the local authority:

“The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and public authority. It is, from my perception, inconceivable that there should not be reciprocal respect between the court and public authority for their differing functions and differing views. Manifestly, the statutory responsibility post-care order remains solely with the local authority. It is equally manifest that the local authority will pay due regard to the function of the judge in giving judgment upon the care plan after careful appraisal. Manifestly, the local authority will have greater regard for a judgment that is considered and that has embraced all the relevant circumstances and all the necessary expert opinion. I have no doubt that no public authority would wish the judicial appraisal to be preceded by anything less.”

I wholeheartedly agree with this analysis of the respectful cooperation that must exist between local authorities and the family court if the interests of children are to be best served.

A more recent discussion of the interrelationship between the duties of local authorities and of the court is contained in Re W (A Child)(Care Proceedings: Court’s Function) [2013] EWCA Civ 1227, also known as W (A Child) v Neath Port Talbot County Borough Council, a decision that (like Re CH) was unfortunately not brought to the attention of the judge at the hearing on 13 November, though it had been mentioned in the guardian’s submissions prior to the main judgment being given. It is further authority for the proposition that, faced with a care plan that it does not consider to be in the best interests of a child, the court is required to act assertively to achieve the right outcome.

The issue in Re W was much less acute than in the present case. There it was common ground that the child should live with her mother, and the only disagreement was about whether this should be under a care order (favoured by the judge and the children’s guardian) or under a supervision order (favoured by the local authority and the mother). The judge made a care order and the matter came to this court as an appeal by the latter parties. The appeal was allowed, but only to the extent that the matter was remitted to the judge to consider what order should be made in the light of fuller evidence. In the course of a substantial judgment, Ryder LJ, with whom McCombe LJ and Sir James Munby P agreed, trenchantly asserted the primacy of the court’s risk and welfare evaluation in a passage I must set out extensively:

“80.

The court’s powers extend to making an order other than that asked for by a local authority. …  It is simply not open to a local authority within proceedings to decline to accept the court's evaluation of risk, no matter how much it may disagree with the same.  …

81.

It is likewise not open to a local authority within proceedings to decline to identify the practicable services that it is able to provide to make each of the range of placement options and orders work in order to meet the risk identified by the court.  That is the purpose of a section 31A care plan.  If a local authority were able to decline to join with the court in the partnership endeavour of identifying the best solution to the problem, then there would be no purpose in having a judicial decision on the question raised by the application.  It might as well be an administrative act.  Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court.  It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought.

82.

To do otherwise is to risk a disproportionate intervention into the lives of the child and the parents simply because of the financial or other priorities of different local authorities.  To put it into stark terms, it cannot be right that in one local authority a child would be placed with a parent or other kinship carer with significant support to meet the risk whereas in another local authority the same child would be placed with a view to adoption in the implementation of a plan to meet the same risk.   The proportionality of placement and order are for the court.  The services that are available are for the authority. In this regard, I cannot improve on the words of the court most recently in Re B-S (Children) [2013] EWCA Civ at [29]:

"It is the obligation of the local authority to make the order which the court has determined is proportionate work.  The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order.  Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking."

83.

…  For the reasons that follow, this court has concluded that although it is for the local authority to decide what services to supply, as a matter of law they must supply sufficient services to prevent the State's intervention becoming disproportionate.  The decision about the proportionality of intervention is for the court, the decision about the services which are necessary is for the local authority.  Not all services will be practicable and it is for these reasons that the court needs to know what services are practicable in support of each of the placement options and orders that the court may approve and make.  A local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court's decision because it disagrees with the decision or the court's evaluations upon which the decision is based.  It should form no part of a local authority's case that the authority declines to consider or ignores the facts and evaluative judgments of the court.  While within the process of the court, the State's agencies are bound by its decisions and must act on them.

84.

If the local authority's care plan fails to meet the court's expectations, the court may ask the local authority to reconsider.  If the plan in its formulation or content is deficient on public law grounds, then once the family court has asked for that to be rectified (perhaps more than once) then the High Court may engage with the issue to decide the challenge.  …

85.

…  The circumstance in which a local authority can or indeed should be judicially reviewed on the content of a care plan should be rare indeed.  …  For the avoidance of doubt, I shall be more plain.  If the local authority disagree with the judge's risk evaluation they must in a case where it is wrong appeal it.  The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court.  If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding.  To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.

86.

There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.”

Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (above) does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk [81] and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision [83]. I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – “some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so.” As Lord Justice McFarlane remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.

Sections 22A to 22F of the Children Act 1989 make provision for the accommodation and maintenance of looked-after children. Where a local authority is looking after a child who cannot be placed with a parent or other person with parental responsibility, it must place the child in the most appropriate placement available; such a placement includes placement with a relative who is also a local authority foster parent: s.22C(5)-(6).

According to the Department for Education, up to 300,000 children are cared for full time by a relative, friend, or other connected person. As at 2010, over 7,000 of these were looked-after children who are placed by local authorities with family members and friends who have been approved as foster carers. This group is therefore a very small subset of the total number of children living away from their parents, and it can easily be inferred that many others among the much larger total number of friends and family carers might not satisfy all the National Minimum Standards or receive fostering panel approval if they needed to have it.

In relation to the approval of foster carers, there are two relevant sets of regulations: the Care Planning, Placement and Case Review (England) Regulations 2010 (“the 2010 Regulations”) and the Fostering Services (England) Regulations 2011 (“the 2011 Regulations”).

Regulation 22(2) of the 2010 Regulations provides that the authority may only place a child with a person who is approved by it.

Part 5 of the 2011 Regulations governs the process of approving a foster parent. The fostering service (in this case, the local authority) is required to carry out an assessment in accordance with regulation 26, which is then referred to the fostering panel, which makes a recommendation to the local authority as to whether the person is or is not suitable. A local authority must, in deciding whether to approve a person as a foster parent, take into account the recommendation of the panel. A request for review by an independent review panel lies from that decision: regulation 27.

In 2011, the DfE issued statutory guidance under section 7 of the Local Authority Social Services Act 1970 and section 10 of the Children Act 2004: Family and Friends Care: Statutory Guidance for Local Authorities. In the absence of exceptional local circumstances, this guidance should be complied with by local authorities. Guidance on the assessment process for family and friends who apply to be foster carers for a specific looked-after child appears in Chapter 5. It emphasises the need for rigorous assessment, but also recognises the differences there may be between related and unrelated foster carers. The assessment of a family and friends foster carer does not require the carer to be suitable to care for any other child, and acknowledges that there may already be a beneficial connection between the carer and the child. Living with relatives preserves a child or young person’s sense of belonging to a wider family network. The capacity of the wider family to contribute should be considered. On the other hand, issues relating to the child’s parents (particularly around contact) may be more difficult for a related carer to deal with than they would be for an unrelated one.

Fostering panels are intended as multi-disciplinary bodies with a considerable element of independence from the fostering service. This independence means that they cannot themselves make decisions, which are the responsibility of the fostering service, but instead make recommendations in relation to their statutory functions listed below.

In Hofstetter v LB Barnet and IRM [2009] EWHC 328 (Admin), Charles J gave guidance on the Agency Decision Maker’s approach in relation to adoption approval. This has been endorsed for use in fostering cases by statutory guidance (The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services at 5.40). It is good discipline and appropriate for decision-makers to:

•

list the material taken into account in reaching the decision;

•

identify key arguments;

•

consider whether they agree with the process and approach of the relevant panel and are satisfied as to its fairness and that the panel has properly addressed the arguments;

•

consider whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation;

•

identify the reasons given for the relevant recommendation that they do or do not wish to adopt; and

•

state (a) the adopted reasons by cross reference or otherwise and (b) any further reasons for their decision.

Of course none of that was done in the present case.

Another potentially relevant decision that was not brought to the judge’s attention was Re W and X (Wardship: Relatives Rejected as Foster Carers) [2004] 1 FLR 415. In that case, three children were living with their grandparents. The local authority wanted to continue the placement under a care order, but the statutory and regulatory provisions that were then in force meant that if a care order was made, the children would have had to be removed. Hedley J responded by making private law orders, supervision orders and orders in wardship, all with the agreement of the local authority. The case is different on its facts, as the legislation has since been amended to make particular provision for the approval of family foster carers, but it shows that wardship can exceptionally be available to achieve a good outcome where other avenues are blocked.

Drawing these matters together, as regards the parents the threshold for intervention was not in doubt, and the conclusion that they could not care for Alan was clear and, in the end, undisputed. The welfare decision as to whether there could be a family placement with the grandmother was in contrast finely balanced. The judge carried out a thorough fact-finding process and a careful welfare evaluation, leading her to the conclusion that this placement was in Alan’s interests, provided that the necessary local authority services were made available. That was her first preference as a way of promoting Alan’s welfare and respecting the Article 8 rights that were engaged. Her preference was not supported by the decision of the local authority’s fostering panel which, on a much more limited set of data, evaluated the grandmother’s ability to care for Alan differently. For her part, the Agency Decision Maker gave no indication of exercising an independent judgement beyond a simple endorsement of the panel’s recommendation.

Faced with this unfortunate situation, the judge did not press the local authority further. She treated its stance as being beyond the power of the family court to amend and she removed placement with the grandmother from the list of realistic options. She then went on to balance adoption against the (unrealistic) option of long-term fostering before reaching her conclusion.

It is entirely understandable that the judge wanted to reach a final decision. Alan was by then a child aged 15 months who had been in foster care all his life. The statutory obligation under CA 1989 s.32, requiring the court to timetable the proceedings to conclude within 26 weeks had been repeatedly exceeded and extended. The proceedings had been on foot for 14 months. The judge was demonstrably aware that such extensive delay was seriously disadvantageous for a child of this sensitive age, and of the psychological advantages to him of being able to forge bonds with adopters. However, the extensions of time to conclude the proceedings could only have been granted because the court considered them “necessary to enable the court to resolve the proceedings justly”: s.32(5). To state the obvious, the proceedings could only be concluded if they could be justly concluded.

In the end, I am in no doubt that, despite the difficulties of the situation, the judge was wrong to make a placement order at the point that she did, for these essential reasons:

(1)

The judge underestimated her powers. She should not have accepted the local authority’s unchanged position without calling it to account for what was on the face of it an unconvincing response to her careful assessment of risk and welfare. This could have been done in a number of ways, as suggested by Ms Seddon, Mrs Hendry and Mr Messling.

(2)

It is true that the judge stayed her order to allow for judicial review proceedings, but that amounted to an acknowledgement that the resources of the family court were exhausted, when they were not. In effect, she accepted the submission of the local authority, recorded at paragraph 34 above, that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court. It was.

(3)

Even if the point arrived where a decision had to be taken in circumstances where the local authority maintained a refusal to approve the grandmother as a foster carer, it was necessary for the judge to re-evaluate the remaining options for Alan’s future. By not doing this, she effectively boxed herself in. Had she looked at matters afresh, she would inevitably have confronted the fact that this was a child who was being sent for adoption as a direct result of a decision of a non-court body, an outcome unprecedented in modern times so far as I am aware. She would then have been able to weigh that prospect against a range of lesser legal orders (interim care order, private law order, supervision order, injunctions, special guardianship, wardship) in order to arrive at a valid welfare outcome.

(4)

The fact that the local authority’s decision arose as a result of a second process (fostering approval) does not alter the general principles that apply. The Agency Decision Maker was not obliged to follow the recommendation of the panel. Nor was the Agency Decision Maker in relation to fostering approval responsible for the case put by the local authority to the court. The judge’s further investigations would have led her to better understand who was ultimately directing the local authority’s thinking and to achieve an effective engagement with them until the issue had been satisfactorily resolved.

For these reasons, I agreed that the appeal should be allowed and that the matter should be reheard by a different judge. The rehearing will be limited to a consideration of the grandmother’s position and not involve any reconsideration of the parents as carers.

I agree.

I also agree.