Herefordshire Council v AB

This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time. Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

CD was born in 2001. A series of referrals were made to the local authority in respect of his parents' allegedly abusive relationship in 2005 which led to CD being accommodated by the local authority in October 2009 when he was eight years of age. He was not made the subject of public law care proceedings until September 2017, when he was 16 years of age; a period of eight years, subject to section 20 accommodation.

On 8 December 2017, I made a special guardianship order in respect of him in favour of his long-term and very dedicated foster carers to whom he affectionately refers as Fossil and Grumpy. I reserved judgment.

GH was born in early 2008. He was born with significant disabilities and spent the first five months of his life in a special care baby unit in Hereford hospital. His mother was 14 at the time of his birth and his father was 17. In July 2008, GH was accommodated pursuant to section 20 of the 1989 Act. Initially, he was placed in a mother and baby foster placement with his mother but this broke down in September 2008. He remained with the foster carer. He was not made the subject of public law care proceedings until September 2017 when he was nine years of age; a period of nine years under section 20 accommodation, the whole of his life to date.

Notwithstanding this appalling state of affairs, GH has been in the care of his dedicated and long-term foster carer ZA since his discharge from hospital. The resolution of the future care of GH will be determined by His Honour Judge Plunkett at an issues resolution hearing listed on 12 February 2018 at Worcester.

None of the criticisms in this judgment should be read as referring to or reflecting upon either of these foster carers. I have nothing but admiration for the stable and nurturing care they have given to both boys.

These two cases, once issued, came before the designated family judge (‘the DFJ’) for Worcester and Hereford, His Honour Judge Plunkett, who referred both cases to me as the Family Division Liaison Judge for the Midland Circuit. When the cases came before me for the first time, I had statements from the respective heads of service which set out the chronology of events for both children but neither of which gave me any explanation for what appeared to be wholly inexcusable delays and inaction in the care planning for these children.

I required the Director of Children's Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.

The latter document made very grim reading. Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children. Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.

Mr Chris Baird was appointed the permanent Director for Children's Wellbeing for this local authority (otherwise known as the Director of Children's Services and hereafter referred to the as ‘the Director’) on 10 November 2017. It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.

Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above. Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future. I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.

In Northamptonshire County Council v AS & Ors[2015] EWHC 199 (Fam) I said at paragraphs 35 to 38:

In the case of Re: N (Children) (Adoption: Jurisdiction) [2016] 1 FLR, 621, the President said at paragraphs 157 to 160 and 171 as follows:

I respectfully agree with everything said by the President.

In February 2017, I sent a letter to the Director of Children's Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits' designated family judges and of the chairs of the circuits' ten local family justice boards. One of the principal topics addressed was the use of section 20 accommodation. I offered the following guidance:

This guidance, which was given by me in my role as the Family Division Liaison Judge of the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority's child care solicitors.

The history of CD's life in the care of the local authority can be summarised as follows. As I have said, CD first became known to the council in late 2005 following a series of referrals related to concerns around CD's parents, being in a domestically abusive relationship, the impact of emotional harm on CD and his mother, experiencing difficulties in managing his behaviour. To prevent CD suffering or being at risk of significant harm, on 14 October 2009 CD was accommodated at the request of his mother owing to CD being beyond parental control. CD's first LAC review was held on 9 November 2009.

CD's mother was not engaging with the local authority at this time and the care plan proposed for CD was for him to remain under section 20 whilst exploring the suitability of CD's father as primary carer. On 16 December 2009, legal advice was sought and it was advised that the threshold for care proceedings were met.

At CD's second LAC review on 27 January 2010, potential reunification had not been ruled out but would be the subject of an assessment and pending direct work being undertaken with CD's parents. CD's legal status was, therefore, deemed appropriate whilst reunification continued to be explored. On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20. The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care. I shall return to this issue later in the judgment.

A further LAC review was held on 29 April 2010. That review recommended that the local authority should take steps to address CD's legal security and permanence. A legal planning meeting was held on 4 August 2010. The legal advice given was to issue care proceedings to gain greater clarity around the parties' views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor. Nothing was done.

A further LAC review held on 18 November 2010, during which CD's independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed. Nothing was done.

Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD's needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings. At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March.

On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children's Services who stated she was not, "agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD's care given he had been accommodated for some time".

This decision was fundamentally misconceived and fundamentally wrong.

A further LAC review was held on 4 October 2011. The recommendation was that CD should remain accommodated under section 20 because of (i) the Assistant Director's decision and (ii) potential reunification to his father's care was still being considered. A further LAC review was held on 7 March 2012, which recommended permanence be achieved for CD through him remaining accommodated under section 20. Quite how such an arrangement achieved permanence for CD or was in his welfare best interests, I do not understand. Neither the local authority nor CD’s foster carers had parental responsibility for him.

It was stated that there were no current plans for reunification at that time. The independent reviewing officer noted it was unclear as to how the local authority had reached this permanence decision. CD's foster carers were noted as being committed to caring for CD long term and CD also expressed his wish for this. There was a further LAC review on 7 September 2012. At that review, the independent reviewing officer urged the local authority to be clear about permanence for CD and to do this without delay.

The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday. There had been a query about his legal status. The decision was made that he remained accommodated pursuant to section 20, noting that CD's mother was engaging well with the arrangements. A further LAC review was held on 16 July 2013. No changes were recommended to CD's care plan. The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD's foster carers applying for a special guardianship order.

On 10 March 2014, the fostering team manager wrote to CD's social worker and team manager seeking clarity regarding CD's carer's position in relation to an application for a special guardianship order. The Fostering Team Manager shared the view that a special guardianship order would be the best outcome for CD given the long-term stable nature of the placement and his carer's commitment to him. At a LAC review held on 18 March 2014, it was confirmed that CD's carers were considering making a special guardianship order application. The same note was made at the next LAC review on 9 September 2014. At the next LAC review, on 10 February 2015, it was recommended that CD remained subject to section 20 accommodation whilst a special guardianship order was being progressed.

At the LAC review on 15 July 2015, CD's mother expressed her opposition to the application for a special guardianship order. A further LAC review was held on 16 December 2015. The reasons why a special guardianship application had not been pursued were discussed. It was considered that it would be too unsettling for CD whilst studying for his GCSEs, particularly in light of the mother's opposition to the making of such an order. It was agreed that the placement would be a long-term foster placement.

Following the issue of guidance in 2016, CD's case was reviewed by a service manager on 31 March 2016. The view was that CD's legal status remained appropriate, given the stability of his placement and his age. At a further LAC review on 3 June 2016, it was discussed that CD would prefer to be legally linked to his carers via a special guardianship order and not be looked after or the subject of a care order. It was recorded that permanence for CD had been established practically through his placement but issues about his legal status remained. The local authority, it was noted, had considered applying for a special guardianship order in favour of CD's foster carers but they did not pursue this option due to CD's mother opposing the plan. A further LAC review was held on 18 November 2016, at which the further discussion took place about the making of an SGO.

On 23 November 2016, CD's foster carers confirmed in writing their decision not to pursue an application for a special guardianship order. They stated they had discussed the matter with their family and had decided not to pursue it due to the length of time that had already elapsed and the potential disruption for CD.

There was a further LAC review on 3 April 2017. On 5 September 2017, legal advice was sought at a legal gateway meeting. It was recognised that CD had been accommodated under section 20 since 2009. Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate. Thereafter, the decision was made to issue these public law proceedings.

The history of GH's life in the care of the local authority can be summarised as follows. GH, as I have said, was born with significant disabilities and spent five months in hospital in a special care baby unit. He then was placed with his mother, with ZA, in a mother and baby foster arrangement. That arrangement sadly broke down in September 2008. The mother left and GH remained with ZA. He became accommodated under section 20 on 9 July 2008 purportedly on the basis of the consent given by his 14-year-old mother. The first LAC review was held on 22 July 2008. There was then a legal planning meeting on 2 September 2008. There were discussions about the role played by the mother's mother, the maternal grandmother.

On 3 September 2008, the following day, it was recognised that care proceedings should be commenced in respect of GH. No application was made.

At the second LAC review on 30 September 2008, it was recorded that there was going to be a twin tracking approach taken. This was to determine whether rehabilitation of GH to his family would be possible or whether to follow and issue court proceedings. Thereafter, GH had a number of admissions to hospital for various periods of time for ill health between July 2008 and November 2009. At a LAC review and child protection conference on 16 March 2009, a decision was made that GH would no longer be subject to a child protection plan as he was not at risk of significant harm due to being in the care of his foster carer. Consideration of rehabilitation continued for some period of time. It was eventually agreed at a LAC review on 5 July 2011 that there would not be rehabilitation of GH to the care of his family.

There was a professionals meeting held on 8 March 2011 where, again, it was confirmed that it was clear that the mother and the maternal grandmother were not able to provide for GH's future care needs. There then followed a LAC review on 5 July 2011 when it was agreed that GH would not be rehabilitated to the care of his mother or of his wider family. It was noted that the family were in agreement with this plan. It was decided that care proceedings would not be instigated and GH would remain accommodated under section 20. This plan and proposal was confirmed throughout 2012 and 2013.

At a LAC review held on 4 March 2014, there was a change of plan by the local authority. The local authority decided to take GH’s case to a legal planning meeting.

It was decided at the legal planning meeting that care proceedings should be instigated. The care plan of the same date stated that the local authority is considering the need to obtain a full care order. Nothing, however, was done.

At a LAC review held on 5 September 2014, the issue of care proceedings, it was decided, would be put on hold because GH's carer expressed a wish to apply for a special guardianship order. At the following LAC review on 24 February 2015 it appeared that the foster carer was being offered a choice either for GH to remain under section 20 accommodation, or for her to apply for a special guardianship order. It appears that the foster carer opted for the first option of GH, remaining under section 20 accommodation. It is not at all clear, and I have no explanation, as to why the foster carer was offered that choice. Further, I do not understand why the possibility that the foster carer might apply for a special guardianship order justified a delay in the issue of public law care proceedings.

In June 2016 a comprehensive review was undertaken of all section 20 accommodation cases by this local authority. A LAC review was then held in respect of GH on 8 December 2016 where it was reported that legal advice regarding the continuing use of section 20 had been sought. The decision was made that (i) an application for a care order needed to be initiated, and (ii) the local authority needed to gain parental responsibility due to GH's complex health needs and the fact that he might need to move to a new placement in the near future. Nothing was done.

A further legal gateway meeting took place in March 2017. The case was escalated by the independent reviewing officer to the Children with Disabilities Team at regular intervals between May and July 2017. The independent reviewing officer then raised the matter with the Head of Service for Safeguarding and Review, who in turn escalated it to the relevant Head of Service in July. It was not until 22 September 2017 that this application for a care order was in fact made.

In his commentary on the chronology of CD's involvement with the local authority, the director noted that in 2009 it was the usual practice of this council not to initiate care proceedings where it was the social worker's perception that the parents consent to their child being looked after. This followed from a widespread misunderstanding of the ‘no order principle’. Now every child who is accommodated pursuant to section 20 is presented to a legal gateway planning meeting within four weeks of being accommodated. The director concluded as follows:

In his commentary on the chronology of GH's involvement with the local authority, the director said the following:

In addition to these letters from the director, I had a statement from GH's independent reviewing officer. She explained she had at numerous review meetings emphasised the need to secure legal permanence for the child and had repeatedly highlighted the lack of planning for GH. She ultimately challenged his legal status as a looked after child following a comprehensive review of all children accommodated by the local authority which, as I have said, was undertaken in 2016. She accepted however the following: (a) there was no evidence that matters were escalated to the responsible heads of service as is now the current practice; (b) the delay in issuing care proceedings should have been more robustly challenged by her as GH's independent reviewing officer; and (c) she should have challenged more tenaciously the failure to achieve legal permanence of GH, especially in between LAC reviews.

In respect of both CD and GH, there were repeated occasions over very many years when it was accepted that legal advice should be sought and/or that care proceedings should be issued. Notwithstanding the close scrutiny which has been undertaken by senior managers of the local authority and by the director, it has still not been possible to explain why these decisions were not put into action. It is extremely concerning that when this local authority recognised, as it did on repeated occasions, that it was not acting in the welfare best interests of either these children, it did nothing. The complete inertia is inexplicable. Such gross failings by a local authority are intolerable. CD and GH were denied a voice in the determination of their future care. The same may be said about their parents. The boys were both denied the opportunity for clear and focussed planning about their respective futures to be undertaken and for the same to be endorsed by a court. The early issue of care proceedings would have enabled a decision to be made about their legal status and their future in a structured and time-limited manner.

In Re: N (Children) (Adoption: Jurisdiction) above the President emphasised the importance of: (1) obtaining an informed consent from the parent for their child to be accommodated by the local authority; and (2) the local authority returning the child to the parent or parents if and when consent was withdrawn. He said at paragraphs 168 and 169:

GH's mother was just 14 years old when he was born. Quite astonishingly, as the director accepted, there is no evidence that the local authority gave any consideration at all as to whether this mother was capable of giving a valid consent to the accommodation of her baby. This serious omission greatly compounds the failings of this local authority in respect of this child.

On 28 March 2010 CD's mother gave formal written notice to the council of the withdrawal of her consent to CD being accommodated. In response, the local authority (1) did not return CD to her care, but (2) advised her to seek legal advice if she wished CD to be returned to her care. The director has acknowledged that this was a misuse of the local authority's powers and it should have made immediate arrangements to return CD to his mother's care. It is, however, far worse than being a misuse of powers. The local authority acted unlawfully and unlawfully retained care of CD until at least February 2013 when it appears from the chronology that the mother was engaging with the local authority and agreeing to CD remaining in care.

In the case of one of the 42 children accommodated by the local authority referred to above, the mother withdrew her consent for her child to be accommodated in 2013. The local authority not only did not return the child to her mother's care, it effectively did nothing in terms of care planning for the child. Thus, for four years the local authority unlawfully had care of this child.

I have indicated to the parties at earlier hearings that I was minded to give a public judgment in respect of both cases. It was submitted on behalf of the local authority that I should anonymise the names of all parties, including the local authority, because the adverse publicity would be damaging to the council. I subsequently received a letter from the director bringing to my attention Hereford's struggle to recruit solicitors and social workers and that "adverse publicity for the local authority does count in the minds of some prospective employees and it would be unfortunate if our historic failings were to turn people away." The contents of this letter, which had been disclosed to all of the other parties, caused me to consider once more whether it was necessary for me to name the local authority in this case. After long and careful reflection I have concluded that it is. I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious. There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit. Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard.

The director is understandably concerned about the potential adverse consequences of a public judgment. I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority. In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care.

I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989. By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well. I offer the warmest of thanks and congratulations to CD's foster carers and to GH's foster carer. For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them. Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing.

Nevertheless, serious and long lasting damage has resulted. Contact between CD and his mother had never properly been considered nor promoted. The mother is not without blame on this issue. It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son. CD was dramatically affected. What child could reasonably cope with their mother or father not recognising them?

In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration. She was not given any of the foregoing. The local authority, as referred to above, did not even consider whether she was capable of consenting to GH's accommodation. Thereafter she was frankly side-lined. As she grew older and matured, little, if any, consideration was given as to whether she could then care for GH or whether she could and should play a greater role in his life. I have a very real sense that her role as his mother, albeit, or perhaps because, she was so very young, was simply overlooked and ignored. Fortunately, with the issuing of these proceedings it has been possible to secure the placement of both children. In respect of CD with his current carers as special guardians. In respect of GH, to secure his placement with ZA but then to consider where his interests lie in a future long-term placement. It has also enabled CD's foster carers to be invested with parental responsibility for him.

I have been seriously critical of the actions and inactions of this local authority. I do not, despite the explanations offered, understand how or why this local authority failed these two children so very badly. Nevertheless, I am satisfied that the appointment of a new director and a new management team, who are alive to the past failings in these and in other cases, will lead to an improved service for the children and young people who are now or hence forward will be placed in the care of this local authority.