MBC v X & Ors

This case concerns the nature of orders that should be made with respect to the placement of 4 children with family members and the role of The National Minimum Standards for Fostering in the assessment processes pertaining to relative carers.

The court is determining the welfare of four children: Child A, who was born in 2013, Child B who was born in 2011, Chid C who was born in 2015 and Child D who was born in 2016.

Ms X is the mother of all four children.

Child A and Child B’s father is Mr Y.

Child C and Child D’s father is Mr Z.

The paternal grandparents of Child C and Child D are Mrs W and Mr W. They are of course also Mr Z’s parents.

The local authority, Knowsley Metropolitan Borough Council issued applications for public law orders with respect to all four children in December 2017.

This matter came before me on 25^th May 2018, effectively for the first time, although I had read the court bundle and held a brief hearing on 22^nd May 2015, a matter to which I will return later in this judgment.

By the time the matter came before me on 22^nd May 2018 the issues in the case had been reduced considerably and there was a high degree of agreement concerning the future for the children.

It had been agreed that the section 31 threshold had been established with respect to all four children on the basis set out at Part 6 of the application [page B9 of the Court Bundle]. The threshold, which I adopt as if set out in this judgment, relates a story of ongoing lengthy local authority involvement with the children who have been subject to witnessing domestic violence between the mother and Mr Z, drug use, poor home conditions, criminal activity and a chaotic lifestyle.

It was agreed by all parties, including each relevant parent, that the children could not return to the care of their mother nor Mr Z by reason of their continued difficulties.

Shortly before the initiation of these proceedings Child A and Child B moved to live with their father and his mother. Mr Y does not feature heavily in the Threshold referred to above, he and the mother having ended their relationship in 2011. However, the threshold does record the following:

“[Mr Y] is presently caring for his children with the assistance of his mother; home conditions are poor and there is insufficient room for this to be long term, and further assessment is required.”

On the face of the initial application, the local authority sought interim supervision orders with respect to Child A and Child B. The Court in fact made interim care orders that have persisted to date. The children have remained in the care of their father and grandmother at the aforementioned property although the father plans to move to a new property imminently.

It is agreed by all parties that Child A and Child B should remain in the care of their father, Mr Y.

Child C and Child D were made the subject of interim care orders and placed in foster care where they have remained to date. It is agreed that Mr and Mrs W, their paternal grandparents, will take over caring for them in the very near future.

The only issue related to the nature of the orders under which the above placements are to be continued or secured.

The local authority proposed that Child A and Child B should be subject to a Child Arrangements Order setting out that the children live with their father and providing for the time they spend with their mother. This would be accompanied by the making of a 12-month supervision order.

The father, Mr Y, sought the making of care orders with respect to both children on the basis that he required the statutory support and duties that care orders would bring to the children.

The mother considered care orders more appropriate.

The Guardian sought the making of care orders with respect to both children.

With respect to Child C and Child D, the local authority proposed that they be the subject of Special Guardianship Orders (“SGO”) in favour of Mr and Mrs W with an accompanying 12-month supervision order.

The Guardian sought the making of care orders with respect to both children.

Mr and Mrs W, who have attended the hearings before me in person, and as I understand it have had some legal advice, expressed the view that they did not mind which orders were made as along as the children were placed with them.

The mother considered care orders more appropriate.

Mr Z supported the making of special guardianship orders in favour of his parents with supervision orders, although his participation in the lives of the children and these proceedings has been somewhat limited of late.

This matter had been considered by the Designated Family Judge for Cheshire and Merseyside on 15^th May 2018. At the conclusion of that hearing she directed that the local authority should file a statement from the Agency Decision Maker (“ADM”) and that the ADM should attend the final hearing she listed to take place on 22^nd May. That hearing was listed before District Judge Brandon. The matter was then transferred to me by the Learned District Judge as she did not have time to hear the matter. As it transpired I did not have time to hear a contested case on that day, so the matter came before me on 23^rd May, when again there was insufficient time and so was finally dealt with on 25^th May. The direction for a statement from the ADM doubtless arose out of the fact that at that time the local authority were asserting that there could not be care orders in respect of Child C and Child D because Mr and Mrs W were not approved as foster carers.

The statement was filed by Mr Peter Murphy, Assistant Executive Director for Knowsley Children’s Services. For reasons that were not explained, he did not attend any of the hearings before me and his statement was spoken to by Ms A Clarkson, the Permanence Panel Chair. I also heard evidence from the Children’s Guardian Ms Nicola Bolger and submission from the parties on the issue. All parties agreed that the matter could be dealt with by way of evidence from those witnesses and submissions.

By the time the matter came before me on 25^th May 2018 the Local Authority indicated through Counsel that if the court made care orders with respect to Child C and Child D then the local authority would continue to place the children with Mr and Mrs W. Indeed, during evidence in response to a question I asked, Ms Clarkson confirmed that in her view the grandparents now met the Fostering National Minimum Standards (“NMS”) and there would be no foreseeable bar to them being approved as foster carers for the children. Accordingly, the issues in the case were relatively narrow, as what was going to happen to the children and with whom they would live being agreed by all parties.

In addition to the live evidence and submissions there is a full court bundle which I have read. I will mention that the children’s social worker is a Mr Christopher Pearson. No party sought for him to give live evidence but I will comment that I have found his written evidence particularly useful.

I have considered carefully the following case law, which I shall set out my understanding of in some detail.

This appeal followed a final (welfare) hearing in which the local authority concerned had sought a supervision order.  Throughout the proceedings the mother and child had remained together in a series of foster placements and then independent living.  The circuit judge made a care order but on the basis that her view, shared by the child's guardian, was that the child should remain with her mother but that the local authority needed to share parental responsibility. The local authority appealed.

The following key points can be summarised from the Judgment of the Court of Appeal:

A very useful summary of the statutory and regulatory differences between Supervision Orders and Care Orders are set out in detail at paras 47-60 and I have considered all of them carefully.

Care proceedings were issued in respect of Child A (18 months old). At the final hearing, the judge gave a 'lengthy and thorough' judgment. She determined that threshold was crossed on the basis of risk of harm and concluded that there were only two realistic options: placement with the paternal grandmother (PGM) or placement for adoption. On a narrow balance, the judge determined that the best outcome would be for Child A to be placed with PGM under a care order (but with a higher than usual number of statutory visits, including unannounced visits and likely for longer than 12 months).  However, that could not happen because the LA had refused PGM's application for approval as a foster carer. The judge deferred her final decision for PGM to be re-presented to panel with disclosure of her judgment.  At panel the social workers did not advance the court's assessment but instead contested it. Panel refused to approve PGM and the agency decision maker (ADM) accepted their decision. The court reconvened and heard further oral submissions. The LA argued for a care and placement order, now supported by the Guardian, on the basis there was no alternative. The parents and PGM invited the court to consider an SGO, or a s.8 order and supervision order, or the making of an interim care order or care order, but not a placement order, as a mean of putting further pressure on the LA to change its plan.  Making a placement order, the judge noted that her findings ruled out any placement with the PGM, unless such placement could be bolstered not just by a care order, but by increased LA vigilance. As the LA declined to approve PGM as a kinship foster carer, the judge concluded that she had 'absolutely no power to compel them so to do'.  PGM appealed and issued judicial review proceedings.

The following key point can be, in my view, summarised form the judgment of the Court of Appeal:

In the case before me, for reasons already explained and for which I am grateful to the local authority, the difficulty summarised at paragraph H above did not occur in this case.

During evidence and in submissions the local authority referred to the shorthand of ‘the least interventionist approach’ which of course engages with all those matters set out within the case law above and is an embodiment of the need for state intervention not only to be justified by reason of the welfare interests of the child but that the level of state intervention is also so considered in that context. I also accept the general proposition that it is a serious matter requiring specific justification to impose upon a local authority an order it does not want.

Likewise, if I disagree with the conclusions of the Children’s Guardian, I must specifically justify and explain such disagreement.

I will also add that in considering the differences between supervision orders and care orders I have paid careful attention to the regulatory duties and consequently re-read both the Fostering Services: National Minimum Standards and Family and Friends Care: Statutory Guidance for Local Authorities, both published by the Department of Education, to which I referred both in evidence and during submissions from the Advocates.

As recorded above Child A and Child B have been living with Mr Y, their father, since November 2017. They also currently live with his mother. There have been many positives to the placement, not least the relationship between the children and their father which is regarded as flourishing. He has worked with the local authority to the best of his ability and when there have been concerns about the care the children have been receiving he has responded cooperatively. The parenting assessment of him contains many positives. This is how Mr Pearson described the situation in his final statement of evidence [C143]:

“Y has evidenced he is able to meet Child A and Child B’s needs with support, however it is apparent his mother (with whom he presently lives) assists with the children’s basic care including collecting from school, tea times and bedtimes; it is still untested if Mr Y can meet the children’s needs within his own property independently… It is presumed that with the ongoing support of his family and the local authority Mr Y will continue to provide an environment where the children are no longer exposed to significant harm.” (my emphasis)

The local authority has assisted considerably and commendably with regard to Mr Y’s proposed move to a new property, with the children, during the currency of the interim care orders. Mr Pearson prepared a position statement dated 17^th May 2018 which relates that the Local Authority has ordered bedroom furniture including beds for the children and agrees to fund flooring within the property for the children’s bedrooms, stairs and living room area. Mr Y is to obtain quotes for this to be approved by the Local Authority. The Local Authority will also assist Mr Y in making an application to the Frank Buttle Trust who provides assistance in purchasing household items and signpost Mr Y to The Big Help Project where Mr Y can obtain furniture and white goods at reduced prices. The Local Authority accepts that Mr Y has limited funds and agrees to assist him further to secure essential items. The Local Authority has also provided to Mr Y additional uniforms for Child A and B. The Local Authority allocated Mr Y a Family Support Worker (FSW) to Mr Y on 30^th April 2018.

The provisions the local authority have made thus far are a demonstration both of the high level of support the father requires and areas where there are risks inherent in his care for the children arising out of his own circumstances and needs. As the local authority have indicated themselves, his ability to care for the children in his own property remains untested.

The Guardian makes the following observations with regard to Mr Y, none of which were challenged, in terms of the facts contained therein:

“Mr Y was jointly caring for Child A and Child B when they first became known to the local authority in 2014 due to poor home conditions and therefore it remain to be seen whether Mr Y can provide a clean home for his children. When I visited Child A and Child B at school on 24^th of April 2018 I liaised with [their] Learning Mentor and Safeguarding Lead, who expressed that whilst the children were happy and settled with their father their hygiene and appearance required improvement.”

“It is my view given the history of poor home conditions, the children’s inadequate hygiene, Mr Y’s awareness of [the mother’s] poor parenting and his lack of intervention, coupled with his limited experience of being a sole carer, that there are risk factors associated with the children being in their father’s care … I consider that Mr Y will require one to one support around routines and boundaries, budgeting and meal planning, home conditions, and the children’s hygiene and diet. The right intervention will ensure the stability of the placement long term.”

Then there is the issue of contact between all four children and the maternal family members. The Local Authority proposes that the mother and Mr Z continue to have supervised contact with all four children. At the hearing on 15^th May 2018, the Local Authority supported the Guardian’s recommendation that the contact between the mother and the children should be monthly. With regards to Child A and Child B, they propose that this will be reviewed with a view to contact being supervised by the family although precision as to which members of the family and what circumstances is somewhat lacking in the local authority evidence. If the extended, maternal family wish to have contact with Child A and Child B then a risk assessment would be undertaken to include Child A and Child B’s wishes and feelings. It is asserted that Mr Y should ensure that sibling contact is facilitated and all parties agree that the sibling relationships are strong and should be nurtured. The Children’s Guardian puts it thus “Emotional security is key for these children as well as bonds they have with their important family members, not least each other, being actively promoted and nurtured.”

Of course, if a Child Arrangements Order and Supervision Orders are made the responsibility and decision-making power with respect to contact arrangements will rest solely with those with parental responsibility unless there is a court order regulating contact. I accept that under the auspices of a Supervision Order and Child in Need Plan the local authority will offer guidance and support, however decision making will remain with the parents.

It is currently untested as to whether Mr Y can shoulder the responsibility of decision making, supervision and promotion of inter-sibling contact as well as moving home in limited circumstances and maintaining appropriate standards for the children. Inter-sibling contact will require communication and co-operation with Mr and Mrs W, something that until now has not been necessary on either part and therefore also remains untested.

The mother, to quote the Children’s Guardian “suffers with depression and anxiety and has a history of drug misuse… [the mother] agreed with my observations that she was on a merry go round in terms of her mental health and drug misuse…”

Mr Y’s ability to negotiate such circumstances with the mother (the only other person with whom he will share parental responsibility in the absence of a care order) remains untested and presents obvious and tangible risks.

Ms Clarkson in evidence was keen to assert that it would not be right to impose a care order on the local authority solely so the statutory duty to promote familial contact was engaged. I entirely agree. The question is one of risk to the children, including the risk that contact with important relatives (including siblings) will not take place in appropriate and safe circumstances, in the context of welfare. It is a factor to weigh in the balance, along with the other circumstances of the case.

Finally, there is the issue of the children’s needs. Child A and Child B are the eldest children and they have seen and experienced a lot for their young age. Their formative years were neither stable nor consistently nurturing. The social work chronology, the evidence of the Specialist Safeguarding Nurse and the police disclosure together with numerous references within the court bundle demonstrate the numerous incidents with an inevitable negative impact on the children. Child B demonstrates behavioural difficulties and Child A’s relationship with her mother is described as ‘difficult’. There is a real possibility that the children will require a higher than average level of support and indeed care, consequent upon the poor foundation they received until they were placed with their father.

At its core, a supervision order enables the local authority to “to advise, assist and befriend” the supervised child. At its core, a care order gives the local authority shared parental responsibility which is, in reality, an overriding ability to ensure and indeed if necessary impose conditions to necessary to ensure welfare of the subject child (whilst at all times bearing in mind the need to work in co-operation with parents where possible).

My assessment of this case at this time is that there are obvious and significant medium terms risks that require care orders for Child A and Child B and that care orders are the proportionate orders. The matters I have set out above in my view amply demonstrate why this is the case. The risks inherent in the transition to the father’s sole care are obvious. The risks inherent in the contact arrangements being ultimately the sole responsibility of the father and mother, both in terms of whether that contact takes place safely and whether it negatively affects the stability of the placement, are obvious. The need for inter-sibling contact is obvious and agreed but the ability of the proposed long-term carers to promote the same is untested. The likely needs of the children for medium term ongoing monitoring and support are obvious. I agree entirely with the assessment of the Children’s Guardian.

I have chosen the words ‘medium term’ carefully. It embodies my assessment that it is very likely that local authority involvement will be required at some, hopefully diminishing level, for a period of time – very likely in excess of a year. However, I do not envisage and certainly hope that working together the local authority the father and indeed the mother will build a foundation for the children over the coming months that will enable an application to discharge the care orders at an appropriately early time during the children’s minority.

Mr and Mrs W were the subjects of an initial viability assessment conducted by social workers whom I understand to be from the social worker fostering team and the first allocated children’s social worker. That initial assessment concluded negatively i.e. that the assessors did not consider them to be appropriate potential carers for Child C and D. That assessment is dated 20^th December 2017.

However, on 25^th January 2018 Mr and Mrs W attended Court with a solicitor and the local authority agreed (it being recorded on the order of that date) to carry out an SGO assessment of Mr and Mrs W. It was recorded on that order that Mr Pearson was the newly allocated social worker and therefore an Independent Social Worker assessment of Mr and Mrs W had been agreed not to be necessary as Mr Pearson would be looking at them afresh.

I had before me a copy of that SGO assessment, carried out by Mr Pearson. It is completed on the “The Skills to Foster Assessment” form provided by the Fostering Network for family and friends/connected persons assessments. That document has been formulated specifically so that it can be used for a number of purposes, ranging from a viability assessment, temporary foster care approval, full foster care approval, SGO assessment and assessment under for care under a Child Arrangements Order. It is a physical manifestation of the fact that there is considerable overlap between the various assessments. Only the box indicating “Suitability to be Special Guardian” is checked, presumably on the basis that the viability assessment had indicated that Mr and Mrs W would not meet the National Minimum Standards for Fostering.

I will comment that I have a fundamental issue with this approach which I believe arises out of a misunderstanding by this and many local authorities as to the purpose of The National Minimum Standards for Fostering (“NMS”).

Their purpose is in fact defined quite clearly under the heading “Legal status of the standards” on page 4. It says:

“… [The NMS] aim to enable, rather than prevent, individual provider to develop their own particular ethos and approach based on evidence that this is the most appropriate way to meet the children’s needs. Many providers will aspire to exceed these standards…

…

The standards apply to fostering services. Where a standard places an expectation on a foster carer, this should be interpreted as an expectation on their fostering service to support the foster carer to meet the standard.” (my emphasis)

It seems clear to me that the NMS are not a means by which potential foster carers should be excluded as being foster carers without at least first considering whether the potential carers can be supported to meet the standard purported to be ‘failed’ by that proposed carer. Indeed, both viability and full assessments that approach the question of children’s placements with relatives and connected persons from the perspective of first asking the question “Do these carers meet the Fostering National Minimum Standards?” is, in my view, answering the wrong question at the wrong time. The ethos behind and basic questions that should be asked and answered by such assessments must surely be:

Only then, having answered the above questions, do the National Minimum Standards become relevant and engaged thus: Do the proposed carers meet the NMS? If the proposed carers do not meet them, can they be supported to attain the standard?

Failure to approach the matter in this way leads to a perverse result.

The NMS are in place to promote the welfare of children in foster care. If foster carers (or the service) do not meet the standards then usually that is directly relevant to the welfare of the children that may be placed with them. For example, if the fosters carers have shown themselves unable to protect children from “abuse and other forms of significant harm” they do not achieve standard 4.1. That would of course be highly relevant to the welfare of the children.

The viability assessment in this matter concluded, for reasons I will set out later, that Mr and Mrs W did not, amongst other things, meet standard 4.1.

However, because the potential carers have failed the NMS they are excluded from becoming foster carers and indeed being assessed further as foster carers. However, they are not excluded from being assessed as Special Guardians.

I referred to this being a perverse result for two reasons:

How can it be correct that the statutory and regulatory structures underlying both the making of Care Orders and Special Guardianship Orders are interpreted and implemented such as to lead to the result that placements where there may be greater risks to the welfare of a child in those placements can only be subject to the order that provides for the lesser ability of the state to monitor and promote that child’s welfare?

This all flows, it seems to me, from asking the wrong question first, which is what has happened in this case.

The conclusion of the viability assessment is as follows:

“The family have had significant involvement with social care. Mrs W and her siblings were in the care system and Mrs W’s children were subject to Child Protection plans due to domestic violence, which her children were exposed to. Albeit, as adults, [another child of Mr and Mrs W] and Mr Z both display violent behaviour. Further information is required from [another local authority] to clarify missing pieces of information, where Mrs W appeared very vague in her responses.

Mr and Mrs W and [their eldest daughter] have all colluded with Ms X and Mr Z and failed to protect Child C and Child D from further harm. There is evidence that X and the children have stayed with Mr Z on a regular basis from Christmas Day 2016 until May 2017 when Mr Z started a new relationship. Both Mrs W and Mr W did not inform the social worker despite Mr Z being on a restraining order for physically assaulting X. Thus not being able to meet Standard 9.1 (National Minimum Standards) – “Children are supported and encouraged to maintain and develop family contact and friendships, subject to any limitations or provisions set out in the care plan and any court order.”

There is also evidence that Mrs W was aware of Mr Z’s violent behaviour towards Ms X prior to the incident [December 2017] and again did not inform the Social Worker or the police, hence prioritising her son, Mr Z over the safety and welfare of her grandchildren. Thus not meeting Standard 4.1 (National Minimum Standards) “Children are protected from abuse and other forms of significant harm.”

Mrs W was aware of Mr Z’s continued use of cannabis and failed to inform the social worker.

It is my view that Mrs W and Mr W do not have the ability to offer a long term commitment to Child C and Child D and put their welfare first, as it is clear that this conflicts with [their] loyalty and concerns for the parents. In addition [they] have demonstrated that they are unable to be open and honest with professionals despite significant safeguarding concerns that both Mrs W and Mr W were well aware of at the time. Therefore, given all the highlighted concerns, this has resulted in a negative viability assessment.”

As set out above, the local authority eventually agreed to undertake a full SGO assessment but, because Mr and Mrs W had ‘failed’ to meet NMS, did not consider them for approval as foster carers.

The full SGO assessment, prepared by Mr Pearson, is a careful and detailed assessment. It balances the positive and negatives of the children potentially being placed with Mr and Mrs W. It highlights further historical familial disputes and disruptions (involving both the father in this case and another child of theirs) but also notes a degree of insight on the part of Mr and Mrs W into past mistakes. It ultimately recommends, on balance, placement of the children with Mr and Mrs W.

The local authority permanence panel met on 27^th March 2018 to consider its recommendation. I have the record of the conclusions of that meeting. They reflect the finely balanced nature of their recommendation and indeed asked the social worker to carry out some further work. Further, Ms Clarkson met with Mr and Mrs W. She formed the viewed that they had gained insight into past difficulties. The ultimate conclusion of the panel is perhaps best summarised by the following sentence:

“Whilst this placement is not without some level of risk there is a realistic prospect that it will succeed and therefore a plan of adoption is not available to us.”

“A realistic prospect that it will succeed” is not the most emphatic recommendation I have seen in such an assessment and of course carries with it the corollary that there is a realistic prospect that it will not succeed. The totality of the assessments lead to this inevitable conclusion and it is a conclusion with which I agree.

Of course, the wrong question having been asked and answered early on in the assessment process, no consideration was given to revisiting the question of whether, in fact, the children’s welfare would be best met by placement of the children with Mr and Mrs W pursuant to care orders. Given Mrs Clarkson’s view expressed to me in evidence that Mr and Mrs W would no longer fall below the NMS, this is perhaps disappointing.

The Guardian sets out at paragraphs 20 to 22 of her report her assessment of Mr and W and she repeated these in evidence. She considers that on balance they would be the right placement for Child C and Child D and she comments very positively on the contact she has observed. She highlights the huge commitment involved, the change to the grandparents’ lives, and the need for ongoing monitoring and support. Primarily, she is concerned that the children have not yet moved to live with Mr and Mrs W and therefore the placement is untested. In light of all the matters highlighted in the assessments and her own observations she recommends that Care Orders are made with a view to an early discharge application once the children have settled and all the predictable and unpredictable ‘loose-ends’ have been monitored, managed and resolved.

I do not find this a finely balanced decision. I am persuaded that in light of the assessments, which I have read carefully, that Mr and Mrs W are the appropriate placement for the children. However, the evidence provided by the local authority alone more than justifies the making of care orders at this stage.

The risks, which present a real possibility of coming to fruition and in some circumstances could be catastrophic for the children, are obvious. They are:

In my assessment the sharing of Parental Responsibility together with the support, monitoring and oversight provided by care orders is entirely proportionate to those risks and such orders are clearly in the best interests of the children at this time.

Like the Guardian, I hope that none of those risks come to fruition and that the care orders can be replaced with SGOs in early course.