A Local Authority v M & Ors

A local authority has applied for care orders for both children. There is consensus that Y should remain in her current placement, with her maternal aunt as her foster carer, under a care order. For reasons which will be explained, the court supports this plan as entirely appropriate.

There is consensus that X should remain in the care of her maternal grandmother. The issue between the parties is how that placement should be supported.

All parties are asking for a supervision order for X. The mother is asking that the supervision order is made to support a child arrangements order. Both the local authority and the guardian are asking that the supervision order is made to support a special guardianship order. These positions are maintained despite both the guardian and the local authority being mindful of recent guidance and relevant authorities. Contained within the local authority’s final evidence in which it lists the pros and cons for making a special guardianship order along with a special guardianship order the only factor stated against doing so is,

X has been placed with her grandmother since February 2023. There is agreement that the threshold for the making of a public law order is met. Immediate return to the mother’s care can not be countenanced. If the grandmother was not a position to care for X, the Court would have to consider the making of a care order with a plan of long term fostering. If the grandmother would agree to being assessed as a long term foster carer for X, it is probable on the evidence available that she would be assessed positively in the same way that she has been assessed positively as a Special Guardian.

The situation, though, is that the grandmother has refused to be assessed as a foster carer because she flatly refuses to care for her grand-daughter on that basis. The grandmother regards herself a grandmother and will not engage in any care arrangement that undermines this. She will not tolerate the restrictions and bureaucracy that inevitably accompanies foster care. Placement with the grandmother under a care order is not an option open to the court.

The grandmother will agree to the placement being supported by whatever the Court deems to be appropriate short of a care order. In her final evidence provided to the Court, by way of a written statement prepared by the social worker on her behalf, the grandmother says the following:

The mother does not agree that X should be made the subject of a special guardianship order and argues that a child arrangement order is sufficient to serve her welfare.

The family has been known to the local authority since 2015. The parenting of both children has been significantly prejudiced by the mother’s poor mental health coupled with alcohol abuse. The mother’s conduct has resulted in emergency services involvement whilst the children have been in her care. A parenting assessment was carried out by the local authority in November 2022 following the maternal grandmother contacting the local authority and sharing her concerns that the mother was trying to flee the area with the children and that the mother was suffering. An initial case conference was convened in December 2022 following the mother telling the local authority that her home is not safe for the children. In January 2023 the mother was arrested for assault and on suspicion of child neglect and causing unnecessary suffering to a child and whilst not charged for those offences she was charged for offences relating to her conduct against the police.

It is incontrovertible that the mother has continually placed the children at risk due to her being intoxicated. This is exacerbated by the mother allowing the children to be exposed to domestic violence within the home.

As a result of the mother’s inability to care safely for the children, both of them have been removed from her care. Y is now living with her maternal aunt and uncle and it is agreed that a care order should be made for her to remain in that placement under a plan of long-term foster care. X has lived with her maternal grandmother since 7 February 2023. It is agreed by all parties, and the court, that X should remain living with her grandmother although it is not agreed how that placement should be formalised and supported.

The mother dearly loves both her children and wants both children to return to her care in due course. The local authority freely acknowledges that it is positive that the mother has obtained employment and that she is engaged with an alcohol rehabilitation service to begin to address her alcohol use. However, it is acknowledged that the mother has only recently begun to address the issues around her own behaviours and anger issues. It is also further acknowledged that the mother has been able to establish two periods of detox although unfortunately each has led to a relapse. The mother maintains that she has been abstinent from alcohol since July 2023 although there is evidence from recent events the mother was using alcohol to excess in January 2024.

As the local authority points out, irrespective of the mother’s use of alcohol her behaviour can be unpredictable and volatile although it is exacerbated when alcohol is consumed.

This court has no wish to undermine the mother’s attempts to overcome her dependency on alcohol, quite the reverse, the court accepts that the mother is wholly sincere in wishing to become alcohol free and wishes the mother every success. The mother’s acceptance that she cannot currently care for either child, again, is to be respected as a wholly child centred and focused decision and one that must be difficult for the mother to make. The fact is that the mother has an enormous amount of work to do in order to rehabilitate herself to a stage where it will be possible to sustain an alcohol free life, thus making it impossible for it to be considered to be in the children’s interests to be returned to the care of their mother. It is in this context that arrangements have been made for the mid-to long-term care of the children rather than short-term care or respite.

Y’s father has only recently learned of his parentage of Y. FY has shown great understanding for the welfare of his daughter. He had engaged helpfully with these proceedings. FY has only recently been introduced to his daughter and has shown a commendable level of commitment to her. He wishes to expand his contact as time goes on but only in an appropriate way. He supports the placement with grandparents. The court is grateful to FY for his input in these proceedings and the manner in which he has demonstrated his commitment to the welfare of his daughter.

FX is judged as being (per MARAC) a high risk perpetrator of domestic abuse and involved in criminal activity. FX has not attended this final hearing listed on 8th and 29th February 2024, however he did attend the hearing on 11th January 2024. Heis not in a position to care for his daughter. He agrees with the placement proposal for X and he sought to retain his contact with X at a frequency of once per fortnight and opposed the local authority’s proposed reduction to once per month. Submissions were made on FX’s behalf at the hearing on 8th February on the basis of previous and firm instructions that he had provided. FX is thanked by the court for his input into these proceedings.

The Court endorsed the Local Authority’s plan for FX’s contact to be reduced to once per month.

Threshold for the making of public law orders is proved: it is set out in a threshold document which will be annexed to this judgment.

The starting point is to emphasise the importance of the children receiving a full explanation as to why a decision has been made. I refer firstly to H-W (Children) [2022] UKSC 17. Lady Keegan adopted a passage derived from the judgment of McFarlane LJ (as he then was) in In re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965;[2013] 3 FCR 293:

I will firstly set out the legal framework of the various options open to the court within the statutory framework within the Children Act 1989.

Section 17: Children in Need

The last point is expanded as to the reasoning:

Regarding supervision orders the PLWG has published: Recommendations to achieve best practice in the child protection and family justice systems: Supervision orders October 2022

Local Authority guidance as to how to fulfil its obligations are set out in Working Together to Safeguard Children 2023A guide to multi-agency working to help, protect and promote the welfare of children December 2023. This provides for local authorities to have protocols for assessment of children in need and delivery of its support. The definition of support that can be provided is not exhaustive. The length of time that a child can be considered to be a child in need is not finite.

W-P (Children) [2019] EWCA Civ 1120 contrasts child arrangement orders against special guardianship orders. One of the grounds for the mother’s appeal in that case was an assertion that a Special Guardianship Order was disproportionate; a Child Arrangements Order in favour of the grandparents would have been more appropriate. In that case, there was a positive SGO assessment of the grandparents whereas the parenting assessment did not support placement with the parents. The children had previously been placed with the grandparents under a CAO which had not worked. The mother had exercised her PR over the children, undermining the grandparents which contributed to the placement breaking down.

In his lead judgment Peter Jackson LJ referred to the case of Birmingham City Council v LR[2006] EWCA Civ 1748 at [78]:

In his judgment His Lordship said,

When comparing adoption to special guardianship, in Re S (A Child)[2007] EWCA Civ 54 Wall J said:

During the parties’ submissions frequent mention was made to the concept of permanency thereby raising the question as to whether SGOs are reserved to cases where there is an expectation that the placement will be permanent. The statute does not require the placement under a SGO to be permanent. An SGO, by its nature, leans towards permanence but does not require it. Rather than being tied to the notion of permanency, the case law emphasises focusing on the needs of a child.

In C (A Child) (Special Guardianship Order) [2019] EWCA Civ 2281 Moylan LJ said:

The duty of a local authority under section 17 has been held to include a duty to an individual child, rather than just a general duty to all children. In Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)[2003] UKHL 57, Lord Nicholls opined: 

There is no doubt X would like to return to her mother. X is mature for her age, and acknowledges that it is impossible for her to return at present. X has expressed the view which is recorded in the local authority evidence. It is recorded:

There may come a time in the future when X may be able to return to her mother. In the meantime, and perhaps for years (possibly until she is 18), the local authority has identified a level of support that it concedes will be needed to support placement with the grandmother. The support is set out in the Special Guardianship support plan in the bundle. The table is in template form. There are columns headed “Present support needs” and “Future support needs”. There is a column titled “Services to be provided”. Drawing from the contents of the plan it is fair to say that the local authority acceptance of responsibility for meeting any of X’s needs and attributes is limited. This is not a criticism. It is a reflection of the role of the special guardian who must be regarded by a child as her carer primarily responsible for her needs. The responsibility placed on the grandmother is stated specifically to include schooling, GP and universal services. The local authority says that it will hold a Child in Need meeting every 4 to 6 weeks. The issue of contact with her mother is left entirely to the grandmother to support by way of supervision. Regarding contact with her father, the local authority says it will supervise this while X remains subject to a Child in Need plan. There is no suggestion that this will be a responsibility resulting only in the event a supervision order is made.

The social worker reports that X says she is happy residing with her maternal grandmother where her needs are being met. X informed the social worker that she would like to return to her mother’s care but worries her mother will continue being intoxicated and this scares her. Knowing that she is living with her maternal grandmother makes X feel safe and secure.

A child arrangement order would specify where X lives. X would have a sense of belonging; she would know where her base is and it would give parental responsibility to the maternal grandmother while it is force. A child arrangements order carries little sense of permanency; an application can be made to vary at any time. The process of applying to vary a child arrangement order would immediately involve X. As soon as an application was made to court, Cafcass would be required to carry out welfare checks and to provide the court with a safeguarding letter. Because of X’s age it would be untenable to expect Cafcass to provide this information without speaking to X. On the other hand, an application for leave to discharge a special guardianship order would not automatically lead to the involvement of a child subject to such order, as the procedural requirement for Cafcass to prepare the safeguarding letter does not apply to such applications. The application for leave would be considered by the court without X having any knowledge of the application progressing which would have the advantage of not disturbing X’s sense of security, unnecessarily.

Neither a child arrangements order nor a special guardianship order is necessarily permanent in its nature. That said, a special guardianship order certainly does have more of a sense of permanence and when considered through the eyes of a child must give the child a much more grounded sense of stability, knowing that the arrangement can only be disrupted if the court first has to find (in the case of the mother) that the mother would have to demonstrate a significant change in her circumstances. This is particularly relevant to X’s clearly stated desire that she would need to see change in her mother before considering returning to her care.

The exclusive parental responsibility provided for by a special guardianship order adds to a child’s sense of security. Children generally appreciate rules and boundaries. They need to know where they stand. This means they need to know who sets the rules and enforces of the boundaries. This is an essential element of parenting. Children who do not have rules or have conflicting or unclear boundaries struggle to progress to become functioning adults. As X grows, she will, as all children do, break rules and push against boundaries; this is a normal and essential part of growing up. Where a child is brought up by two parents, unless those parents are entirely consistent in how they set and enforce rules and boundaries, the child will learn how to manipulate and gain advantage from the inconsistency. The advantage of a special guardianship order being made, as opposed to a child arrangements order is that there will be one person making the rules and enforcing the boundaries which again will only add to the child’s sense of security. A child arrangements order would afford more flexibility and more opportunity for the mother to become involved in key decisions for X.

During the term of either order the adult with parental responsibility will have frequent contact with the child’s education providers. In order to give a child the best opportunity of taking advantage of their education it is often the case that the provider has to form a collaborative relationship with the person or people who have parental responsibility for the child. Frequently, decisions will have to be made regarding how the child’s education is to be delivered. Any disagreement between parents or others who hold parental responsibility is counter-productive to this arrangement and will lead to adverse effects on the child’s education.

Supervision orders last initially for 12 months. The addition of a supervision order would militate against the essential issue of X’s need for a sense of permanency. It would be superfluous and may even be counterproductive because it would have a time limit which may give X a sense of pending abandonment by the local authority.

If a supervision order is made X’s welfare would continue to be reviewed by an independent reviewing officer. Y and X would share an IRO. There would be a connecting thread monitoring the welfare of both children which may lead to more consistency in care provision.

If the court looks through the eyes of X I am able to state the following quite clearly:

In reaching my decision I have had regard to the law I have stated above and had particular regard to the welfare checklist in s1(3) of the 1989 Act and have placed the children’s welfare as my paramount consideration.

Since circulating this judgment in draft form Y’s father, FY has asked that the court consider issues that have arisen in respect of his contact with Y. The issue is of such concern that prior to formally handing down FY through his solicitor has issued an application that the court address the issue of contact by way of a formal C2. The application has the following details:

Upon receipt of the application, I adjourned the date for handing down of judgment from 21 February until 29 February to give the parties the opportunity to address the issues and hopefully to find a consensual solution. At the hearing on 29 February the court was informed that contact has taken place once out of a possible eight opportunities. The court was informed that on the one occasion that contact took place, Y was brought to the contact centre by her male carer who upon meeting Y’s father made evident his antipathy for FY by responding to FY civil greeting, saying, “I don’t have to talk to you”. FY was then assisted by a contact centre worker who showed FY and his daughter into the centre where the contact takes place. Unfortunately, Y became evidently distraught and distressed and the contact had to be terminated.

Through counsel, the local authority confirmed that the carers are resistant to contact taking place and are not supporting it as the local authority would wish. Having listened to the local authority the court is entirely satisfied that the social worker is doing everything she can to promote contact and to support the carers in their duty to do so. The local authority has suggested mediation between FY and the carers which it would support.

Miss Mallon, on behalf of FY, emphasised that no criticism at all is lodged against the social worker or the local authority; it is apparent that the social worker is working very hard to try to move matters forward in a child-centred way. As Miss Mallon submitted, making an order for contact on the making of a care order is extremely rare, but in the circumstances she feels she has no alternative but to ask for a contact order. The difficulty that is perceived is that following the making of the care order the social work team will change and without a robust provision being incorporated into the final order further delay would ensue, leading to Y being deprived of forming an attachment to her father at this very early stage of her development.

As I have made clear earlier in this judgment this court is entirely satisfied that FY has Y’s welfare at heart. He is a committed father with parental responsibility who wants his daughter to grow up knowing that she has a father and to develop a functional and beneficial relationship with him. The court is wholly supportive of FY’ position.

Nobody involved in this case wishes Y to be removed from her maternal aunt who is providing excellent basic care for her and with whom she is developing and good relationship. Y is very fortunate to have the opportunity of being cared for within her maternal family. Y’s carers need to understand and acknowledge that as foster carers they are employed by the local authority to provide care for Y in accordance with the local authority’s statutory obligations. It is imperative that foster carers work with local authorities and discharge their duties towards children in their care in a manner which is consistent with the requirements set out by the local authority.

On a broader point, and focusing on Y’s long term welfare, Y has an inalienable right to have a relationship with her father and that relationship must be promoted in an appropriate manner.

Having considered Y’s welfare I am satisfied that it is appropriate to make an order that the local authority ensure that Y has direct contact with her father for a minimum of two hours every two weeks. I emphasise that this provision is a minimum provision and, may of course, be extended at the discretion of the local authority and with the agreement of the father.