A v B, C, D and the Local Authority

I am concerned with E, date of birth [redacted], who is four years of age. His interests have been represented by his Guardian, F, who instructs Ms O’Beirne, solicitor

The application for discharge of the care order dated 9 January 2024 is made by the father, A, who has been represented by Ms Lenart of counsel. The paternal aunt and uncle with whom the child lives, and with whom all agree he will continue to live, are B and C. They have represented themselves throughout these proceedings.

The mother, D, has only just started engaging in the proceedings due to being incarcerated and her whereabouts being unknown. She has not seen her son since 22 June 2021 and sadly he will have no knowledge of her. She is represented by Ms Gilmartin of counsel. Unfortunately, the mother is not present today, saying that she has outstanding appointments that she must keep, after being released from custody, such as attending the DWP in respect of her benefits. It is unfortunate that she is not here as it was hoped that she would be able to meet with the aunt and uncle, who I know were keen to introduce themselves to her so going forward, when contact develops, they would each have an understanding of who each of them were and there would be a degree of familiarity which would hopefully make managing the arrangements easier.

The Local Authority, who share parental responsibility with the mother and father, is [Redacted], represented by Ms Targett-Parker of counsel. The current social worker is G.

All parties agree that E, shall live with the paternal aunt and uncle under a Special Guardianship order. Whilst a support plan has been the subject of much correspondence and negotiation, all parties now agree the terms of the said plan. The parties also agree that the father shall have unsupervised contact with his son, on a weekly basis for a minimum of six hours and with any additional contact being agreed with the Special Guardians. This can be recorded on the face of the order.

The mother seeks to recommence a relationship with her son, recognising from her position statement that this will be a gradual and possibly lengthy journey, not least because of the significant time that has passed since she last saw him, but also because he calls the paternal aunt his mummy, and he requires some age-appropriate life story work in the form of ‘family trees’ to help him understand his background. This will be undertaken by the Local Authority in consultation with the aunt and uncle and I suspect that it may take a little time, not least because E, has had a number of placement changes in recent months and I would be concerned that if information is not shared on a gradual basis, he will be fearful that he will be moved from the care of the aunt and uncle again, with whom he is incredibly settled. Such life story work will commence before indirect contact with the mother begins.

In respect of the mother’s contact, that has largely been agreed today. Within the revised support plan, it is detailed that there is going to be indirect contact, every two months between the mother and child. There is then going to be a risk assessment after approximately 6 months of indirect contact, undertaken by the Local Authority, to assess whether contact can move on to becoming direct, albeit supervised. If that risk assessment, which will include drug and alcohol testing of the mother is positive, then the contact will proceed to supervised contact which will take place every two months at a contact centre, near where the aunt, uncle and child reside. After 12 months and a further risk assessment, the aunt and uncle will be responsible for supervising the contact.

Today, despite her absence, the mother has invited this Court to make an order for, unsupervised contact on one or two occasions a week at the end of the 12-month period of supervised contact. I have already indicated in court when that was raised with me, that that was not something this Court would order, and I will deal with the reasons for that briefly in due course. I should add that no party supports the mother’s position in respect of the proposed automatic move to unsupervised contact nor its frequency, with the Guardian making the point that it is very early days and it would be much better for this child if there was a degree of flexibility in respect of contact before the local authority even considers whether there needs to be, or should be, supervised let alone unsupervised contact. That is why this court, has included provision for a risk assessment to be completed before there is consideration of contact progressing to becoming direct and supervised.

Accordingly, the issues with which this Court needs to be determined are as follows: whether a Special Guardianship order should be made to the aunt and uncle in respect of E and the mother’s contact and whether there should be a child arrangements order and the terms of any such order including whether unsupervised direct contact on one or two occasions each week should be directed. Originally there was also an application by the Guardian, aunt, uncle, and father for a costs order against the local authority, but that has not been pursued by any party with the Court’s approval and, therefore, this does not form any part of this judgment.

I should add that in addressing the above issues, the Guardian, as she has throughout these proceedings, has played an essential and intrinsic role. She invites the Court to approve the Special Guardianship order and supports the Local Authority’s position in that regard. She also supports the proposals by the Local Authority in respect of the mother’s contact, expressly opposing the mother’s request for unsupervised contact once or twice a week at the end of the 12-month period of supervised contact. The aunt, uncle and father all agree with the position advanced on behalf of the Guardian and today there has been close consultation and discussion, in respect of the content of the Support plan, such that the same is now fully agreed, with all parties recognising that it meets all of E’s needs.

The aunt and uncle are delighted to have a Special Guardianship order for their nephew. Also, they are mindful of the contact with the mother, and they are taking a very child-focused approach and wanting to support that if it is in E’s best interests. I have read the full court bundle and the additional documents which have been sent to me since the bundle was lodged. I have also been the judge who has dealt with almost every hearing since this case began and, therefore, this continuity has assisted my knowledge and understanding of the issues which have arisen during the course of the proceedings.

In setting out the background to this matter, I focus on the dates which are relevant only to E’s welfare. He had been placed in foster care under an interim care order on 22 December 2020. Mother last had contact with him on 22 June 2021. On 9 December 2021, E was placed in the care of the paternal aunt and uncle H and J, and a care order was made on 15 March 2022, maintaining E’s placement with them.

Due to H and J’s extended family and their needs at that time, the aunt and uncle in these proceedings, B and C, were positively assessed to care for E in April 2023. The family are very close-knit and spend significant time together and E was very attached to both B and C during the time that he lived with H and J. E, with Local Authority knowledge, moved to his aunt and uncle’s care in May 2023 as confirmed in an email dated 21 July 2023 from the previous social worker M. That email was to L, the supervising social worker.

He left nursery in Leeds where he lived with H and J on 19 May 2023. At this point, the aunt and uncle were living with the paternal grandmother. B and C were approved at panel on 21 June 2023, although M did not tell panel that E was in fact already living with the aunt and uncle, which he should have done. In July/August 2023, the aunt and uncle moved to their own property with E, opposite the grandmother’s house. As an aside, with the full knowledge of the Local Authority, the father exercised contact with E with whom he shares a close bond at the grandmother’s house overnight on one occasion a week.

On 25 July 2023, the aunt and uncle were approved by the ADM as being foster carers for E who was thriving in their care and with all social worker visits being very positive. The child was settled, happy and emotionally secure. On 29 September 2023, the Local Authority received a VPRF whereby the police were raising concerns about criminal activity within the paternal family and in particular complaints by N, the wife of the father through an arranged marriage, of physical assault including rape and controlling and coercive behaviour by the father towards her. A strategy meeting took place, and the child was removed from the aunt and uncle’s care with no notice being given to them. He had returned from nursery, still in his nursery clothes, and was whisked away.

Indeed, the Local Authority were unable to share with the parties or the Court the reasons for the removal until the Court directed the investigating officer, O, to attend court on 1 December 2023. She informed the Court at that hearing that it was unlikely there would be any further action in respect of the allegations against the father and such allegations did not include any reference to the aunt and uncle as they were not specifically mentioned.

The complainant made no mention either of a child living at that property. O was surprised to hear that the child had been removed from the aunt and uncle’s care as they were never referred to by the complainant and there were no risk factors identified. The investigations and enquiries did not relate to the aunt and uncle.

By 1 November, she says, the Local Authority were aware of the complainant’s witness statement and, therefore, the information could have been shared with the aunt and uncle, and indeed others prior to 8 November 2023. It was not. She further commented that if she had been the officer, she would not have issued a VPN concerning a child.

In considering the removal of E, within the strategy meeting where M, L and indeed the current social worker, G, was present, within the number of questions asked on the DASH referral form, there were no concerns expressed by any party about the welfare of the child, either in respect of witnessing any incidents or even being present in the home. Indeed, M says:

“The social worker does not think E is at immediate significant risk of harm in the aunt and uncle’s care and L agreed. The social worker shared worries were more about risk”.

Accordingly, I was, and I remained concerned as to the heavy-handed and extreme approach taken by the local authority in removing E from the aunt and uncle’s care. There was no real assessment of the impact on the child who was thriving in their care; whether alternative safeguards could be put in place or indeed whether a non-molestation order could be made in respect of the father, as it was the father against whom the concerns were raised, or indeed if any other family members could care for E because he had been in H and J’s care until he moved to the care of the aunt and uncle. He was simply placed in foster care where he remained until P was positively assessed and he moved there on 22 January 2024.

Even when a witness statement was prepared on behalf of N by the Local Authority, allegations at that time were directed only at the aunt and not the uncle, and were limited to threats to kill and financial abuse, nothing linking any harm emotionally, physically, or otherwise from the aunt and uncle to E. I pause to observe that if the Local Authority had given notice, as guidance says they should ( Re DE (A Child) [2014] EWFC 6 ], then the matter should properly have been returned to court prior to any removal, where the court may not have sanctioned removal having regard to Re C (A Child)(Interim Separation)(2019) EWCA Civ 1998. However, I accept that as I have not heard any argument in that regard , I make no findings expressly about that.

Originally the Local Authority accused the aunt and uncle of being dishonest not only in respect of the father living in the house when E was in the care, but also on the date that it is said he moved to live with them. Only through the aunt’s careful knowledge of the case and analysis of her documentation in her possession, together with various Court directions being made, did it transpire that the social worker, M did in fact know that the child had moved in May 2023 as asserted throughout by the aunt and uncle. As the Court understands, M was subsequently removed from the case, has played no further part in these proceedings and it is understood is no longer is employed by the Local Authority.

The Local Authority, properly in my view, have conceded in the witness statement of Head of Service, Q, at C549 dated 19 September 2024 that both the aunt and uncle have been open and honest and considers, that it was a lack of information shared by the allocated social worker, M, that caused the Local Authority to initially question the aunt and uncle’s honesty. I remind myself that M was employed by the Local Authority and clearly, therefore, whilst there clearly have been difficulties and misunderstandings in the management of this social worker, ultimately the local authority must take responsibility for his actions and their failure to properly manage him.

In respect of the move to the aunt and uncle’s care, the Local Authority accept that E moved in May 2023 and asserts that the social worker was inexperienced and did not have a good understanding of the kinship care assessment and placement process. The Local Authority also accept that policies, procedures, customs, and practice were not followed consistently during this time period. They accept the social worker should have received more frequent supervision and guidance.

Even on these concessions alone, the Local Authority need to vigorously assess its systems in respect of the guidance and management of social workers. By not doing so they have caused, at the very least, mistrust to develop between the aunt and uncle and the Local Authority when the latter were even denying the dates when E moved to the aunt and uncle’s care. The Local Authority need to do much better or more children will be failed.

Additionally, the Local Authority did not make such concessions at the outset and even by 5 March 2024, they were still pursuing a finding that the father had lived at the paternal grandmother’s house when the child was there. It was only when all agreed that the aunt and uncle’s contact with E should move to becoming unsupervised, due to the real bond between them and the positive contacts observed to date, did the Local Authority unilaterally, without the Court’s permission, move to overnight contact, not realising until late in the day that the aunt’s Regulation 24 placement was imminently due to expire.

At the hearing on 3 July, the Local Authority, and faced with there being no power to retain the child in P’s care, accepted that it no longer sought any findings, and the child was able to move back to the aunt and uncle’s care with Local Authority approval on 8 July 2024. Thankfully, the aunt and uncle had remained registered at the Court’s request as foster carers and, therefore, that was not problematic. For 10 months, therefore, E had been separated from his aunt and uncle.

I can well accept the resulting difficulties in the behaviour of E: anxious, fearful of being removed and feelings of insecurity. In essence, he was removed without notice from his main carers, and it has been accepted, when one looks at the contact logs and indeed the observations in meetings, that he has sorely missed them. The case has moved full circle with ultimately no findings sought or made against the aunt and uncle, not as a result of a hearing or court order but through Local Authority concessions, whilst in the middle was a little boy whose security and stability was being significantly undermined and shaken. I am hopeful with the attentive care of the aunt and uncle and the extended family moving forward that E may recover and become once again a confident, secure young man.

The Special Guardianship assessment of the independent social worker, R, at E10 dated 9 October 2024 was very positive, and E has now been in the aunt and uncle’s care for six months. The Head of Service approved the making of a Special Guardianship order on 15 October 2024. This hearing is listed to finalise proceedings and to deal with the mother’s contact as it was only at the last hearing did the mother become aware of the ongoing proceedings and thereafter sought to have some sort of relationship with her son.

Turning briefly to the law, there is already a care order in place. The Court, when considering whether to make both a Special Guardianship order and child arrangements order as advanced by the mother, must consider section 1(1) and section 1(3) of the Children Act 1989 together with 1(5). In essence, Special Guardianship orders are private law orders which provide permanence and security for children for whom adoption is not suitable but who cannot live with their birth parents. The basic legal link between the child and the birth family are preserved. However, subject to any other order, a Special Guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility. The issue of the mother’s contact and her wish to have an order for once or twice weekly contact post 12 months of supervised contact will form part of the court’s considerations pursuant to section 1 of the Children Act, particularly section 1(1), the child’s welfare being the Court’s paramount consideration and also the factors in section 1(3) to which I have had regard.

Turning now to my decision, in respect of contact to the mother, about which I have already set out my view earlier in this judgment, and after considering the welfare of the child, that being my paramount consideration and the factors in section 1(3), it seems to me that the application by the mother for unsupervised contact to be made as part of an order at this stage, when she has no ongoing relationship with the child, not having seen him for around three years and with him, importantly, having no knowledge of her, is premature.

It is accepted, and the mother, to her credit, accepts that there will need to be a risk assessment completed both after the commencement of indirect contact but also after the 12 months of any supervised contact, assuming that contact progresses as is hoped it will. Therefore, there are many uncertainties and unknowns at this stage including the possibility that the time period over which indirect contact takes place may have to be extended depending on the response of the child. Additionally, whilst one hopes that the mother makes progress in the community and does not return to the life she once led, she is embarking on a new journey, and she will likely therefore have adaptations, changes and challenges of her own to make and manage as she settles into her new life out of prison.

It seems to me that to make an order today in respect of contact moving to becoming unsupervised for all of the reasons that I have set out, namely that, there is no existing relationship between her and the child; nobody knows how the indirect contact is going to progress; nobody knows how the supervised contact is going to develop or the child’s reaction overall based upon the difficult circumstances in which the child has recently found himself in being separated from the aunt and uncle for 10 months and only recently returning to their care, and having to adjust himself to this new situation and all the emotional difficulties this brings, and with him having no knowledge of the mother in any event, it is too early to take a view, let alone reach a conclusion that unsupervised contact is something that is even viable in this case let alone in the child’s best interests. Therefore, I do not make an order as sought by the mother for the reasons I have set out.

In respect of the Special Guardianship application, I wholeheartedly approve that order being made to the aunt and uncle today. They are meeting his needs to a high standard, and he is very happy in their care. Such an order is proportionate and is in accordance with his welfare needs.

I approve the contact as set out in the support plan, subject to the slight amendments in terms of drug and alcohol testing of the mother being included. The contact, and I have no strong view either way can either be recorded on the order so that the arrangements are clear to the mother, or the amended support plan can be attached to the order. I will hear brief submissions, if necessary, on that issue. The concessions made by the Local Authority, which I have set out in some detail, should also be recorded on the order. I add that any further applications should be reserved to me due to my involvement with the case thus far. That is my judgment.