‘I’ was born on 18^th August 2003 with Hypoplastic Left Heart Disorder and required major heart surgery in both August and December 2003 at Birmingham Children’s Hospital, a specialist facility far from his home in the Isles of Orkney. Unfortunately his parents are not and never have been able to care satisfactorily for him. In the result between his birth and June 2005 he had multiple carers, including a children’s home, which has unsurprisingly resulted in significant emotional harm by way of an attachment disorder. Given that he would have future serious medical needs (indeed he was in hospital in Birmingham for an expected eight week stay when I heard the case on 30^th October), he was and remains a very vulnerable and needy child.

Given his parents’ inability to care for him ‘I’’s welfare became the responsibility under Scottish law of the Orkney Island Council (‘OIC’). As a result of a Children’s Hearing in Orkney on 5^th January 2004 ‘I’ was made the subject of a supervision requirement and accordingly became a child ‘looked after’ by OIC. As I understand it, they had a duty to account for their care to the Children’s Panel. Clearly in 2004 ‘I’ had many pressing needs but the chief one was to find him a home which could offer him care, stability and hopefully permanency.

Mr and Mrs ‘O’ live in Cambridgeshire. They are a professional couple and Mrs ‘O’ has long experience with children as a speech and language therapist. They have three sons of their own. It so happens that Mrs ‘O’’s first cousin is ‘I’’s maternal grandmother, and it so happened that they were staying in the Orkneys when ‘I’’s heart condition was diagnosed. It was to prove to be a bitter-sweet moment when on 2^nd April 2004 Mr and Mrs ‘O’ wrote to offer to become carers for ‘I’.

There were difficulties from the start. Cambridgeshire County Council (CCC) declined the request of OIC to undertake a Form F Assessment because of insufficient resources. OIC then instructed Foster Care Associates (FCA) and they duly provided a positive assessment. Mr and Mrs ‘O’ travelled to the Orkneys and on 20^th December 2004 were interviewed by the Orkney Fostering and Adoption Panel. They were finally approved as kinship foster carers on 18^th April 2005 and in June 2005 ‘I’ moved to live with them where he has remained ever since.

There were clearly going to be difficulties with OIC retaining a supervision requirement, the parents retaining certain rights, the fostering status of the ‘O’’s who lived in the area of a local authority of self-proclaimed poverty and the sheer distances involved. The Orkney Panel were very much alive to this but OIC maintained that they had the necessary experience of out-of-island placements (as no doubt they did), that they would support the placement financially and that a social worker would visit regularly. It would be fair to record that everyone involved recognised that there might well be some difficulty.

The arrangement was that a fostering allowance should be paid by OIC. The supervision requirement was removed by the Children’s Panel on 16^th March 2009. OIC then declared that they had no further responsibility to pay a fostering allowance but under some pressure have agreed to do so until the conclusion of these proceedings. They assert that all responsibility has now passed to CCC. As CCC had declined to supervise the placement on behalf of OIC (lack of resources), OIC contracted those duties to FCA who have undertaken that responsibility since. In fact in a statement lodged on their behalf OIC state “It is the view of OIC that ‘I’ has been habitually resident in England since 2005. The responsibility and rights of his parents are likely to be governed by English law.”

All this sits rather uneasily with a document provided by Gill Smee in May 2008 when she was the assistant director, children and families and criminal justice of OIC. It was made at a time when an English High Court Order had been made and Mr, and Mrs. ‘O’ had intimated an intention to apply for a special guardianship order (SGO) in England. The document continues –

“Mr and Mrs ‘O’ have indicated a wish to seek a Special Guardianship Order under England and Wales legislation. This order is not available, and its provisions do not apply to local authorities in Scotland. This would secure their rights and responsibilities in terms of day to day parental authority and decision making. Orkney Island Council’s Care Plan for ‘I’ is to secure permanence for him with Mr, and Mrs. ‘O’, and a normal family life. A special guardianship application would be supported by Orkney Islands Council. However, Mr. and Mrs. ‘O’ are not willing to make the application until they are assured of arrangements to support themselves and ‘I’ in the longer term.

Orkney Islands Council has been advised that the imposition of an order in the High Court may have made the continuation of a Supervision Requirement incompetent or in any event inappropriate. The Children’s Hearing could reasonably discharge the requirement. This would clarify Mr. and Mrs. ‘O’’s status as kinship carers who wish to secure a future for ‘I’ within his extended family, rather than foster carers acting on behalf of Orkney Islands Council. They would not require to be supervised, nor would they be entitled to continuing support from Orkney Islands Council.

However, Orkney Islands Council has provided a written undertaking to Mr. and Mrs. ‘O’ and their solicitors, that allowances will continue to be paid and that essential support will continue to be provided, whatever ‘I’’s and their own legal status. The same level of allowances (less child benefit if applicable) will be made whether or not the Hearing decides to discharge the supervision requirement and whether or not Mr. and Mrs ‘O’ decide to make an application for a guardianship Order.”

The document then outlines its commitments noting that the FCA contract is, however, of finite duration. The letter from Elaine Petch, her opposite number at CCC confirms the agreement. This is to be contrasted with paragraph 34 of OIC’s statement in these proceedings which reads –

“Various discussions took place and requests were made by the ‘O’s at the Looked After Child Care reviews which were required to be held because of the supervision requirement and/or the’O’s having to obtain foster care status in order to look after ‘I’. Promises were made at the LAC reviews which were not properly approved by OIC management, but which were, unfortunately followed up in subsequent letters to Mr. and Mrs.’O’. For example, one request was for £10,000 towards the cost of a car (which has increased now to a request for a car payment of £25,000). It was suggested to the ‘O’s that they had chosen the jurisdiction of England and had elected to invoke the English legislation and that they were within the boundaries of Cambridgeshire County Council and in law Cambridgeshire County Council had the requisite statutory authority upon which to made any form of payment.”

The position of OIC seems to be that in pursuance of their statutory duties they placed ‘I’ with Mr. and Mrs. ‘O’ as kinship foster carers. Once, however, sufficient time had elapsed for him to become effectively habitually resident in England and despite the commitments given apparently through a responsible officer, they have terminated his status as a looked after child, and disclaimed all further responsibility for him. If this position is justifiable legally (as to which I am not convinced) it is of course a huge triumph for OIC’s budget manager but a complete catastrophe for any foster parent unwise enough to rely on the word of this local authority.

But need the foster parents have worried for could they not have turned to CCC in whose area they reside? In fact CCC have throughout adamantly refused to become involved, maintaining that the legal obligations are those of OIC and not theirs and that Mr. and Mrs.’O’ should expend their energies in the pursuit of OIC. It should be recorded that there was a long dispute between Mr. and Mrs. ‘O’ and CCC (as local education authority) over ‘I’’s schooling which was resolved just before an appeal tribunal hearing. The details of this are not, of course, my concern and I record it merely as part of the background.

Last year Mr. and Mrs. ‘O’ launched their application for an S.G.O. in respect of ‘I’. On one thing all parties can agree and that is that ‘I’’s welfare demands that he remain with Mr. and Mrs. ‘O’. Moreover, all parties can agree wholeheartedly that they would support the making of an S.G.O. How then could anything go wrong? It has done and, of course, the root cause is the legal responsibility to spend money.

By section 14A(7) of the Children Act 1989 no-one can apply for an S.G.O. unless they have given written notice -

Unsurprisingly then when the matter came before me there was no report and no prospect of one. Could the court not do without such a report as not only was all the relevant information available by other means but also the application was uncontentious? Sadly not, for by Section 14A(11) it is provided –

“the court may not make a Special Guardianship Order unless it has received a report dealing with the matters referred to sub-section (8)”

The Court of Appeal have confirmed that that is a mandatory provision admitting of no exception – see RE S (ADOPTION ORDER OR SGO)(No.2) [2007] 1FLR 855. The application has thus become becalmed.

So what was the position of Mr. and Mrs. ‘O’ when this matter finally came before me on Friday 30^th October 2009? They had ‘I’ in hospital in Birmingham for eight weeks and they were dividing their time between hospital on the one hand and home, their other children and their business on the other. They had been informed that neither authority believed that they had any duty to offer even basic support let alone the extras that a child with special needs requires. Neither authority would provide the report which would enable their S.G.O. application to proceed. They could be forgiven for feeling abandoned to care for a child disowned by the state in its local authority form and they could be forgiven too if the thought ever entered their minds as to why had had taken on this child in the first place. The local authorities were present at court not to assist – in fairness they did not even make a pretence at that – but to obtain legal authority to distance themselves from responsibility for this child.

I confess that as I listened to these matters, disbelief was not the only thought or emotion that I experienced. Indeed I found it necessary to adjourn briefly so as to ensure that no wholly improper judicial observations escaped my lips. This judgment has been reserved not because the issues are difficult (they are not) but because I did not trust myself to express my views in a temperate manner. I have always had a high regard for the contribution that social workers make to the family justice system but if in fact we have reached a stage where budget needs trumps welfare then we all need to know. Hence my adjourning this judgment into open court.

In my judgment the submission made by the OIC that the duty to prepare the S.G.O. report under Section 14A(8) lies on CCC is legally correct. I have reached that view for three reasons: first, it may well be that since March 2009 this child is no longer ‘looked after’ by Orkney; secondly, by Section 108(11) it is apparent that the provisions of Section 14A do not extend to Scotland; and thirdly I accept that OIC are not subject to the compulsive jurisdiction of this court. It follows that CCC are the relevant authority under Section 14A(7)(b); in any event and for the avoidance of doubt I have requested a report under Section 14A(9) which obligates CCC to provide it. I hasten to add that I have no doubt that they will now attend expeditiously to this matter.

That may provide some slight relief to Mr. and Mrs. ‘O’ but it does not begin to address their principal concerns over support. They entered into this arrangement in good faith in reliance on the apparent assurance of OIC to support them financially throughout ‘I’’s minority. In purely monetary terms that will, I suspect, have been a much cheaper arrangement than leaving OIC to cope as best they could. Because they are honourable people committed to ‘I’, they cannot just repudiate the agreement as OIC claim to be entitled to do. They are stuck with the poison fruit of these two local authorities’ dispute. Whether it is too much to hope that other counsels will now prevail with either authority, time alone will tell, though one can sympathise with CCC in their reliance upon the 2008 agreement.

Thus far and thus far only can the court go. I propose to direct that copies of the judgment shall be provided to the Secretary of State at the Department of Children and Families and the Secretary of State for Scotland for onward transmission to the relevant Minister at the Scottish Government. I give this direction with no punitive motive in mind as I believe that each authority has made the decisions it has with a view to the protection of a finite budget. They cannot be criticised for such a step but the consequence for the foster parents of a sick child with special needs are cataclysmic. Should local authorities be given some discretion in such circumstances? Should they be allowed to honour agreements where they have been relied on even where circumstances change or the agreements had been concluded informally? Should local authorities be encouraged to assist those who foster needy children even where they believe that not every box for legal liability has been ticked? I do not know the answers to such questions and only government can provide them. Hence my direction to refer this judgment. There is a further English reason to refer which is to give an opportunity for consideration as to whether Section 14A(11) was intended to be, or needs to be, in such absolute terms. This is far from the first time that such a report has been directed, time consuming and costly as it is, when in fact all the necessary information may already be available in other forms in a case which appears uncontentious.

I wish to pay tribute to Mr. and Mrs. ‘O’ for their care for ‘I’ and for their steadfastness through all these difficulties not of their making. I dare to think that most citizens of this state would like to see them duly supported as they believed that they would be. I dare to think that many citizens of this state will feel a touch of shame that things could work out as they appear to have done in this case.