B v M

These proceedings concern HP born in 2013. In a few weeks’ time, he will be 5 years old. For the whole of his life, bar the first 8 weeks, he has been cared for by the second cousin of the father and his partner (“the carers”). He has had not contact with his mother for four years. He has had no contact with his father except for, it appeared in the evidence, some brief telephone contact last year and the year before.

In August 2017, LA2 issued a without notice application before the court since when HP has been a ward. The authority subsequently issued care proceedings in November 2017. This inquiry, spread over six days, has investigated how HP came to be placed in the custody of the carers, and how or why he has remained there, and why neither parent has any relationship with him. That enquiry has principally involved the four main adults, the parents and the carers, but it has also involved the statutory agencies of the local authorities who have been involved more or less continuously since HP’s birth.

There is an avowed acceptance on behalf of each party that each has contributed, and bears a responsibility for, the current situation as indeed I find they have, but there is considerably less agreement on precisely how and where that responsibility falls. HP believes his carers are his parents. He believes that their children are his siblings. He has absolutely no knowledge at all of, and therefore obviously no relationship with either of his parents.

My first involvement with the case was on 6October 2017. There had previously been some debate about the correct application before a number of Judges of the Division. There was enquiry about the parents whose whereabouts were unknown. At that time, the local authority and the guardian were represented and the male carer appeared in person, unrepresented. Happily, because of the issue of the care proceedings, shortly after that and despite my exhortations to the Legal Aid Board in the wardship proceedings, the issue of representation became academic, representation being resolved by the local authority’s application, their stance now set out more fully in the care application was that the carers had unlawfully refused to return HP to the care of his mother and had actively taken steps to prevent her from maintaining contact with her son. These are strong allegations.

The physical manifestation of that perspective was that having never apparently questioned the care provided by the carers (it is not now questioned either), the local authority, having for many months, indeed over a year in one instance, effectively left the carers to their own devices (at least in 2015), started making visits again to check on the welfare of HP. The relationship between the carers and the applicant local authority plummeted, it was already poor, but by that stage clearly reached rock bottom. There was not just a lack of mutual trust but I am sorry to say there was some relatively unbridled hostility. It manifested itself in the approach and actions of the LA2 which was tunnel visioned, intent apparently on immediately establishing direct contact with the mother, and disregarding any other view to the contrary, including that of the courts. It led to some fairly difficult exchanges in those early direction hearings between the bench and counsel. It is a long time since I have encountered such an unhappy, blinkered and partisan approach. Of course, the reaction of the male carer who was the person who at that time was attending court, who like his partner is something of a force to be reckoned with, was predictably challenging and uncompromising, and understandably hostile. It was, on every level, an unhelpful development.

Very fortunately, by 2018, the legal representation of all the parties had been clarified and the issues for the hearing have been approached in a much more sophisticated way. It has been less partisan, although inevitably there are divisions, and the issues, there are many

Before turning to the background and the evidence, I wish simply to record the legal principles. The applicant applies both in wardship and in care. This is a fact finding hearing. It is not now suggested, as I understand it, that the threshold triggers are not met. I apply the principles set out by Baker J, as he then was, in Re L and M (Children) [2013] EWHC 1569 (Fam). I shall, however, at the conclusion of this judgment give further consideration to the issue private fostering.

The situation for HP is unusual and the ultimate welfare decision is going to be a difficult one. It might, depending on the factual matrix, be difficult to justify on welfare grounds nuclear changes to his care arrangements. The simple fact remains that both authorities who were involved with HP right at the outset could have avoided the process which the parents and the carers have had to go through now. A number of possibilities arise. It is correct that the first local authority, LA1, was suggesting to the mother effectively a section 20 accommodation but what, I ask myself, of section 17 of the Children Act?

Had the proper principles been applied and followed either local authority could have considered, in relation to LA2, probably should have issued an application under section 38 of the Children Act. Not one but two authorities at least failed to apply their minds to the provisions and guidance with regard to private fostering. They seemed, indeed notwithstanding the issue of proceedings, having regard to the witnesses I have heard in evidence, possibly still seem, unaware of the extent of their responsibilities that are placed upon them. Had they done so, HP’s circumstances would have been investigated and established in the first few months of his life. He would not now be facing the very difficult path which, inevitably, results from this dispute. It would have established for him a clear future. It would have maintained the parties’ relationships, and the lost opportunities, and there have been many, all occurred because neither local authority applied the principles which are straightforward and easily understood.

HP’s parents are from Eastern Europe. They arrived in England when the mother was just 18 seeking work in March 2013. It was understood by the mother that the father had work, but that was not borne out. Their early time in this country was unsuccessful and by the time of HP’s birth, they had failed to establish themselves. They had no money, they had no effective work, they were homeless. HP and his mother were discharged from hospital in June 2013 they having been kept there a little longer because of their destitute circumstances. They sought refuge in various places. Their applications for temporary and emergency housing sometimes were granted, but ultimately it failed.

By July 2013, when HP was only 5 weeks old, the local authority offered an emergency foster placement for that night. HP and his mother spent the night in a refuge and throughout that period, the parents, the mother in particular, sought help on a number of occasions. They were, in short, quite destitute. There is no suggestion other than HP was properly and well cared for by his mother, but it is difficult to imagine a more desperate situation.

Ultimately, LA1 deeply anxious about the circumstances being provided for HP, made rather more assertive suggestions about accommodation into care. That precipitated, or appears to have done, the father contacting his second cousin, who also lived in the United Kingdom to care with his partner for their very young baby. So it was I think the very same day in July 2013, that HP, together with a very few possessions, was handed over to the care of the cousin and his partner on the pavement in Westminster. The two women were strangers. They had not previously met. Since that time, HP has been cared for ever since by the female carer.

The evidence suggests that the mother saw HP on a couple of occasions before the fateful meeting in August 2013. On that day, the four adults attended Social Services at LA1, and there entered into a private fostering agreement. The parents confirmed that HP’s living arrangements would extend beyond 28 days but could not say how long. It is clear that the intention was that they would look after HP until the parents had sorted out their financial and housing situation. That arrangement was notified on to LA2, the applicant in this case, where the carers resided. I say immediately that it is self-evident from what occurred that day and since that almost none of the necessary requirements and regulations were complied with.

Almost immediately, and in my view a sign of things to come, the parents, no doubt particularly swamped by their practical and other arrangements, had very little to do with HP at all. The mother, as I say, had seen HP on a couple of occasions before August (and had had some help from the female carer in preparing a CV). However, after HP was handed over, she saw HP on no more than a handful of occasions. There is some dispute, though it is not heavily contested, as to how many, but the evidence suggests that the mother saw HP on five occasions over the next year. After the summer of the following year, she never saw him again, nor sought to do so.

In any event, importantly, the parents failed to attend the absolutely vital meeting arranged by LA1 and the carers in August. By mid August, although this has become a criticism of the carers, it is evident that both they and the authority itself were giving thought to consideration of the long-term, since it appeared that the mother had simply abandoned her baby to the cousin.

In lateAugust, it is said that the father called the carers, but they say he did not ask about HP, and indeed refused to disclose his whereabouts. The evidence suggests that there was a meeting when the mother saw HP and the carers in early September. It was on that occasion, it seems to me, that the allegation of the sum of £250,000 arose.

In late September 2013, solicitors instructed by the mother wrote not to the carers, but to the LA2, indicating that the mother was now in a position to care for HP, and that she no longer consented to him being cared for by them, she contended they were refusing to hand over his care to her. There are a number of peculiar things about that. The LA2 did not set about seeing the carers immediately, but only went to see them in early October coinciding with the social worker’s appointment to the case, and whatever the local authority’s position now (alleging that the carers deliberately were avoiding disclosure of the mother’s details), the bald fact is that on that date in September, the mother’s solicitors explicitly sent the local authority her address. For reasons which will always remain a mystery to me, the social worker did absolutely nothing about it until seven months later by which time the mother unsurprisingly had clearly moved on. It is evident that the social work recordings demonstrate requests to the carers, but ultimately, I see that as further evidence of a failure

The other unusual aspect of it is that when the LA2 replied to the mother’s solicitors, it indicated that the mother had parental responsibility, that she could remove the child at any time and, if necessary, with police support. What is curious is that at the important meeting in October 2013, whilst the social worker did not show the carers the email, she told them that the mother wished to resume HP’s care and no longer consented but, bizarrely, indicated to them that they, the carers, should set about obtaining further agreement for the care of HP. That meeting was a seminal moment in what has happened to HP from that time until now.

Events in October 2013 are now somewhat opaque. During the latter part of that period, the parents separated. The LA2 reports the carers as saying that they had not heard from the parents for several weeks. Examination of the detail suggests that that is not exactly so. The father and the male carer were it seems in some contact and it is evident, having regard to the correspondence and the case notes, that there was a line of communication at least to the father, and quite possibly to the mother also.

In any event, there is no dispute that in November 2013, the male carer phoned the social worker to say that the father was with him. The father was about to return to Poland. He consented to there being a special guardianship order and he wished to bring him to meet the social worker; such a meeting could have taken just moments. The social worker’s response, she after all maintained consistently that she was concerned, interested and urgently needed to speak to the parents, was surprising and unhelpful. She simply batted off the enquiry. She had, I think, some meetings that day and told them to make an appointment. Thus, another opportunity was lost. As predicated, the father returned to country of origin in the middle of November 2013, which is where he remains.

A theme and a question for the court to resolve is the degree to which the mother kept in touch or whether, as it is alleged, the carers deliberately failed to tell the local authority what limited information they had about her. What is evident is that there was another meeting between the mother and HP in December 2013. That, it seems to me, is the only

In June 2014, the father emailed the LA2 relinquishing all parental rights to HP. The authority seemed to think that that email was bogus though clearly it was not, and a day earlier the mother and her partner, it is accepted, turned up, unannounced, at the home of the carers and a short visit occurred between the mother and HP. There is some factual dispute about what occurred, but what is not in contest is that that was the last occasion that the mother had any contact with HP at all.

For the mother, her life developed. She subsequently started a new relationship with a different man, fell pregnant, and gave birth to her second son. In January, during the process of a short child protection enquiry and indeed the day before a child protection conference, the mother, who by now as I say had another child and was subject to a section

I have endeavoured to record the background facts from events which I believe to be agreed (they are not all agreed) in order to try and paint the background to disputes between the parties and, importantly, put them in context in relation to the contact that the parties have had with HP.

At the outset, the LA1 did not set about their enquiries correctly, or if they did, not with an analytical focus. As I have made clear, the private fostering report which only materialised during the course of the social worker’s evidence, was not completed. There was a special guardian assessment (by LA2) which recommended a child arrangements order to the carers

The carers, supported by the father, wish that the care provided by them for HP should continue. They maintain that the mother effectively abandoned her son. The mother seeks the return of HP to her care. She argues that the carers have unlawfully retained HP. She wishes the family to be reunified. What has become blindingly obvious is that the parents, the carers, and the local authority each bear some responsibility to the situation which now pertains to HP. There are fundamental issues at large which will require later determination. In broad terms, the factual dispute is, firstly, did the mother abandon HP to the care of the carers? Secondly, what role had the carers taken in relation to the mother and, thirdly, what if any responsibility does this or other local authorities have in respect of permitting this unusual situation first to develop and, secondly, to continue?

A really positive feature is that HP is well cared for by the carers. Whatever else may be said about them, no one could wish for stronger advocates for a child. They clearly care deeply for him. They clearly are strongly committed to him and they care for him well.

I have heard from a number of social workers. I shall not refer to all of them in evidence. The first social worker (from LA1) was the person responsible for the signing of the private fostering agreement in early August 2013. She became aware that the arrangements that she was endorsing had already come about some days before, in fact, I think, in lateJuly. This was the first of a number of occasions when the statutory authorities, perhaps understandably reacting to circumstances that were presented to them, failed to engage in any sensible enquiry. There was none in respect of both the carers or of the mother’s circumstances. I do not understand why there was not some exploration, for example, about their statutory duties under section 17 to assist the mother and the father. They could have done significantly more. Not for the only time was the authority passive, even supine. They acted as little more than a facilitator and then, as far as I can tell, passed the case over to the current authority.

The most vital document, the incomplete fostering report, inexplicably, only surfaced during the evidence of the next witness, the social worker (from LA2), allocated the case in September 2013 and who held case responsibility until March 2015. She, like the previous witness, seemed unaware of the extent of her statutory duties. It was not, after all, until 2017 that, realising the true impact of the situation, that proceedings were finally instituted. I am afraid I have concluded that much of her recorded activity was little more than “going through the motions”. I highlight four areas which, because I am critical, I have now received further submissions on this point from the authority, which I take into account.

When the social worker first gave evidence, she appeared to be confident, clear, and in control of the factual matrix. She was after all, an experienced social worker, based in the kinship team, and responsible for supervising both care and special guardianship assessments, but I became increasingly troubled by the content of her evidence. Her first visit to the carers was, as I have recorded, in October 2013 by which time she had received the communication from the solicitors instructed by the mother withdrawing her consent. All the warning lights should have been flashing. She says that she was “uncomfortable” about the private fostering arrangement. She did not show the carers the email, but did tell them that the mother no longer consented.

Why, I ask myself, did she therefore, if she was uncomfortable about the arrangements and, in any event, as the authority had comprehensively failed effectively to comply with any of the regulations, did she then suggest to the carers that they should go about trying to obtain the mother’s further consent? She says that the carers claimed that they did not know the whereabouts of the parents. That may or may not have been the case since the parents moved from place to place but the fact remains, and this is the second matter which I am concerned about, that if the social worker was so interested in locating the mother as she said she was, why on earth, having received the communication from the solicitors in late September where the details of the mother’s address are so plainly set out, did she not do something about it? It was only the following year, seven months later, did she finally attempt to write to the mother in late April 2014. It is a total mystery to me why months and months elapsed in a process about which I simply do not have a clear understanding. Unsurprisingly, when she did write several months later, the mother was no longer there and therefore the opportunity had been lost.

Those two failures of themselves are ones which, in my judgment, may well have affected, even determined possibly, the direction for the rest of HP’s life. She said that she had made repeated efforts to try and locate the parents but despite her protestations to the contrary, the evidence shows that when she was presented with a powerful opportunity to identify their whereabouts, she failed to take it. Such efforts as she did make were half-hearted and inevitably too late. Of course, she subsequently made many efforts to learn their whereabouts, but lost each and every opportunity to do so. There was I am afraid, no sense of focus, no sense of urgency. She was evidently given various numbers in respect of the father and an address, and finally spoke to the father’s mother, the grandmother; but even that inexplicably took her 6 weeks. She also received the email in June 2014 purporting to be from “the father” relinquishing all rights to HP.

She told me that she had consistently sought detail but had been told by the carers that they did not know where the parents were and that they had no way of contacting her. The recordings certainly demonstrate that she did so, and received no information: I do not absolve them of responsibility, but on the ground the position may well have been that the carers took the view that they had done whatever they could and their perspective seemed to

The carers maintained that they had handed over, or at least shown to the social worker copies of emails which had been sent to them, they were in the carers’ language, and the female carer said the social worker was simply not interested. The social worker’s evidence was, I noted, particularly and surprisingly firm about this. She claimed to be extremely worried about the situation, she said she had never been handed and never seen the emails. Stepping back, I am unconvinced about that evidence. Having regard to her approach in relation to other aspects of what occurred, I take the view that the female carer, who does not always have the easiest manner, as part no doubt of the discussions that took place, did proffer the emails but actually the social worker, rather in line with her curious conduct generally when she was presented with golden opportunities, often first hand, to discover addresses (ibid), failed again to note the address, took the view that as they were in the carers’ mother tongue (and therefore unintelligible to her), she was not prepared to receive them. I am well aware that the female carer (whether it be the early part of 2014 or later) failed to comply with the early orders for disclosure. It is an unsatisfactory part of the evidence. By February 2014 the carers had learned how to brush off the social worker and did so.

The social worker told me in evidence that she was trying to escalate the case for the issue of care proceedings. That really obviously would have been, should have been, the correct course, and yet for reasons which I do not understand, she went on to recommend a child arrangements order to the carers.

Thirdly, and equally incomprehensibly if she was so anxious about the situation, was why, when she visited in October 2013 when the carers were at home, and the father’s sister was also present, did she not simply ask for the details of the parents? The social worker replied, astonishingly, “Well, I hadn’t got an interpreter there”. It was like Alice in Wonderland. It was, frankly, ridiculous. Both the carers speak perfectly reasonable English, the female carer especially so. It would have been a simple enquiry to try to identify where the father and possibly the mother was, but she failed to do so.

Fourthly, another opportunity presented itself in November 2013. The father was with the male carer who had called the social worker claiming, as I have already recorded, that he was leaving the jurisdiction, “I have him here. I can bring him immediately he wishes to consent”. The social worker was busy with meetings. She said to me, “Anyway, I had no way of establishing his authenticity” despite the fact that presumably he would be in possession of an identity card. It was another opportunity when she would have been able to have garnered useful information and made significant strides forward.

At each stage of her evidence, she reverted to the refrain of, “I was guided by my manager”. That may have been true, I cannot tell, but here the very fundamental statutory principles were not applied. Indeed, I am really sorry to say that she failed even to apply basic common sense.

Overall, the social worker’s approach was most surprising. It lacked depth of thought or analysis. It was disengaged in a way which was unhelpful, apparently complying with her statutory functions but failing to focus on the really basic issues that were right in front of her. If, as she now claims, she was anxious and increasingly so about the issue of private fostering which on analysis by that stage bore no examination, that anxiety did not enable her to exercise basic, sensible, professional care in trying to elicit the information which she

The mother gave evidence. She was in the witness box for a long time, it was an understandably difficult experience. Even now she is young and I take full account of the strain of the proceedings and the fact that she no doubt feels at a very considerable disadvantage, and by the sense, which was palpable from the bench, of her being almost overwhelmed. I take into account also that whilst she does speak a little English, it is not her first language and she had to speak through an interpreter.

Her evidence throughout retained a childlike quality. She acknowledged at the outset that she had made some serious mistakes in relation to her son for which she abjectly apologised, both to me but more importantly to him. Clearly, in 2013, her circumstances in England were difficult. The father had no job as he had claimed to have. Her family disapproved very strongly of him. It appears that he has a serious criminal history. Her own father was here in the United Kingdom but her relationship with him seems distant and the physical circumstances that she had to endure after the birth of HP were pretty desperate.

The agencies were trying to help the mother but she did not help herself either. She was inconsistent. There are recordings of her failing to respond to messages or calls, sometimes for good reason, but others for no reason at all. If she kept appointments, she would often arrive late. All that evidence points to the mother, life being in every sense chaotic. It is, looking back, difficult to imagine a sadder, more desperate state of affairs. Handing over her small baby in the street to a total stranger.

I confess I found the mother’s evidence over the instruction of and indeed her knowledge of what she could and could not do in September 2013 very muddled. She did not have a clear recollection of what had occurred. The involvement of the social worker clearly followed a visit to the carers, possibly the visit where both parties had exchanged or endeavoured to exchange their views in September. The mother emailed the carers on 16 October asking for photographs. The female carer replied in October, her reply was forceful and, in the circumstances, not unjustified, as to her perspective at that time. Having regard to those communications, and the two that followed later that month, the carers, whilst already really fond of HP, were exhorting the mother to grow up and take responsibility. The solicitors had written but the mother had failed to follow it through. The mother’s recollection of that period was unclear. She self-evidently felt powerless and useless. It may well be that the carers’ approach to her did not do much to engender any self-confidence either, keen that she should take responsibility for HP.

A number of assertions have been made as to the mother’s circumstances and activities at that time but none has been put to her in evidence, and I make no findings about the situation of the mother during that period. It seems to me quite simply that the mother was lost for a period of time, and time passed. The mother said ultimately, I have no doubt genuinely and truthfully, that she bitterly regretted decisions that she had taken. Now, she says, she would take different decisions. I have little doubt that is true.

The mother commented on the rather curious exchange of emails at the end of 2013 and early 2014 when she was seeking contact. It seems to me that the very different tenor of

Overall, I have considerable sympathy for the mother. She seems a decent woman. She is still very young. Her position is not an easy one. At times, she was not a good nor in my view an accurate reporter and, even now, has very obvious vulnerabilities.

I heard from the father by video link. It was not without some difficulty. There were, I am afraid to say, moments when the father appeared to verge on the surly although I suspect that was, at least in part, because of the medium for his evidence and I make due allowance for that. His evidence was not particularly persuasive. He confirmed that he had been in trouble, that he had been to prison, and had been involved in a number of serious of matters thus supporting the evidence both of the mother and of the carers.

He volunteered, certainly for my part, for the first time that he had spoken to HP on some occasions on the telephone in the summer of 2016 and in the summer of 2017. He also told me that the male carer had his details from 2017 both telephone and email and the evidence, such as exists, would support that contention. Much of the contact appears to have been through his mother with whom he was living at that time. The evidence, in any event, demonstrates and I accept it, that there was some conduit of communication between the two men for most of the time even when the father moved, as he frequently did, or changed numbers or addresses. The father was completely clear that he supports HP remaining with his carers. He does not support, for a number of reasons, a return to the care of the mother.

The female carer is a forceful, intelligent, and articulate woman. She described the scene when HP was handed over. The two women, as I have said, were strangers. She said both the parents looked very poorly. They were distressed. It was obviously not an easy decision for anyone. She knew that they might be providing care for more than 28 days, and was clear in the view that the long-term arrangements were first raised by the authority and not by her. She disputed many of the contentions which were put to her in evidence, correcting even counsel when she considered that a statement had not been put to her accurately.

She was unrepentant about the tone and the content of the October emails from herself to the mother. She said:

“I was raising her child. The mother had made no progress. The mother did not even visit her child.”

However, understanding the court might be, indeed is, to the plight of the mother at that time, it is difficult also not to be sympathetic to the views of the female carer so clearly expressed both then and now. As she said:

“The mother was a fellow mother. I expected her to behave like a mother.

Why should I make the effort? I would expect her to do so.”

Indeed, she developed her thesis by saying that she was glad that the mother was fighting. In my view, whilst that might seem odd, it was a genuine expression. It gave some explanation to her own perspectives and motives, as well as that of the mother.

She was asked why she had not invited the mother to HP’s first birthday, she said, “The mother could not even remember HP’s first birthday” and had not sent anything. She said that the mother excluded HP from her life. She reflected that maybe she could have made a greater effort as no doubt she could. She did not accept that she had misled the social worker but having regard to the way in which she approaches things, and particularly the social worker in this context, even though it was in fact to her advantage (in order to obtain legal security), she was at least dismissive and unhelpful. As I have said, the social worker’s engagement was not consistent and the carer took the view that the social worker’s job was to track down the parents and she could see no particular reason why she should assist her.

She was vigorously challenged about the change of forename but, in my view, there really is

When asked about her own conviction, she said that the conviction did not define her. There was clearly a period of ill health. She acknowledged that she possibly should have done something about telling the mother when HP was injured but at the time and even more recently did not think so. She said if communications were insensitive, that was part of her personality and she was proud to call herself HP’s mother.

This was one of a number of examples when whilst I am impressed by much of her evidence, and in particular, by her loyalty and devotion to HP, nonetheless, I was not impressed by some of her replies in relation to the detailed and careful questions put to her particularly on behalf of the mother. She was, for example, asked about the disclosure orders made by the court. She was, it seemed to me, characteristically dismissive when she said that she had “forgotten about the emails”. I was unimpressed by that; I do not think it was actually true. She did have information to hand which may, or may not have borne any fruit but she could have produced it. Where I differ is that I do not think those criticisms of the carer are as corrosive as is maintained. The female carer is a complex, dynamic person overtaken by events, certainly overtaken by her impatience either with an individual or, in this case, the parents and subsequently the local authority in particular reflecting her anger and reflected also in the anger which I witnessed and heard at first hand from the male carer at the early court hearings. As I say, I do not necessarily criticise him or her for that, but it was unhelpful.

Some aspects of the female carer are less than helpful but they do need to be put in context. She clearly loves this child. She clearly takes the view that he has been abandoned by his parents. She is a fierce defender of his best interests as she sees them, and has had to put up with, if I may say so, some pretty ineffectual and to her irritating and even perverse input from the statutory authorities. Of course, the advent of the proceedings effectively pitted the two parties against each other. I do not think she has always been entirely straight. For example, quite obviously, when she alleged that the parents consented to the current arrangements for special guardianship, that was simply untrue, it is all part of the carer’s

The male carer demonstrates many similar qualities to this partner. He is, if he does not mind me saying so, a bit rough around the edges, he is brisk and articulate, and confirms his support of the evidence given by his partner with whom he is clearly completely committed. I was equally anxious about his evidence in relation to some aspects of, for example, the disclosure in relation to the father. I do not accept what he says about that. It seems to me when the court made early orders either, they deliberately did not engage or they were so wrapped up in their own irritation and hostility with the authority and the proceedings that they failed to be truthful. It was unhelpful but looking at the canvass overall not terminally so.

I was, however, very impressed by his evidence about his partner’s condition when their first child was born. He is instinctively and obviously loyal. He is a complex character and had a complex and empathetic understanding of her conduct and behaviours at that time. He seemed to me to be a very impressive, mature man with a very rounded perspective readily accepting that he could have done things better as clearly was the case including calling HP by a different name or, for example, when HP was injured in 2014.

He was criticised for not accepting the gift that was brought by the mother on the first day of the hearing. HP of course was not there. It was described by his own counsel, I think, as “a bit tense” which was the reason for not accepting it but, in my view, it was a most ill-judged maladroit moment to attempt such a thing. It might even be thought by some to be something of a stunt. It was something which was later remedied, but the timing was most unfortunate, it was unhelpful.

He was uncompromising in his views about the social worker (from LA2), which I judge were not without foundation. He did not express himself so vehemently about the mother but, nonetheless, the strength of his personality and of his protective instincts to HP were obvious.

These two individuals, both individually and together, are a powerful duo. I do not conclude that the way in which they have conducted themselves amounts to what has been submitted to me as alienation. I do not think that they sought to make the mother a stranger. In my judgment, the mother did that herself. On the evidence, I consider that there was a jigsaw of ineffectual social work, of the carers not being particularly keen on locating the mother, and the mother herself, who had, in any event, disappeared and was out of the way, the carers saw no reason why they should do anything about it. I do not think that that amounts to poor or, even as it is submitted, Machiavellian conduct. I have little doubt, having regard to their focus and personalities, that they did nothing to encourage it, but they saw no reason why they should, and it is understandable, in a way, as to why they should act in that way.

So, turning shortly to the schedule which I shall attach as an appendix to the judgment:

Those findings, albeit in tabulated form, should not disguise what are, in my view, some rather harsh realities of the facts of this case, harsh because of the time which has elapsed. When HP was 8 weeks old, he was handed over by his young mother to strangers and since 2014 has had no relationship with her at all. She did not persist in maintaining that bond. The mother’s visits to see HP were few. As far as I can calculate, there were possibly five in all.

The mother, who is well aware of her deficiencies and her conduct, no doubt also struggled with the powerful personalities of the carers. She sought to regain the care of her son by the letter in September 2013 but did not follow it through. The only communication subsequently was in October when she asked for a meeting and a photograph of HP. That no doubt precipitated the 3 emails in October. Those communications are pretty forceful but I do not agree are insensitive. They are very direct, but in my view, they needed to be.

One of the October emails particularly reflects a specific timeframe and a need for

I do not find that any of the conduct on behalf of the carers amounts to alienation in a real sense, that is to say a deliberate plan to set apart this child from his mother. The mother did it herself. She returned to country of origin in January 2017 and she was, even when her whereabouts were known, somewhat difficult to pin down. The mother recently has gained more strength, she registered HP’s birth in country of origin and indeed has got nationality in that country for him in January of this year notwithstanding the fact that he was subject to a wardship order, and also a child arrangements order in favour of the carers.

In my judgment, far too much has been read into HP being known by a different name. I have already commented on it in my findings.

After July 2014, the mother made no effort at all to contact the carers. They of course made no effort to contact her either, but the mother made no effort additionally to contact those that might have assisted her, whether it be the police or, more particularly, the local authorities. A situation has been allowed to develop for which, as I have said at the outset, each party is responsible from a welfare perspective. The mother has effectively faded from her son’s life and now for four years has had no contact with him at all.

Each local authority bears a responsibility. That responsibility is that it should have addressed its mind to the statutory principles and criteria which are not difficult to understand. Had it done so, this situation would not have arisen. LA1 could have accommodated HP under section 20. It should, in my view, probably have assisted the mother under section 17 and, in any event, subsequently the proper course for LA2 having

I am especially grateful to Mr Larizadeh QC and Ms Perry who have provided some very helpful information in relation to private fostering. As there has appeared to be a lack of understanding about the principles for social workers to apply, I propose to set out the statutory guidance framework here.

a child under the age of 16 (under the age of 18 if the child is disabled)

who is cared for by a person who is not a parent or relative of the child (as defined by CA1989), and

that person is not someone who has parental responsibility for the child, and (iv) the private foster carer looks after the child in their own home

A child is not privately fostered if:

The importance of conducting a full assessment:

Key points from the Guidance

The purpose of the CA 2004 amendments and associated regulations was to strengthen and enhance the private fostering notification scheme. Along with the national minimum standards they are intended to focus local authorities’ attention on private fostering by requiring them to take a more proactive approach to identifying arrangements in their area.

There is a need for local authorities to take a much broader approach to private fostering by engaging with local communities and private foster carers and developing a much better understanding of private fostering arrangements and good practice in this complex area.

Page 5 of the guidance draws a contrast between the carer providing day-to-day care and the overarching responsibilitywhich remains with those who have PR. It is the duty of LAs to satisfy themselves that the welfare of the children who are privately fostered is being satisfactorily safeguarded (by the children’s parents).

Page 21 of the guidance [3.12] states that when parents with PR fail to exercise their responsibilities, e.g. by failing to keep in touch, the social worker should try to locate them and find out if there is a problem and take action if necessary. Where parents cannot be contacted over a sustained period of time, the LA should consider the extent (if at all) they should exercise their functions under the CA 1989.

Page 8 of the guidance [2.9] states that LAs are under a duty to ensure advice and guidance is provided to private foster carers throughout the arrangement. Furthermore, when a placement is no longer viable or prohibited, parents may need advice on what alternative arrangements can be made for the care of their child.

Page 24 of the guidance [4.7] the duration of the arrangement should be reviewed with the private foster carers on every visit thus preventing drift. The intended duration of the arrangements needs to be understood and agreed between the parents and the carers ideally in writing.

Page 34 of the guidance [4.51] the LA should continue to assess its duty to provide financial assistance.

Local Authorities must appoint an officer to monitor the discharge of functions under Part 9 of the CA 1989.

Chapter 4 of the guidance places a duty on local authorities to complete an assessment of the suitability of all aspects of an arrangement 42 working days from notification or as soon as the outcome of CRB checks are known whichever is the sooner. The Framework for the Assessment of Children in Need and the Families (2000) is to be used as a guide.

The local authority enquiry process should provide opportunities to enable a parent or prospective carer to decide that a private fostering arrangement may not be the best was to meet the child’s needs.

All aspects of child care require planning and scrutiny by the relevant local authority. In particular there must be enhanced CRB checks conducted in respect of the carers.

Local authorities may need to give advice and support to parents to enable them to make alternative arrangements where in all the circumstances of the case the LA considers that it is not appropriate for the child to be privately fostered.

The child should be seen alone on each visit.

There is an obligation upon the local authority to keep records that record the basis for a clear and common understanding of the plan for the child, agreements reached, decisions taken and the reasons for the and arrangements made.

International aspects are dealt with in Chapter 8 of the guidance. A parent of a child who is privately fostered can arrange for his return to his own country from the UK even in those instances where this is in opposition to the wishes of the child himself or in opposition to the wishes of the private foster carer. It is therefore advisable for local authorities at the outset of the arrangement to clarify the plan for reunification with a parent outside of the UK. ¹ The LA is also under a duty to ascertain the child’s immigration status.

Alternate ways of providing emergency or other accommodation:

Section 20(1) CA 1989 creates a duty for local authorities to accommodate a child if they appear to require accommodation as a result of one of the four sets of circumstances outlined in s 20(1)(a)–(c).

Section 17 CA 1989 provides another route.

Section 38 CA 1989 provides the obvious alternative route of an interim care order.

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –

to safeguard and promote the welfare of children within their area who are in need; and

so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.

Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.

For the purposes of this Part a child shall be taken to be in need if –

he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

he is disabled.'

Section 17(6) addresses the issue of accommodation. I note the guidance set out by the

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