‘How not to embark upon, and pursue, a care case’

In the matter of A (A Child) [2015] EWFC 11: ‘An object lesson in, almost a textbook example of, how not to embark upon and pursue a care case’.

In the 2014 case Re R (A Child) [2014] EWCA Civ 1625, the president considered the post-Re B & -Re B-S landscape, stressing that ‘Re B-S was not intended to change and has not changed the law’ [para. 44] on adoption. The president’s judgment clarified that, in the wake of Re B and Re B-S, it is not right to say that an application for a placement order now has to ‘surmount a much higher hurdle’ or to exclaim that ‘adoption is over’. Rather, the president emphasised that ‘Re B-S was primarily directed to practice’ [para 56] and ensuring that sloppy practice, both by social workers and in the courts in the application of the law, must stop:

‘It [Re B-S] expressed (para 30) our:

“real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.” [para 56]’

Coming hot on the heels of the important decision in Re R is the president’s judgment in Re A, reported on 17 February 2015. This is a decision in which the president dismissed the applications of Darlington Borough Council for care and placement orders in respect of a 1-year-old child, A. The local authority and guardian are sharply criticised in the judgment, the president describing the case as ‘an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case’ [para 7]. It comes, therefore, as an apt example of how a case can become fundamentally flawed when the good practice espoused in Re B-S is not followed.

The facts

A was born whilst his mother was serving a prison sentence for offences of dishonesty and sexual offences relating to a minor. A pre-birth assessment was undertaken, which included an initial assessment of the father – which concluded negatively. A was born on 11 January 2014 and accommodated in local-authority foster care, pursuant to section 20 of the 1989 Act. The local authority carried out assessments of the father and the extended paternal family. The mother did not put herself forward as a carer for A. The local authority finally issued its care application on 16 September 2014. The local authority’s care plan was for adoption; this plan was supported by the children’s guardian. The matter was listed for final hearing before the president from 26 to 28 November 2014.

The president dismissed the local authority’s applications for care and placement orders, and ordered that A be placed in the father’s care. Having analysed the evidence, including that of the father (whom the president found to be a reliable and truthful witness), the president concluded that the local authority had failed to prove that threshold was met and that A’s welfare required adoption and that nothing else would do.

Three fundamental principles

The president sets out what he describes as ‘three fundamentally important points’ [para 7] which are too often overlooked in the presentation of applications for placement orders. These 3 points run through his criticism of the local authority’s evidence, which takes up the majority of the judgment (spanning paragraphs 54 to 92).

The first point relates to the matter of fact finding and proof. He splits this into two important practical and procedural considerations:

1. The local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove.

2. The second consideration goes to the formulation of threshold and proposed findings of fact. Much of the judgment in Re A looks at the substance of the allegations made against A’s father, as set out in the schedule of findings relied upon by Darlington Borough Council. The president sets out that the schedule of findings contains allegations ‘in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”.’ This drafting confuses the distinction between an assertion of fact and the evidence needed to prove the assertion – the president asks, what do these words mean and where do they take one? [para 10].

The president cautions that ‘failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations’ [para 11]. This is exemplified in the president’s rigorous analysis and criticism of the local authority’s many various concerns and allegations in relation to the father, many of which were abandoned by the local authority during the course of the hearing. After undertaking this detailed analysis, the president reveals that, from the wealth of material which made up the local authority’s case against the father, only 4 allegations stand [paragraph 93] – and these 4 allegations do not establish a real possibility that A would suffer significant harm were he to be placed in the father’s care.

The second fundamental point ‘is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z’ [para 12].

The third fundamental point to bear in mind is the words of Hedley J in Re L (Care: Treshold Criteria) [2007] 1 FLR 2050, paragraph 50:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

This approach, the president notes, was endorsed by the Supreme Court in Re B (by Lord Wilson at paragraph 28 and by Baroness Hale at paragraph 143).

In his analysis of the allegations made against the father in Re A, the president is fiercely critical of the first social worker’s description of the father as ‘immoral’. SW1, to adopt the president’s nomenclature, criticises the father for failing to ‘acknowledge the immoral nature’ of the offence of having sexual intercourse with a 13-year-old girl when he was 17, an offence for which he received a caution. SW1 also criticises him for once being a member of the EDL, SW1 lamenting the ‘immoral nature of the values and beliefs of members of the EDL’ and stating that ‘A should reside within an environment that supports difference, equality and independence.’ SW1’s analysis on both points is described by the president as being ‘quite extraordinary’ [paragraphs 60 and 71]. The president criticises the analysis on 2 fronts (referencing to the second and third fundamental principles set out above), stating:

‘The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A?’ [para 60]

In reaching his decision to refuse the local authority’s applications, the president warns against social engineering and the type of thinking, exemplified in SW1’s assessments, which would result in it:

‘I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.’ [para 96]

A note of the use of s.20

A feature of the facts of Re A is the delay of 8 months from A’s birth to the local authority issuing care proceedings. Throughout these 8 months, A was placed with foster carers pursuant to section 20; the president describes this use of s.20 as ‘a misuse, indeed, in my judgment, an abuse, of the provision’ [para 100]. The president draws attention to and endorses the words of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam) in which a newborn was placed with foster carers pursuant to s.20 for 9 months before care proceedings were issued:

“I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

The accommodation of DS under a s.20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.’”

Conclusion

SW1, SW2, the social workers’ team manager, the local-authority legal department and the children guardian are all criticised for accepting – without critical analysis or detailed thought – the assumptions and conclusions made by SW1 in her assessments of the father. Re A, like Re B-S, is not a case which makes new law or puts any gloss on the existing law in respect of care and placement orders. Rather, it is a cautionary case wherefrom practical lessons can be learnt with respect to the quality of the evidence and the detail of the analysis required by the court when it is being asked to conclude that adoption is the only option.

Emily Reed

Emily Reed has a broad practice at Park Square Barristers, which encompasses children law. See Emily’s profile.