T (A Child), Re, Court of Appeal - Civil Division, March 28, 2018, [2018] EWCA Civ 650

Resolution Date:March 28, 2018
Issuing Organization:Civil Division
Actores:T (A Child), Re
 
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Case No: B4/2017/3411

Neutral Citation Number: [2018] EWCA Civ 650

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE

HHJ DOWDING

BM16C00243

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28 March 2018

Before :

LORD JUSTICE McFARLANE

LORD JUSTICE PETER JACKSON

and

LORD JUSTICE NEWEY

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Dorothy Seddon (instructed by Carvers Solicitors) for the Appellant

Deirdre Fottrell QC and Julien Foster (instructed by Birmingham City Council) for the Local Authority

Lucy Hendry (acting pro bono) for the Mother

Lawrence Messling (acting pro bono) for the Father

Nina Bache (instructed by Osborne & Co. Solicitors) for the Children's Guardian

Hearing date: 13 March 2018

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JudgmentLord Justice Peter Jackson:

Introduction

  1. This appeal concerns the powers and duties of local authorities and the family court when considering an application for a placement order. Where the court decides that a child could live with a family member, but only if there is support and monitoring from the local authority, and the local authority declines to provide that support and monitoring, how should the court respond?

  2. This unusual situation arose in the case of a little boy, now 18 months old, whom I will call Alan. On 21 November 2017, Her Honour Judge Dowding made a care order and a placement order allowing Birmingham City Council to place him for adoption. That had been opposed by Alan's parents, but by the time the judge made her order, they accepted that neither of them could look after him themselves. Instead, they supported his living with his paternal grandmother. She was a party to the proceedings, and she now appeals to this court. Her appeal is supported by both parents, opposed by the local authority and not supported by Alan's children's guardian.

  3. The ultimate question was whether an order leading to Alan's adoption was shown to be necessary. Having heard all the evidence, the judge found on a narrow balance that the best outcome would be for him to be placed with his grandmother under a care order. However, that could not happen because the local authority had refused the grandmother's application for approval as a foster carer. The judge asked it to reconsider. It did reconsider, but maintained its position. The judge then made a placement order. On 17 January 2018, I granted permission to appeal.

  4. On 13 March, we heard argument from the parties, at the end of which we announced that the appeal would be allowed and that the grandmother's claim must be reheard. This judgment contains my reasons for agreeing with that decision.

    Background

  5. Alan's family history is complex. His paternal grandmother, who is 46, has five children: A, the father, J, M(15) and M(13). The older two children share the same father, while the younger three have different fathers, none of whom has played an ongoing role in the children's lives. The grandmother is to some extent estranged from M(15), who has lived with his grandparents since the age of 13, but M(13) lives with her in her three-bedroom house. So, the grandmother is an experienced parent who has not experienced any local authority intervention in relation to her own children. However, the position of those children is mixed. A is well-established in life. M(13) lives at home and there are no concerns about her care. But M(15) is living with his own grandmother, while J and Alan's father have both had difficulties, particularly with drugs.

  6. Alan's father, the grandmother's second child, also has significant mental health problems associated with cannabis use. He has two older children, aged 6 and 4, who live with their mother and with whom he is allowed only supervised contact. The grandmother is one of the supervisors.

  7. Alan's mother had a very unfortunate childhood, coming into local authority care after both her parents were imprisoned. She has two older children, who were adopted at a young age. She has unaddressed therapeutic needs as a result of these experiences.

  8. The parents' relationship began in late 2015 and the mother almost immediately became pregnant. Alan was born prematurely in the summer of 2016, and was placed in foster care as soon as he was fit for discharge from hospital. Against the family background, assessments were obviously necessary, but it is very concerning that it has taken so long for his future to be decided.

  9. These are the milestones in the proceedings:

    9.9.16 Application for care order

    16.9.16 Interim care order

    20.10.16 Assessment of grandmother by Miss B, identifying concerns but agreeing to progress special guardianship assessment

    25.1.17 Special guardianship assessment of grandmother by Mrs C - a number of positives, but on balance negative

    16.2.17 Addendum special guardianship assessment - negative

    28.2.17 Fostering panel refuses to approve grandmother as a family and friends foster carer

    28.3.17 Application for placement order

    20.4.17 Grandmother granted party status

    19.6.17 Final hearing - evidence taken over 5 days from local authority witnesses and mother, adjourned part heard

    8.17 Family plan started by family group conference team but not completed

    28.8.17 Hearing resumes, evidence taken over two days from father, grandmother, guardian and others; during this hearing, the parents' case changed to supporting the grandmother; the case was adjourned for written submissions

    2.11.17 Main judgment handed down

    6.11.17 Second fostering panel refuses to recommend approval of grandmother

    9.11.17 Agency Decision Maker accepts panel recommendation

    13.11.17 Hearing resumed for oral submissions

    21.11.17 Second judgment handed down and orders made

  10. Into this chronology can be added the fact that in January 2017, there was a working agreement between the local authority, the parents and the grandmother about the arrangements for contact between the father and his older children. This issue was explored during the second part of the hearing, with the judge hearing from those children's mother, and from the father's brother. At all events, the judge was mindful of the need to consider the extent to which the parents would be able to respect the grandmother's authority if she became Alan's primary carer.

  11. The position of the other parties in response to the local authority's application evolved during the hearing. By the end, the parents were supporting the grandmother, while the guardian advised that Alan should be placed in his grandmother's care under a care order. Accordingly, she recommended that a final order should not be made until the local authority had had an opportunity to reconsider its care plan.

  12. For its part, the local authority had filed an alternative care plan for the court to consider in the event that Alan were to be placed with his grandmother, but the document spent more time emphasising that this was not the local authority's preferred course than indicating what support services might be made available. In reality it was no more than an empty shell.

    The judgments and the panel decision

  13. The first judgment is lengthy and thorough. Having described the background, the course of the hearing, and the law, the judge then summarised the evidence of the nine witnesses from whom she had heard. Much of their evidence related to the question of whether Alan could live with his parents, but there was a significant amount relating to the grandmother's position:

    · Miss B, the allocated social worker and author of the Schedule 4 assessment, identified a number of positives in the grandmother's potential as a carer and her willingness to accept support to improve her parenting skills. However, Miss B was concerned about aspects of the family situation that might cause emotional harm to Alan if he was placed within the family. She referred to the unhelpful influence of the grandmother's own mother. She was also concerned about the grandmother's ability to maintain boundaries and stop the father from seeing Alan whenever he wanted.

    · Mrs C, the special guardianship assessor, also expressed views of this kind. She was not concerned about the grandmother's parenting skills, but about her conflict management and what she described as ``entrenched family dynamics''. She noted problems in the relationship between the grandmother and her own mother and between the grandmother and her other sons. She considered the fact that M(15) had moved away from home to live with his grandmother at the age of 13 to be a serious issue. She also expressed serious reservations about the grandmother's ability to manage contact, although she was supporting her son's contact with his older children, making the point that the current good relationship between mother and son may not last. Mrs C was also concerned about the grandmother's relationship history. It was not the number of relationships, but the speed at which they developed and the involvement of the children with her partners, with one partner moving into the home some years ago within four months of the relationship beginning. The grandmother's most recent relationship ended in September 2015.

    · The mother expressed positive views about the grandmother, but the judge noted that, though a pleasant young woman, she was capable of moments of aggression which might cause discord in their future relationship.

    · The father said that he would fully support Alan's placement with his mother. The judge noted that the father's mental health issues meant that she had to consider whether he would be likely to comply with restrictions upon his contact with Alan. She concluded that he was a young man who likes his own way.

    · The grandmother described family relationships as being good at the present, except as regards her own mother. She described...

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