Abstract
Family member not approved as foster carer
Re T (A Child)
Court of Appeal
McFarlane, Peter Jackson and Newey LLJ
23 January 2018 [2018] EWCA Civ 650
A is a little boy, born prematurely in 2016 and placed into foster care as soon as he was ready for discharge from hospital. His father had mental health problems associated with drug use and his mother had had a difficult upbringing that left her with unaddressed therapeutic needs. His parents had already had two children each, all of whom were cared for elsewhere. Care proceedings were issued in September 2016 and A’s paternal grandmother put herself forward as a carer. A special guardianship (SG) assessment of her identified several positives but came to a negative conclusion, as did an addendum SG assessment. By November 2017, after hearing evidence that the parents were no longer seeking to care for A, but were supporting his placement with the paternal grandmother, a judgment was handed down. The judge concluded that there were two realistic placement possibilities: adoption outside the family or placement with the paternal grandmother. The placement with the paternal grandmother was not without concerns and the judge made it plain that she thought that the best option for A was to be placed with her under a care order, leaving the local authority to monitor and support the placement at an intensive level. This option was not, however, available to her as the local authority had refused to approve the grandmother as a foster carer. The judge adjourned the final hearing to allow the grandmother to be reconsidered by the fostering panel, with a copy of her judgment submitted to them. The social workers presenting the case to panel did not accept the judge’s findings and argued against placement. Panel made a recommendation, accepted by the agency decision-maker, that the grandmother was not suitable for approval as a foster carer. The judge, having made findings that the only safe placement with the grandmother would have been under a care order, therefore had to choose to place with her without the protection of a care order or to grant a placement order. She felt she had no option but to make a placement order. The grandmother appealed.
Held
The judge had been wrong to accept the local authority’s position as forcing her into the making of a placement order without challenging their decision. She should have called the agency decision-maker to explain their reasoning and should have tried to engage with the decision-maker to achieve the result that she thought was the best option for the child. Even if the local authority had stuck to their refusal to approve the grandmother as a foster carer the judge should have looked at alternative orders or combinations of orders which might have achieved a similar result, rather than allowing the decision of a fostering provider to force her into ruling that A should be placed for adoption because ‘nothing else will do’. It was noted that the decision-maker had simply endorsed the panel recommendation without undertaking the balancing tasks required and that the local authority had not accepted the finding of the judge as to the risk posed by placement with the grandmother, preferring instead to continue arguing that the risk was unmanageable. The Court of Appeal pointed out that the judge had not had the advantage of the detailed legal argument that they had before them and had not been reminded of the possibility, in exceptional circumstances, of wardship to enable the child to be placed with his grandmother.
The grandmother had also applied for judicial review of the local authority decision not to provide her with services which the judge had suggested would be able to mitigate the risks that she had identified. The case was remitted to a different judge to rehear the issue of placement with the grandmother only.
Comment
This illogical situation will be familiar to local authorities; a potential family carer might just be ‘good enough’ to care for a child with support from the local authority, but for whatever reason does not get approved as a foster carer. The court then has to consider making a lesser order giving that carer parental responsibility whereas a better carer might have been approved as a foster carer and parental responsibility vested in the local authority. In many similar cases a court would probably have made a special guardianship order to keep the child in the family, despite having a preference for a care order and family foster placement. In this case the judge had ‘boxed herself in’ by making findings that the grandmother should not have parental responsibility under a lesser order.
This case does not assist particularly in answering the difficult question of how far a fostering provider should go in relaxing the standards required of a foster carer when assessing a family member for a specific child. The Statutory Guidance certainly envisages that carers will be approved who do not meet all of the National Minimum Standards, but it is not evident just how far this should go, and in other areas, such as training and remuneration, it is very clear that family foster carers should have access to exactly the same opportunities as other foster carers. This judgment does not explain on what basis the court was able to have the grandmother’s case reconsidered by the fostering panel, as she was over six months out of time for submitting fresh evidence to the panel or applying to the IRM (Independent Review Mechanism) in accordance with the Regulations. It may be that the local authority agreed to treat this as a new application. In all other respects, both the judge and the local authority appear to have been completely entrenched in their positions. The court was fixed on the view that the only possible family placement would be under a care order with intensive support and monitoring, and the local authority were adamant that the grandmother could not be approved as a foster carer and that they would not be able to provide the support necessary to make a placement safe. Most importantly as far as the appeal was concerned, the local authority stuck to their own assessment of the risks of placement with the grandmother rather than accept the judge’s findings.
The Court of Appeal do not resile from the well-established principle that a local authority approves foster carers and makes placements in a process independent of the court, but do require that there be better discussion between the court and the decision-maker to try to implement a care plan which the court has decided would be in the best interests of the child. This becomes particularly important where the alternative for the child is adoption outside the family.
Section 38(6) Placement: assessment or treatment
Re Y (A Child) (S.38(6) Assessment)
Court of Appeal
Moylan and Peter Jackson LLJ
9 May 2018 [2018] EWCA Civ 992
The local authority issued care proceedings in respect of a baby whose parents had significant mental health difficulties and drug dependency. In the course of proceedings a psychiatrist advised that the best option for the mother would be a residential drug treatment unit for at least three months, but preferably six, with an alternative of an intensive day programme from community drug services. The court at first instance granted the mother’s application for an order under the Children Act 1989 section 38(6) that the local authority fund a placement of the child with her parents in Phoenix House, a residential detox unit. The court also directed that an independent social worker provide a parenting assessment as Phoenix House was not able to provide such an assessment. The local authority appealed, arguing that the placement was in a treatment unit and was not an assessment of the child necessary to assist the court to resolve the proceedings justly.
Held
The placement at Phoenix House would undoubtedly be beneficial for the parents and for the child and would provide information on the parents’ ability to abstain from drugs while and after receiving treatment. It was not however a residential assessment unit and although it included a parenting element in their programme, was not set up to assess a parent and child together. The court referred to two House of Lords judgments, Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1 and Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601, which establish that the focus of any assessment ordered must be the child, and quoted Hale LJ in the latter case: If the framers of the 1989 Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority.
Comment
Although it was clear that the best chance that this family had of showing the court that they could address their drug addiction and so be able to care for their child would have been to follow an intensive residential treatment programme, the court found that there was no power to order the local authority to fund such an arrangement. The main focus of the assessment must be the child and although this definition is widely interpreted to include an assessment of the parents’ capacity to care for a child, cannot include a programme of treatment.
Children in care: deprivation of liberty
Re A-F (Children)
High Court Family Division
Munby P
31 January 2018 [2018] EWHC 138(Fam)
This judgment covers a number of different cases involving seven children, all of whom are subject to full care orders and all of whom have difficulties that require the local authority to impose some restrictions on their movement or liberty. The children’s ages range between 11 and 16. None of them were subject to secure accommodation orders and they were in either foster placements or residential units. The issue is the extent to which the restrictions on a child in care amount to a breach of their right to liberty under Article 5 of the European Convention on Human Rights (ECHR) and what would amount to a lawful procedure to authorise such restrictions. The President considers the authorities and distils them down to basic principles to be applied in practice:
The deprivation of liberty consists of (a) ‘confinement’ in a particular place for a not negligible period of time, (b) a lack of valid consent and (c) the attribution of responsibility to the state. (c) will inevitably be met where a child is in the care of a local authority. Where a child is subject to a care order neither the local authority, parent or foster carer can provide valid consent. The child may do only if they are Gillick competent. The very young are not ‘confined’ as all young children, in family homes or in foster care, need to be kept under constant supervision and their movements restricted – the example given is of a three-year-old next to a busy road. A typical 15-year-old is not ‘free to leave’ their home, whether that be family home or local authority care, as they do not have the capacity to arrange alternative accommodation for themselves. The central issue for older children is likely to be whether or not they are under ‘complete supervision and control’, which would amount to a deprivation of liberty. The dividing age is not fixed and each case must be considered on the facts, comparing the restrictions with ways in which parents would usually restrict the movements of their children; examples given include sending a child to bed when they would rather be up or ‘grounding’ a teenager. As a ‘rule of thumb’ the President suggests that a child of 10 is unlikely to be ‘confined’ even if under pretty constant supervision. A child aged 11 might be confined, although the court should not jump to that conclusion too readily, and a 12-year-old under constant supervision might very well be considered ‘confined’. The comparison should be made with a typical child of the same age, with no physical or mental disabilities, living with parents at home without any local authority involvement. A relevant comparator might also be whether the child lives in the countryside or in a city. Confinement will be lawful if it is necessary and proportionate and authorised by a judge of the Family Division. An application should be made to the High Court (or to a section 9 judge) where the child is living in circumstances which arguably amount to a deprivation of liberty. The court need not authorise all the specific elements of a deprivation of liberty, but should be given a general description (a care plan) and specifically authorise medication and the use of restraint. There must be an oral hearing, although directions may be given after consideration of papers only, and the child must be a party. A children’s guardian must be appointed (if possible the one from the care proceedings) and the child should be able to express his wishes and feelings to the judge in person. The evidence should include the regime proposed, identifying the elements of confinement; the child’s circumstances and reasons for confinement; why the child’s welfare requires confinement and why no less restrictive regime will do; the views of the child, parents and IRO [Independent Reviewing Officer]; the care plan, minutes of the LAC review and most recent health reports. If a child is considered competent to consent to confinement, evidence on the competence should come from a psychologist or psychiatrist and not simply from a local authority social worker. If a deprivation of liberty is anticipated at the time of issue of care proceedings, they should be issued in the Family Court but allocated to a section 9 judge (the C110A form will be amended to include this option). If the need for a deprivation of liberty arises during proceedings they should be reallocated to a section 9 judge – the care proceedings will not be transferred to the High Court and a section 9 judge can hear both sets of proceedings together, sitting simultaneously in both courts. If this is not possible, a separate hearing should be listed in front of such a judge within days of the final hearing. If care proceedings have been over for some time, application must be made to the Family Division. Reviews must take place at least every 12 months, earlier if there is a significant change in circumstances. The child must be a party and have a children’s guardian. The court may carry out a review on paper if there has been no significant change in circumstances or may direct an oral hearing. Proceedings will be concluded after each review and the local authority must make a fresh application for each review.