H Borough Council v CDP and Others

JurisdictionEngland & Wales
JudgeLord Justice McCombe,Lord Justice Richards,Lord Justice Longmore
Judgment Date13 October 2015
Neutral Citation[2015] EWCA Civ 1021
Docket NumberCase No: B4/2015/1656
CourtCourt of Appeal (Civil Division)
Date13 October 2015

[2015] EWCA Civ 1021





Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Longmore

Lord Justice Richards


Lord Justice McCombe

Case No: B4/2015/1656

In the Matter of A (Children)(Adoption/Long Term Foster Care)

H Borough Council
(1) CDP
(2) MA
(3) RD
(4)–(9) T, F, D, P, M and H

Alex Verdan QC (instructed by Hartlepool BC, Legal Division) for the Appellant

Janet Bazley QC, Catherine FaganandJackie Mckie (instructed by Donnelly Mcardle Adamson Solicitors and TMJ Solicitors) for the First and Second Respondents

Catherine Jenkins (instructed by Tilly, Bailey and Irvine LLP) for the Third Respondent

Kester Armstrong (instructed by Appleby, Hope and Matthews) for the Fourth to Ninth Respondents (by their Guardian)

Hearing date: 16 September 2015

Lord Justice McCombe

(A) Introduction


At the conclusion of the hearing on 16 September 2015 we announced our decision that this appeal would be dismissed and we ordered accordingly. We said that the reasons for that decision would be given in writing. This judgment sets out my reasons for the decision taken.


This was an appeal by a Local Authority, H Borough Council ("the LA") from the order of the Family Court at Middlesbrough (HH Judge Matthews QC) of 1 May 2015, made in care proceedings, whereby the court refused the LA's applications for final care orders (based upon care plans for adoption and placement orders) in respect of three children P (a girl), M (a girl) and H (a boy) (aged respectively 6, 5 and 3 years old). The orders were made on 1 May 2015, following a hearing on 22, 23 and 30 April 2015. The judge refused permission to appeal to this court. Permission to appeal was granted by King LJ on 2 July 2015.


The three children concerned are the three younger children of the First and Second Respondents ("the Mother" and "the Father" respectively). The three elder children of those parents are the Fourth to Sixth Respondents, T (a girl), F (a girl) and D (a boy). T is aged 13; F is 12 and D is 10. The Third Respondent ("RD") is a family friend with whom, for a time during these proceedings, all six children resided and with whom T and D still reside.


The issue on the appeal was whether the judge was wrong to conclude that long term foster care for P, M and H was to be preferred to the adoption favoured by the LA. The parents did not pursue in this court their argument that all the children should be returned to them at this stage. They did not, however, abandon the aspiration for the family to be re-united in due course. On that matter, I do not express any view.

(B) Background Facts


The LA first became involved in the affairs of this family in 2008. It identified concerns related to the parents' drug misuse, poor home conditions and consequent neglect of the children's well-being. T, F and D first became the subjects of child protection plans which were discontinued in 2009 in the light of progress made in addressing the family problems. Unfortunately, conditions deteriorated once more by 2011 and, the judge observed, there was a lack of "routine and boundaries" in the children's lives; medical appointments were missed and school attendance was poor. The Mother had mental health problems which impacted on her ability to provide proper care. Those problems, the judge observed, remained untreated at the time of hearing before her. As result of this ongoing deterioration of domestic conditions, these proceedings were initiated on 8 April 2014, but the children remained living with the parents until the making of interim care orders on 13 June 2014. At that stage, unopposed by the parents, the children were placed with RD, with provision for unsupervised contact. Unsupervised contact has continued throughout. While RD applied in July 2014 for a special guardianship order in her favour, by August 2014 she was struggling (as the judge said, not unsurprisingly and through no fault of hers) to care for all six children. By order of the District Judge of 12 September 2014, the younger three children were removed into the foster care of Mr and Mrs G. There was a proposal at that stage for the assessment of paternal grandfather ("PGF") as a potential carer for all the children and he was a respondent to the applications before the judge. However, for reasons which do not need further explanation, that proposal for the children to go into the care of the PGF came to nought and he has played no part in this appeal, although he was named as a respondent in the Appellant's Notice.


The initial care plans for the younger three children in the case proposed assessment of the PGF or adoption, with monthly contact for all and, if they were placed with adopters, with indirect contact for the parents and contact for the siblings three times a year. By her first report the Guardian recommended long term foster care. It was originally envisaged that a final hearing of the care proceedings would begin on 17 November 2014, but that was ineffective and the matter was re-listed for 3 February 2015. A further care plan for the three younger children (of 1 December 2014) proposed adoption with thrice yearly contact with the siblings and indirect contact with the parents. By a further report of 5 December 2014, the Guardian maintained her recommendation for long term foster care. On 23 January 2015 the LA issued its applications for placement orders in respect of the three younger children and on 2 February 2015 the Guardian revised her recommendation from one of long-term foster care to adoption for P, M and H, but with a "twin track" approach directed to finding, if necessary, a long term foster placement as a fall back.


The final hearing which had been set for 3–4 February 2015 also proved to be ineffective and, in due course, a new date was set (for an estimated two days) beginning on 22 April 2015. It was on that date that the case came on for hearing before Judge Matthews QC. It was accepted on behalf of the parents at that hearing that the "threshold" criteria under the Children Act 1989 had been satisfied, essentially by virtue of the history of intermittent neglect of all six children by the parents, as already summarised earlier in this judgment. The parents did not contest the making of care orders in respect of the three elder children or the arrangements for their care. However, they continued to argue for the return to them of the three younger children, alternatively for those children to be cared for by the PGF.


By amended care plans of 23 April 2015, the second day of the hearing and after the LA social worker gave evidence, the LA sought care orders in respect of the elder three children on the basis of long term foster placements, with RD for T and D and with another foster parent for F. For the three younger children, the LA sought care and placement orders with care plans providing for a 12 month exclusive search for adoptive placement, to include contact with the elder siblings three times per year but with placement being given priority over contact.


It appears that during closing submissions before the judge on 30 April 2015 the LA informed the parties and the court that it would further amend the plans to limit the exclusive search for an adoptive placement to 6 months, with a search for foster placement thereafter. It was not clear whether it was intended that this second period of search for foster placement was to be for that type of placement alone or coupled with a continuing search for adopters.


The judge delivered her judgment on 1 May 2015 refusing the applications for placement orders in respect of P, M and H. The case was listed for further hearing on 15 May, with directions for revised care plans to be submitted by 13 May. The interim care orders were directed to continue in the meantime. On 13 May further amended care plans for the three younger children were submitted, again directed primarily to the adoption course rejected by the judge in her judgment, but identifying work and support for the children towards the adoption process, the absence of which had been noted in the judgment. The LA proposed a search for six months, limited to adopters committed to sibling contact, on a "twin track" basis with long term foster care, with a reversion after that period to long term foster care only. It was acknowledged that if the search identified both foster placement and adoptive placement the LA would consider carefully which alternative best met the children's needs.


At the hearing of 15 May 2015, the LA indicated a desire to have time to consider an appeal against the judge's decision of 1 May 2015. As we were told by counsel before us, however, no submissions were made by the parties directed to the new care plans that had been lodged. A further hearing was fixed for 21 May 2015. As already indicated, at that hearing, the judge refused permission to appeal, having heard oral submissions. The Appellant's Notice was then issued on 22 May, with permission being granted by King LJ on 2 July. The Appellant's Notice directed a challenge to the judge's judgment and order of 1 May, although Mr Verdan QC for the LA, both in written and oral argument, sought to challenge the judge's failure to act upon the revised care plans of 13 May. This was opposed by Ms Bazley QC for the parents. However, for reasons that will appear, it did not seem to me that the somewhat altered focus in these new plans affected the outcome of the appeal which would be the same...

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