Re C-D (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Lewison |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWCA Civ 501 |
| Date | 08 April 2020 |
| Docket Number | Case No: B4/2019/2859 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 501
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HER HONOUR JUDGE WRIGHT
ZC18C00455
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Lord Justice Moylan
Case No: B4/2019/2859
Ms M Jones and Ms M Walters-Thompson (instructed by Morrison Spowart Solicitors) for the Appellant Mother
Mr R Beddoe (instructed by Camden Legal Services) for the Local Authority
Ms A Musgrave (instructed by Duncan Lewis Services) for the Child's Guardian
Mr R Carroll (instructed by Swain and Co) for the Father
Hearing date: 24 th March 2020
Approved Judgment
The mother appeals from the order made by HHJ Wright on 28 th October 2019 in respect of her son (who I will call B) aged 10. The judge made a care order and an order under s. 91(14) of the Children Act 1989 (“the 1989 Act”).
B has been in the care of the Local Authority since 25 th October 2018. He previously lived with his mother. His father has been in prison since 2011.
On this appeal, the mother is represented by Ms Jones and Ms Walters-Thompson (who did not appear below); Mr Carroll has provided written submissions on behalf of the father; the Local Authority is represented by Mr Beddoe; the Guardian is represented by Ms Musgrave (who did not appear below). The Local Authority and the Guardian both oppose the appeal, as does the father.
During the course of the hearing, Ms Jones told us that the order she sought was for the matter to be remitted with the mother's sister being given the opportunity to have legal advice and representation to enable her to have effective access to justice so that the option of B living with her pursuant to a special guardianship order could be properly assessed. This was based significantly on this court's decision in In re P-S (Children) (Care Proceedings: Special Guardianship Orders) (Association of Lawyers for Children intervening) [2018] 4 WLR 99.
At the end of the hearing, which took place remotely, we informed the parties that the appeal would be dismissed. These are my reasons for agreeing with that decision.
Summary
The order of 28 th October 2019 was made at the conclusion of what had become a split final hearing. The first part, which was intended to be the final hearing, took place in July 2019. The maternal aunt (“MA”) was expressly given permission to and did attend that hearing. At that hearing the Local Authority sought a care order, the care plan providing that B would either live with foster carers or in a residential home. The mother had sought B's return to her care but, on the first day of the July hearing, she accepted that this could not happen. The mother, alternatively, and the father sought B's placement with his maternal aunt under a special guardianship order. The Guardian supported the Local Authority's position.
The judge gave her substantive judgment on 23 rd August 2019. She determined that the threshold criteria under s. 31 of the 1989 Act were established. She also determined that B “would be at risk of significant harm in the care of either of his parents in the short and the longer term”. She also accepted the, effectively unanimous, professional evidence that a special guardianship order (“SGO”) in favour of MA would not meet B's needs and would place him at risk of further unacceptable harm. The only “realistic option” which the judge considered would meet B's future needs was a care order.
However, the judge decided, based principally on the evidence of an Independent Social Worker (“the ISW”), that before the proceedings were finally determined further assessments should be undertaken of MA to see whether B might be able to live with her as a kinship foster carer. This was because, as the judge said in her August 2019 judgment, placement with MA had “many advantages” compared with “foster/residential placement”.
The Local Authority agreed to amend its care plan and to instruct an ISW to undertake a kinship foster assessment of MA.
A case management hearing took place on 4 th October 2019. The judge was informed that a foster placement for B, which could be either short or long term, had been identified. B had been in a residential placement since early June 2019 following the breakdown of his then foster placement. The judge refused the mother's application for MA to be joined as a party. She also informed the parties that she proposed, at the next hearing, to consider whether to make an order under s.91(14). She asked the Guardian specifically to address the likely effect on B and the stability of his placement of further litigation.
At the adjourned hearing on 28 th October 2019 the judge made a final care order. She decided that it was “not in B's welfare interests for further investigations as to his placement and contact arrangements to be made outside the looked-after children process”. The judge also made an order under s.91(14) in respect of both the mother and the father until 18 th October 2021.
One other matter which I should address in this summary introduction is that of contact between B and his mother. In her August 2019 judgment, the judge approved the arrangements for contact set out in the care plan. They provided for a staged reduction in direct contact to once every two months together with contact between B and MA.
Grounds of Appeal
The grounds of appeal challenge both the care order and the s.91(14) order. Although, in her oral submissions, Ms Jones focused on grounds (2), (4) and (5), I set them all out and will deal with each of them later in this judgment. I will use the paragraph numbers as they appear in the grounds but I propose to set them out in a different order.
A number of procedural issues are raised: (5) that appropriate provision was not made to ensure that MA had effective access to justice; and (1) that the arrangements for contact between B and his mother were approved without the court hearing evidence or submissions.
In respect of the care order, the following grounds are advanced: (2) that the judge was wrong to make a care order in the absence of any or any sufficient analysis of the available options; (3) that the judge wrongly equated foster care with a family member to foster care with a non-family member resulting in no consideration of proportionality; (4) that the final care order was made prior to the completion of MA's assessment as a foster carer and without any support plans; and (6) that the judge failed to consider the welfare checklist in full and omitted other relevant factors.
In respect of the s.91(14) order: (7) that the court was wrong to make this order.
Background
I need only set out a very brief summary of the background to the commencement of the care proceedings in June 2018.
There had been longstanding concerns about the parents and their care of B. This was because of a number of issues including domestic violence; the father's criminality culminating in a significant term of imprisonment in 2011; and the mother's mental health and generally neglectful care of B. The family had received a high level of support including from CAMHS; the Anna Freud Centre; social workers; and adult social care.
B had been the subject of child protection plans in 2009, 2011 and 2015. The Public Law Outline process was commenced in 2017. The latter followed, to quote from the August 2019 judgment, “poor attendances (at school), increasing inappropriate and challenging behaviour from B, inconsistent care from the mother, as well as poor home conditions, the mother being unwell and depressed and struggling to manage”. The mother and B were offered “systemic family therapy with CAMHS but this was discontinued due to sporadic engagement”. The mother was “obstructive (and) often refused home visits”.
In early 2018 “a similar pattern continued of B's poor school attendance combined with disruptive behaviour, the mother's inability to co-operate with professionals as well as refusal to allow home visits and missed appointments”. In early June 2018 the mother said that she and B would be travelling but refused to give any other details. B returned to school in late June and “refused to give any details about where he had been”.
In late July 2018 the mother and B again disappeared. This led to the commencement of care proceedings at the end of July.
The Proceedings
An interim care order was made on 25 th July 2018 together with a recovery order.
B was not found until the end of October when the mother brought him to court following a nationwide search. The mother said that they had stayed at various places in different parts of the country. During this time “B had no access to education, no stable home, no access to professional support and the mother was unwell with no appropriate medical and social support system around her”. As referred to above, B has been living with foster carers or in a residential home since the end of October 2018.
A raft of evidence was obtained for the proceedings. This included a psychiatric report of the mother; an ISW's assessment of the mother; an initial viability assessment of MA as a carer for B; a special guardianship assessment of MA by the ISW; and a psychological assessment of B.
Because the mother's case on this appeal relies on aspects of the evidence from the psychologist, I propose to deal with it in some detail. However, I first set out the effect, as summarised in the August judgment, of the psychiatrist's evidence. The mother's “history and presentation...
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