Re S (A Child) and Re W (A Child) (s 20 Accommodation)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Arnold,Lord Justice Warby |
| Judgment Date | 05 January 2023 |
| Neutral Citation | [2023] EWCA Civ 1 |
| Docket Number | Case No: CA-2022-001329 & CA-2022-001232 |
| Court | Court of Appeal (Civil Division) |
In the matter of:
[2023] EWCA Civ 1
Lady Justice King
Lord Justice Arnold
and
Lord Justice Warby
Case No: CA-2022-001329 & CA-2022-001232
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM
Re S:
CROYDON FAMILY COURT
His Honour Judge Atkins
ZE21C00312
Re W:
THE FAMILY COURT AT DARTFORD
Her Honour Judge Coffey
ME22C50060
Royal Courts of Justice Strand, London, WC2A 2LL
Re S Appeal
Deirdre Fottrell KC and Joan Connell (instructed by Taylor Rose MW) for the Appellant
Mark Twomey KC (instructed by South London Legal Partnership) for the First
Respondent London Borough of Sutton
Emily James (instructed by Philcox Gray & Co) for the Second Respondent
Joanne Brown (instructed by Creighton and Partners Solicitors) for the Third Respondent Child's Guardian
Re W Appeal
Alison Easton (instructed by Russell-Cooke Solicitors) for the First and Second Appellant Nick O'Brien (instructed by Invicta Law) for the First Respondent Kent County Council
Eilidh Gardner (instructed by GT Stewart Solicitors) for the Second Respondent Child's Guardian
Hearing dates: 1–2 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
These appeals concern the interplay between care orders which have been made pursuant to section 31 Children Act 1989 (‘CA 1989’) and the voluntary accommodation of children in need under section 20 CA 1989 (‘section 20’). The issue is whether and in what circumstances, the threshold criteria having been established and there being in place an agreed care plan, the court should decline to make an order under section 31 CA 1989 and instead should make no order in accordance with the ‘no order’ principle as set out in section 1(5) CA 1989.
Re S is an appeal against the order of HHJ Atkins of 24 June 2022 whereby he ordered that a child S, aged 9 years, should be made the subject of a care order in favour of the London Borough of Sutton (‘LBS’).
Re W is an appeal against the order of HHJ Coffey dated 16 June 2022 whereby she ordered that a girl W, aged 15 years, should be made the subject of a care order in favour of Kent County Council (‘KCC’).
Background Facts in Re S
S, a boy, is now aged 9 years and is one of two children of GSt (‘S's mother’) and GSs (‘S's father’). S has a younger brother, M. S has a number of complex needs including ASD, ADHD and a lack of awareness of danger together with significant behavioural issues.
In June 2017, the parents separated after an incident when S's father spat and grabbed S's mother whilst he was drunk. In September 2017, he turned up at the family home drunk and banging on the door and the police were called. Thereafter, S's mother has had exclusive care of S and M without the necessity of a court order in her favour. On 5 August 2020 there was a further incident when the father banged and kicked the door and dented S's mother's car door. This incident resulted in a conviction for damage to property.
S's father suffers from low mood, anxiety and depression and misuses alcohol and drugs. He has also been assessed to have a low average full scale IQ of 80. S's father struggles to engage in assessments and is unreliable in exercising contact with S, although he has never sought to interfere with or undermine S's mother's care of either S or M.
Over time, S's behaviour became increasingly challenging and on 20 January 2021 S's mother called the child practitioner saying she was struggling to cope and would like S to be accommodated. In response to this, LBS's support for S's mother was increased to 59 hours a week. On 10 March 202, both S and M were made subject to Child Protection Plans under the category of emotional harm, the harm anticipated being that to S in the event that he became separated from his family as a consequence of being accommodated by the local authority.
Notwithstanding this additional daytime support, S's mother reached the stage where she knew she could no longer manage to look after S at home. A phased transition of S to LH a residential unit started on 28 April 2021 and on 9 May 2021 S moved there entirely. S has remained at LH ever since. He is settled and making excellent progress within the confines of his disabilities. LBS initially approached this placement as one of respite care with a view to S returning to the care of his mother in due course. S's mother, having done all she possibly could to care for S for the previous 8 years, had made what she described as the ‘agonising decision’ to request accommodation for S and she knew that rehabilitation was simply not an option, guilty and distressed though she felt about having reached that conclusion. S's mother accordingly told LBS on 18 May 2021 that she could not envisage caring for S as he grows older and stronger, but that she did not want LBS to issue care proceedings.
Unfortunately, S's father was not told until 4 May 2021 that S was moving to a residential placement. He was initially against such a placement and put forward what was clearly an unrealistic proposal, that he should care for S with support. The father soon realised that S had settled well at LH and that his needs were being met. Therefore, a few weeks later he filed a statement in the care proceedings saying that he understood the need for and would now sign, a section 20 agreement. This he did on 2 July 2021. S's father has not, at any time in the intervening 16 months, sought to withdraw that agreement, nor has he given anyone cause to think that he may do so.
LBS issued care proceedings on 22 June 2021. This was said to be as a result of their concern that S's mother was, as they perceived it, unable to ‘commit’ to S's return home or alternatively to a timescale for his rehabilitation. For reasons that are unknown, the care proceedings were issued in relation to both S and his younger brother M. The care plan was for an interim supervision order with a view to rehabilitation of S to his mother's care or alternatively, an interim care order. No interim care order was made and S has continued to be accommodated under section 20 throughout the proceedings. On 17 August 2021, LBS sensibly withdrew the proceedings in relation to M.
Within the ensuing care proceedings, Dr Tammy Surgenor, an independent clinical psychologist, was appointed by the court to assess S and each of the parents. Dr Surgenor set out S's complex presentation, highlighting his significant needs in terms of his emotional and behavioural regulation. Dr Surgenor's expert opinion was that S is ‘extremely challenging’ to parent and that it was difficult to envisage how a lone carer, even with a high level of support, would be able to meet his needs. She concluded that it was difficult to envisage how those needs could be met by an individual person or within an environment where carers were not specifically trained to understand and manage his needs. S, she said, ‘requires a specialist residential unit with a high staff-child ratio in order to reduce the compassion fatigue that would be associated with caring for a child with such complex needs’.
Dr Surgenor recommended weekly contact with S's mother moving to overnight stays and monthly supervised contact with S's father, with that level of contact to be reviewed if he could demonstrate that he could attend consistently.
LBS filed its final statement in the care proceedings on 4 April 2022. Within the statement is a balance sheet which considered the factors for and against S remaining accommodated under section 20. One of the factors against such an outcome was said to be that ‘section 20 is not an effective or appropriate mechanism for children requiring long term care and care planning and does not provide adequately for emotional or practical security or stability needs of a child or those caring for that child on a day-today basis and into the future’.
The court also had the benefit of a Cafcass report. The Cafcass officer, Ms Bedu, considered the totality of the evidence which included a parenting assessment carried out by an independent social worker, Ms Cole. It is recorded that Ms Cole had told Ms Bedu that had it not been for the case law regarding the misuse of section 20, she would not have been certain about the need for a care order. Ms Cole's ambivalence was doubtless due to her view that S's mother was an ‘extraordinary mother who has fought for many years to get the support her son needs’. She was, she said, confident that S's mother would not act in any way that would undermine S's placement.
So far as S's father was concerned, Ms Bedu had observed that despite his inconsistent contact with S, when contact did take place, it was of good quality and loving and that S responded well to his father's care. Dr Surgenor, who had also observed a contact session, referred to S's father as being ‘patient and tolerant, affectionate’ and ‘accepting of feedback’ as to how best to connect with S. Ms Bedu concluded that ‘quite possibly’ the main risk from S's father would be that ‘he would disappear from his life altogether’. Ms Bedu sounded a proper note of caution, however, saying that just because S's father had not undermined the placement so far, that did not mean that he would not do so in the future.
LBS accepted the recommendation of Dr Surgenor and no longer sought the rehabilitation of S to his mother. Nevertheless, they continued with the care proceedings. The case summary prepared for the judge by LBS argued that section 20 was not appropriate on a long-term basis for the child. Given that neither parent felt able to assume S's care in the foreseeable future and given S's age, it was, the case summary said, ‘essential’ that...
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